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.

Categories
All Countries Haiti

2020 RLLR 90

Citation: 2020 RLLR 90
Tribunal: Refugee Protection Division
Date of Decision: June 23, 2020
Panel: Reisa Khalifa
Counsel for the Claimant(s): Luciano Mascara
Country: Haiti
RPD Number: MB7-17566
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000009-000019

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division in the claim for refugee protection of [XXX] (the Claimant), citizen of Haiti. He is seeking asylum under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

DECISION

[2]       The Panel concludes that the Claimant has established that he faces a serious possibility of persecution in Haiti, on the basis of his membership in a particular social group, namely Haitian men who are HIV-positive.

[3]       The Panel therefore finds that he is a “Convention refugee” pursuant to section 96 of the IRPA and accepts his claim.

SUMMARY OF ALLEGATIONS

[4]       The Claimant’s detailed allegations are contained in his Basis of Claim form (BOC).[1]

[5]       In summary, the Claimant fears for his life if he were to return to Haiti, as he is HIV- positive and the legal and socio-cultural environment of Haiti is hostile and even violent towards individuals with HIV, such that they may be attacked or discriminated against, may be denied medicine, food and shelter, and will not receive police protection.

[6]       The Claimant left Haiti around 1999 due to threats against him related to a family dispute and threats from his girlfriend’s brother, and went to the Dominican Republic, where he remained for 12 years under temporary residence visas that he kept renewing.

[7]       He then met an American woman of Haitian origin and they married, before moving to the United States (U.S.) together in [XXX] 2012. The Claimant had the status of a conditional resident of the U.S., which was based on his marriage to a U.S. citizen. This status allowed him to receive a U.S. permanent resident card in [XXX] 2012 that was valid until [XXX] 2014.

[8]       The relationship deteriorated, as the Claimant alleges that he was the victim of abuse by his wife and her adult son. His wife kicked him out of the house, and he found himself homeless.

[9]       In 2014, the Claimant became ill and went to a hospital, where he was diagnosed with HIV.

[10]     The Claimant applied for the renewal of his U.S. conditional resident status on its expiry. He then applied to remove the conditions of his residential status in 2016, by submitting various documentation to the U.S. authorities in an attempt to demonstrate that he had been in a good-faith marriage that had ended due to abuse, including a personal statement to explain his situation, a police report regarding an incident with his wife’s son, a letter from a [XXX], three affidavits in support of his application, and the marriage certificate.

[11]     The Claimant received a notice in [XXX] 2017 from the U.S. authorities that required him to submit additional documentation in support of his application, including proof of children of the marriage, proof that he and his wife had a common residence, a joint bank account statement with his wife and any joint financial planning arrangements. As the Claimant had no children with his wife, had been kicked out of the house, was in fact homeless and did not have a joint bank account with his wife, he had no additional documentation to provide.

[12]     The notice informed the Claimant that he must provide the additional documentation by [XXX] 2017 and that if he failed to do so, his application could be denied. As the Claimant did not believe that he could obtain any further documentation to satisfy the request, fearing deportation, he left for Canada in [XXX] 2017.

[13]     The Claimant claimed asylum here in [XXX] 2017.

ANALYSIS

Identity

[14]     The personal and national identity of the Claimant is established, on a balance of probabilities, by the documentary evidence on file, specifically his Haitian passport[2].

Exclusion 1E: Status in the United States

Intervention by Minister

[15]     The Minister of Immigration, Refugees and Citizenship Canada (the Minister) intervened in writing and in person at the hearing, regarding a possible exclusion under section 1E of the Convention[3].

[16]     The Minister submitted that the Claimant should be excluded under section 1E due to his conditional resident status in the U.S., which they submit is a status with rights similar to that of nationals in the U.S., because he had left the country before receiving a confirmation as to whether or not that status had been revoked, after having taken appropriate action to remove the conditions associated with his conditional resident status.

[17]     The Minister’s position is that because the Claimant did not wait to receive a conclusive response regarding his status and did not return to the U.S., he should be considered to have voluntarily abandoned his conditional resident status in the U.S.

[18]     The Minister also submitted that the Claimant showed an absence of subjective fear that undermined his credibility, due to his decision to leave the U.S. and not return.

Status of the Claimant in the United States

[19]     The Claimant lived in the U.S. from [XXX] 2012 to [XXX] 2017. He was granted conditional resident status there in [XXX] 2012, which had been set to expire in 2014, but was then renewed and extended in [XXX] 2016 for another year.

[20]     According to the national documentation package for the United States, conditional residents have the right to work without restrictions, to study, to access social services, to leave and return without requiring a visa.[4] This information was also reflected in the exhibits of the Minister relevant to this issue.[5]

[21]     The Panel finds that the Claimant, as a conditional resident in the U.S., had rights that were substantially similar to those of nationals of that country.

Claimant’s Lass of Status in the United States

[22]     The Claimant’s conditional resident status had been extended until [XXX] 2017,[6] prior to him receiving a notice in [XXX] 2017.[7]

[23]     The [XXX] 2017 notice indicated to the Claimant that if he did not provide additional documentation in support of his application to remove the conditional status of his residence, his “case may be denied.”

[24]     The Claimant left the U.S. in [XXX] 2017.

[25]     Conditional residents who travel abroad for an extended period of time may apply for a re- entry permit prior to leaving the United States, which the Claimant did not do.

[26]     Conditional residents who fail to apply for a re-entry permit and who have lived outside the U.S. for more than two years may apply for a returning visa outside the country, but are not guaranteed admission into the U.S.

[27]     Given that the Claimant had left the country in [XXX] 2017 and given that his conditional resident status had only been extended to [XXX] 2017; given that the Claimant had applied to remove the conditions of his status, but had been told to provide further documentation that he then did not provide, failure to do so was advised that his application could be denied; given that the Claimant did not apply for a re-entry permit before leaving the U.S.; given that the Claimant did not apply for a re-entry permit after leaving the U.S., and more than two years have passed; the Panel finds that, on the balance of probabilities, the Claimant had lost his conditional resident status on the day of the hearing.

Zeng Analysis

[28]     The Panel must therefore examine the factors set out in Zeng[8], and consider the reason for the Claimant’s loss of status (voluntary or involuntary) in the United States; whether he could return to the country, the risk that he would face in his home country of Haiti, Canada’s international obligations, and any other relevant facts.

[29]     The Claimant alleges that he left the U.S. after trying to stabilize his status there, by submitting an application and supporting documentation in order to remove the conditions of his residence there.

[30]     The Claimant had submitted the following documents in support of his application: a personal statement; a police report; psychotherapy and counselling letters; three affidavits; a document indicating his residence; a budget letter; medical records; photographs; and his marriage certificate.

[31]     The Panel considers that the efforts put in by the Claimant to regularize his status in the

U.S. by renewing his conditional resident status, then by applying to remove the conditions on his residence, were reasonable. He prepared the necessary paperwork and provided numerous documents in support of his application.

[32]     The Panel considers that the decision of the Claimant to leave the United States, in the face of being advised that his application could be refused for not providing additional documentation, was reasonable due to his inability to provide the additional documentation requested by the authorities: he and his wife did not have children, so he could not provide any documents in that regard; he had been kicked out of the matrimonial home and did not have any documents that indicated his name was associated with the matrimonial home, as he had testified that the home was leased in his wife’s name; the Claimant did not have a joint bank account with the wife; and finally, the Claimant and his estranged wife had not made any joint financial arrangements.

[33]     It is therefore entirely reasonable that the Claimant would consider that he did not have the required documentation in order to finalize his claim for status in the U.S. The Panel finds that his decision to leave was based on his understanding that, on the balance of probabilities, his claim would be denied due to a failure to provide the additional documents. His failure to apply to re­ enter the U.S. is also found to be reasonable when looking at the facts through this spectre.

[34]     The Panel finds that the departure of the Claimant can therefore be deemed involuntary, as he believed that his failure to provide further documentation to the U.S. authorities would lead to his status being denied and his deportation back to Haiti. The Panel finds that in the context that the Claimant believed himself, on the balance of probabilities, to face deportation from the U.S. for the reasons just described, it is reasonable to believe that the Claimant believed that he had no choice but to leave.

[35]     The Panel finds that the Claimant is credible with respect to his allegations of fear of return to Haiti as an individual who is HIV-positive. The Claimant’s testimony regarding his reaction to finding out that he had HIV and his resulting alienation from family members in Haiti, including his sister who stopped talking to him after learning that he was HIV-positive, was credible and consistent with the socio-cultural environment in Haiti for HIV-positive individuals, as indicated in the national documentation package for Haiti.

[36]     When considering Canada’s international obligations, the Panel finds that the Claimant would face the serious possibility of persecution in Haiti based on his HIV status, as discussed more fully below, and that this engenders refugee protection.

[37]     The Panel therefore considers that Canada would be respecting its international obligations under the Convention by granting the Claimant asylum due to his credible allegations regarding his loss of status in the U.S. and his fear of return to Haiti.

Conclusion regarding Exclusion

[38]     The Panel therefore concludes that the Claimant is not excluded under section 1E of the

Convention.

Nexus to the Convention

[39]     The allegations of the Claimant establish a nexus to the Convention. He faces persecution based on his membership in a particular social group, which is HIV-positive Haitian men.

[40]     His claim, therefore, has been analyzed pursuant to section 96 of the IRPA.

Credibility

[41]     The Panel will only discuss the Claimant’s credibility with respect to his allegations regarding his HIV status, as this status is sufficient to meet the requirements of the IRPA. It is therefore not necessary to analyze the other allegations for the purpose of his claim.

[42]     The Panel finds that the Claimant is credible for the following reasons:

[43]     Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness.[9] In this claim, the Panel has no such reason.

[44]     The Claimant provided detailed testimony regarding the circumstances under which he discovered himself to be HIV-positive, as well as producing documentary evidence.[10] He also testified in a straightforward fashion about the impact this status had on his relationship with his family members in Haiti, as well as the treatment that he would expect should he return to Haiti, including violence, due to widespread cultural prejudices against those with HIV.

[45]     The national documentation corroborates the testimony of the Claimant. One source indicates that there are “well-documented cases of people living with HIV/AIDS who experience stigma and discrimination and who are denied services because of their HIV status in the workplace, in education and health care, and even in communities where there are people living with HIV”.[11] Furthermore, the objective documentary evidence indicates that the rights of those with HIV are violated in other areas as well, including with respect to non-discrimination, housing, care, social security, assistance and well-being.[12]

[46]     The country conditions are such that there is no legal protection in Haiti against discrimination based on HIV-positive status.[13]

[47]     Prejudice against people living with HIV is prevalent in Haiti, as indicated by a 2012 survey that indicates 57.7 percent of adults would not buy vegetables from a shopkeeper or vendor if they knew that the person had HIV.[14] 61 percent of women and 55 percent of men reported discriminatory attitudes towards people living with HIV.[15]

[48]     The attitudes and treatment of people in Haiti living with HIV are connected to the overall prejudice in that country against those perceived to be homosexual, which is why those who seek treatment for HIV also face the danger of violence based on that perception of their sexual orientation: “even the mere suspicion of homosexuality may trigger violence”.[16]

[49]     Furthermore, beyond the absence of a law that prohibits discrimination against those with HIV, there is a lack of police protection for those perceived to be engaging in same-sex acts: “Haitian authorities do not generally respond when faced with violent acts against individuals who are sexual minorities.”[17]

[50]     The objective documentary evidence indicates at length that anyone perceived as homosexual faces violence not only by other civilians but by police as well.[18] The country conditions are replete with examples of people who seek police protection in Haiti for acts directed at them because of their perceived sexual orientation and are often ridiculed by police, who may either refuse to file a report or may even further victimize and humiliate them, including with physical assaults.[19]

[51]     The country evidence therefore demonstrates that the Claimant faces a serious possibility of persecution in Haiti, based on his membership in a particular social group, specifically HIV­ positive Haitian men.

[52]     For all of these reasons, the Panel finds that the Claimant’s allegations are credible.

[53]     The Panel, therefore, finds that the Claimant has established, on a balance of probabilities, that he faces the serious possibility of persecution if he returns to Haiti, based on his membership in a particular social group, that of HIV-positive Haitian men. The Panel finds that the Claimant has established, on a balance of probabilities, that he is HIV-positive, which he discovered when he went to a hospital in the U.S. after falling ill in 2014.

[54]     The Panel concludes that the Claimant faces a forward-looking serious possibility of persecution based on the aforementioned findings.

State Protection

[55]     Considering the evidence previously stated that discrimination against people with HIV is not legally prohibited in Haiti, in addition to the objective documentary evidence as discussed regarding the tendency of the police to tum a blind eye to violence against those perceived to be a sexual minority in Haiti, or even sometimes themselves be the perpetrators of violence against those perceived to be a sexual minority in Haiti, the Panel finds that state protection would not be available to the Claimant, if he were to approach the state for protection.

[56]     The Panel concludes that the Claimant has provided clear and convincing evidence that has rebutted the presumption of adequate state protection.

Internal flight alternative

[57]     The Panel finds that the Claimant faces a serious possibility of persecution throughout Haiti.

[58]     The country evidence before the Panel is that violent and hostile attitudes towards HIV­ positive individuals are prevalent throughout the country. The Panel finds that there is nowhere in Haiti the Claimant could relocate that would be safe and reasonable, due to his HIV status.

[59]     There is, therefore, no viable internal flight alternative for the Claimant anywhere in Haiti.

CONCLUSION

[60]     For all of these reasons, the Panel finds that the Claimant has established a subjective fear of return to Haiti that is objectively well-founded.

[61]     The Panel concludes that the Claimant has established that he faces a serious possibility of persecution in Haiti in accordance with section 96 of the IRPA.

[62]     The Panel, therefore, finds that he is a “Convention refugee” pursuant to section 96 of the IRPA and accepts his claim.


[1] Document 2 — Basis of Claim Form (BOC).

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

[3] Document 6 — Minister’s Notice of Intervention and Exhibits M-1 to M-6.

[4] Document 5 — National Documentation Package, United States, 31 January 2020 (NDP USA), tab 3.2: The Immigrant Visa Process, United States, Department of State;

Document 5 — NDP USA, tab 3.4: Report on Citizenship Law: United States of America, European University Institute, European University Democracy Observatory on Citizenship, Peter J. Spiro, July 2015.

[5] Document 6 — Exhibits M-3, M-4 and M-5.

[6] Document 7 — Exhibit D-2.

[7] Ibid.

[8] Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118.

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

[10] Document 8 — Exhibit D-4.

[11] Document 3 — National Documentation Package, Haiti, 30 September 2019 (NDP Haiti), tab 1.12: Response to Information Request, HTI106236.FE, Immigration and Refugee Board of Canada, 4 March 2019.

[12] Supra, note 11.

[13] Document 3 — NDP Haiti, tab 2.1: Haiti. Country Reports on Human Rights Practices for 2018, United States, Department of State, 13 March 2019;
Document 3 — NDP Haiti, tab 2.3: Report of the Independent Expert on the situation of human rights in Haiti, United Nations, Human Rights Council, 8 March 2017.

[14] Supra, note 11.

[15] Ibid.

[16] Document 3 — NDP Haiti, tab 14.1: Response to Information Request, HTI106204.FE, Immigration and Refugee Board of Canada, 29 November 2018.

[17] Ibid.

[18] Document 3 — NDP Haiti, tab 6.1: Response to Information Request, HTl104591.FE, Immigration and Refugee Board of Canada, 27 September 2013;
Document 3 — NDP Haiti, tab 6.2: Fighting for our Lives: Violence and Discrimination against Women and LGBT Persons in Haiti, ANAPFEH et al, October 2014;

Document 3 — NDP Haiti, tab 6.3: Supplementary information on Haiti regarding the treatment of lesbian, bisexual and transgender (LBT) persons and violence against women’s human rights defenders, FACSDIS et al, 12 June 2015;

Document 3 — NDP Haiti, tab 6.4: Haiti : La situation des minorités sexuelles et de genre, France, Office

français de protection des réfugiés et apatrides, 10 May 2016.

[19] Ibid.

Categories
All Countries Colombia

2019 RLLR 58

Citation: 2019 RLLR 58
Tribunal: Refugee Protection Division
Date of Decision: May 1, 2019
Panel: J. Pollock
Counsel for the claimant(s): A. Mejia-Arias
Country: Colombia
RPD Number: TB8-07483
ATIP Number: A-2020-01274
ATIP Pages: 000129-000138


REASONS FOR DECISION

[1]       MEMBER: We are back on record. All the same parties are present, except Madam Interpreter has been excused while we were off record.

[2]       While we were off record, while Madam Interpreter was still present, I advised the claimant and counsel that I would be granting the claim here today. Madam Interpreter indicated that she has a headache and is unable to remain in the hearing room. So with — well, I discussed this issue with counsel.

[3]       And Counsel, my understanding is you have no objection to me providing my reasons and waiving off interpretation.

[4]       COUNSEL:  I have no objection.

[5]       MEMBER: Thank you so much.

[6]       All right. While we were off record, I also provided the original documents back to Counsel.

[7]       I have considered your testimony and the other evidence that you presented here today, and I am ready to render my decision.

[8]       This is a decision for Ms. [XXX].

[9]       The claimant claims to be a citizen of Columbia and is making her claim protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[10]     In considering your claim here today and in rendering my decision, I have considered and applied the Chairperson’s Guideline 4 on women refugee claimants fearing persecution.

[11]     I find that you are a convention refugee as you have established a serious possibility of persecution upon return to Colombia based upon your particular social group as a religious community worker who was imputed to be opposed to the ELN.

[12]     Your allegations are set out in detail in your basis of claim form which we have at Exhibit 2.

[13]     You allege that you worked in the evangelical sense by providing community religious work to various underserved communities in Columbia.

[14]     You indicated that you provided literacy lessons to adults and children and that you taught people about the bible.

[15]     You allege that the person who you referred to as your spiritual father, Pastor [XXX] (ph), was murdered in [XXX] 2015 by the ELN. You allege that you, along with his now widow, witnessed this murder, and that ever since this time you received multiple threats from the ELN.

[16]     So specifically, you indicate that you were personally approached while you were in [XXX] (ph) in Sincelejo.

[17]     You were approached by members of the ELN, who identified themselves as members of the ELN who demanded that you cease your religious work, and that you were interfering in the community. They ordered you to leave. They explained that they would kill you if you didn’t do as they told you.

[18]     You further allege you experienced two more threatening phone calls, one in [XXX] 2016, the next in [XXX] 2016. You allege that during these calls they again threatened your life and demanded that you cease your evangelical work. They also demanded that you leave the city.

[19]     As a result, you fled the city where you were living in Manaure and you resided with family. You then fled Columbia for Canada where you remained on a visa.

[20]     You allege that even after you fled Columbia, your family members continued to receive telephone threats regarding you specifically.

[21]     Just for clarity purposes, the full name of the ELN is National Liberation Army, hereinafter referred to as the ELN.

[22]     I find your personal identity as a national of Columbia is established on a balance of probabilities by your Columbian passport, which I have at Exhibit 1.

[23]     Regarding the issue of nexus, I do find that the ELN targeted you for reasons beyond the expansion of their criminal enterprise. I am satisfied that on the particular facts of your case, the ELN targeted you because of your community religious work.

[24]     I would note that even if the ELN has expanded into drug trafficking and other criminal enterprises throughout Colombia, it remains at its core a guerilla group with violent political aspirations and a left-wing political ideology that is known to target community workers.

[25]     In my view, from the perspective of the agent of persecution, your particular religious community activities were in opposition to the objectives of the ELN and, as a result, they imputed to you an anti-ELN political opinion.

[26]     And I am satisfied that your religious work in the community is central to your human rights and, therefore, that you do comprise a particular social group as a community religious worker.

[27]     Regarding your credibility, I find you to be generally credible. I did have some credibility concerns. However, I found you to be extremely credible when it came to your commitment to your religious work in Columbia and your continuing religious work here in Canada.

[28]     I do believe that you acted as a religious worker, that you engaged underserved communities in lessons about literacy, as well as lessons about the bible.

[29]     You provided very detailed testimony in this respect which I found compelling. You spoke about the importance of your faith to you personally.

[30]     You spoke in detail about what led you to become involved in this work back in 1997 and I found that to be credible as well.

[31]     You spoke about why you were motivated to engage in this work after you first met your spiritual father, who then later on was murdered. I would note that this testimony was very difficult for you as it required you to remember this very important person in your life. And as a result, an additional break was offered to you today. I did find that to be very credible.

[32]     I also found to be credible your allegation that you witnessed your spiritual father’s murder. Your testimony about this was consistent and it was detailed and very spontaneous.

[33]     I would note that there was a minor inconsistency in your testimony.

[34]     So when I had asked you about what was told to you during the first telephone threat you received from the ELN, you didn’t mention that they indicated they knew where you were living. However, you did mention the vast majority of every other single thing that you allege that they told you on that day.

[35]     And so I have weighed this omission against the consistent nature of your testimony for that threat in particular, and I find that it is minor in nature. You indicated that you may have forgotten this detail and I am affording you the benefit of the doubt with respect to this inconsistency. I haven’t drawn an adverse inference.

[36]     I do find that you were threatened in person, as alleged, and over the phone as alleged in your narrative.

[37]     However, I did and I am drawing an adverse inference based on your submission of a national attorney general report. Specifically, this report appears at Exhibit 6. So it begins at page 25 and it ends at page 28.

[38]     You tendered this report in evidence and you also provided a purported original document to a company, the copy that you put in evidence. However, upon my review of this original document, I noted there were no signatures apparent.

[39]     However, on the copy in the disclosure package, at page 26, your signature appears above the phrase “reporting party”. I wasn’t sure why this was and so I asked for your comment on this.

[40]     You indicated that you signed this document in Canada. When it was asked why you had done this, you indicated you believed you were supposed to do this. However, I find that this alteration of a document undermines its veracity before me here today and I am drawing an adverse inference as to your credibility.

[41]     In addition to the fact that the original document doesn’t match the document in evidence, I would note that there is no indication that this report was even filed with the authorities. There is no stamp. There is no signature by the receiving party. You indicated they didn’t sign it. However, I am not satisfied on a balance of probabilities that this report was filed

[42]     I also did have some concerns about the appearance of the report. However, I won’t draw an adverse inference on that basis, given that the comparison report may indeed be a different report and that specifically, the report example specimen that I am referring to is at Exhibit 3, Item 9.5.

[43]     So we do have an example of a report to the national attorney general appears to be generally and we know that there is no variation in the format of reports because they are established by the attorney general in Columbia. However, given that the title of the report is different from the title of the specimen, I won’t draw an adverse inference.

[44]     But I do draw an adverse inference based on the fact that you signed this document and I have no credible evidence before me to indicate that it was ever filed.  So I have drawn an adverse inference on this basis.

[45]     However, it’s my job to weigh the evidence before me. Even considering the minor inconsistency about the telephone threat, and the fact that I don’t find this report that you have given me to be credible, I do find that the balance of your evidence is credible and I believe what goes to the core of your claim, which is that you were a community religious worker and that you were threatened by the ELN.

[46]     In addition to these credibility concerns, I also asked you about why you delayed two years in making your claim. So you entered Canada in XXXX or, sorry, in XXXX of 2016 and you made your claim in XXXX of 2018.

[47]     When I asked you for an explanation, you indicated that you — well, first of all, you indicated that your visa did not expire. But then I confronted you with your stamp which indicates it expired in XXXX of 2016. At that point you indicated that in fact you did try and renew your temporary status. But there is no evidence before me that you did engage in an attempt to renew your status

[48]     I have examined the GCMS notes at Exhibit 1 and I note that there is no reference to an extension being filed. The only dates that are after 2015, that I can see in these notes, refer to your claim in 2018 and refer to the file being archived in 2017.

[49]     And so I don’t find that you have established, on a balance of probabilities that you made an attempt to extend your status here in Canada

[50]     I note that by remaining in Canada without authorization for one and a half years following the expiration of your six months upon entering Canada, you were at risk of removal to Columbia. And I find it unreasonable for you not to have made your claim sooner.

[51]     I have considered your explanation, which is that you remained hopeful that the peace process in Columbia — and I do appreciate that and I have weighed that explanation. However, this is a significant delay.

[52]     While I may be in a position to accept that as a reasonable explanation for a shorter delay, I simply don’t find it reasonable for two years, especially when I am finding that you were without status for one and a half of those years and at risk of removal.

[53]     So while I do draw an adverse inference against your credibility based on the significant delay, I don’t find that this failure puts your general credibility in doubt. Indeed, I am mindful that it’s not advisable to deny a claim solely based on an adverse inference as to a claimant’s subjective fear.

[54]     I find even when combining this to your delay with my adverse inference as to your submission of the report that I don’t find credible, I still find that the credible evidence in your claim outweighs these adverse inferences.

[55]     And so I do find you credible on a balance of probabilities and I do find that you face the harm that you have alleged in support of your claim.

[56]     So in addition to your generally credible testimony, you did provide a number of documents which I did find to be credible before me here today.

[57]     So you provided me with a letter from your employer in Columbia. I didn’t see the original of that document. However, I saw a copy.

[58]     You provided me with the original church letter and I found that to be very credible. Your testimony about the name of the church, who your pastor was; all of that was consistent and I placed weight on that letter. I do find that you attended the church you have alleged and that you engaged in the community work that is included in that letter.

[59]     I have also considered the affidavit from your mum. I know that this corroborates your allegations and is also accompanied by information about (inaudible) and also a photograph of her upon making the affidavit.

[60]     I have also considered to be quite credible the affidavit from the friend who you had from the church, Ms. [XXX] (ph) and so that appears at page 19 of Exhibit 6, also an affidavit accompanied by a photo of her commenting on that declaration

[61]     I found that to be consistent with your allegations and that it corroborates the specific allegation where you were personally approached by the ELN.

[62]     I have also considered the affidavit from your sister. And while I note that this doesn’t  refer to her seeking police protection or protection from the authorities as you have alleged, I am mindful that evidence should be taken for what it does say and not for what it does not say and, I further note, that it does corroborate your allegation that she received threatening telephone calls. So I have waived this in your favour as well.

[63]     Perhaps one of the most compelling pieces of evidence that you provided, however, is the affidavit from the widow of your spiritual father. I found this to be very credible and I placed significant weight on this document.

[64]     I found that its description of the murder of your spiritual father to be very consistent with what you have alleged and I also found it to be written in a very compelling manner as well.

[65]     So specifically, she mentions that, “This was the most horrible moment of my life. I’m sure it was the most terrible experience also for XXXX and my daughter.”

[66]     I just found this to be a very credible and compelling document and I accorded it significant weight.

[67]     Okay. So in addition to this personal evidence, I also have considered the objective evidence before me.

[68]     I would note that while the Columbian government has signed a final peace accord with the Revolutionary Armed Forces of Columbia, also known as the PARC, and they have completed PARC demobilization in XXXX 2017, in contrast, the peace process with the ELN has stalled in Columbia.

[69]     The ceasefire with the ELN ended in XXXX 2018 after the armed group resume attacks and the government suspended the peace negotiations.

[70]     So since the end of the ceasefire with the ELN the armed conflict has intensified in many regions in Columbia and, indeed, many FARC dissidents have been joining the ELN, expanding its territory and its operations.

[71]     The ELN is described as Columbia’s biggest guerrilla group with somewhere between 1,500 and 2,500 combatants, which operate in war fronts or urban militias. The ELN continues to regularly carry out kidnappings, extortion, assassinations, bombings and other terrorist activities.

[72]     Indeed, I am also mindful of counsel’s disclosure of recent documentary evidence which indicates that the ELN took responsibility for targeted attacks in January 2019; an attack against a police academy killing 21 people.

[73]     So these more recent reports can be found at Exhibit 6 at page 29.

[74]     Okay. I further acknowledge that the country condition evidence is clear regarding the consequences of being declared a military objective. So you indicate that during the last telephone call they declared you a military objective.

[75]     The national documentation package indicates that when a person is declared a military objective it means that they have been issued a threat to be killed and that their life, physical integrity and freedom are endangered, and also indicates that these objectives are commonly made by guerilla groups such as the ELN.

[76]     The NDP also corroborates that the persecution of social leaders and community workers in Columbia is increasing. Indeed, scores of activists have been murdered and there is widespread impunity for their killers in Columbia. The problem is getting worse, not getting better, according to the objective evidence.

[77]     Moreover, there is specific reference in the documents to the targeting of religious workers.

[78]     So counsel has provided a very recent report which indicates the murder of a religious worker. That appears at page —

[79]     COUNSEL: Thirty-five (35).

[80]     MEMBER: — oh, 35. Thank you so much, Counsel. At page 35.

[81]     And we also know from the objective evidence that there is intimidation, violence and killing and targeting of religious leaders and members of religious communities, that Columbia is one of the most dangerous countries in the world in which to be a community leader, including a religious community worker, that non-governmental organizations in Columbia continue to report that in many areas of the country, illegal armed groups threatened leaders and members of religious organizations.

[82]     So I do find based on all this evidence that your claim is objectively well founded and that you face more than a mere possibility of persecution upon return to Columbia.

[83]     Regarding state protection, I find on a balance of probabilities and, in light of your particular circumstances, that there is clear and convincing evidence that the Columbian state would be unable to provide you with adequate protection.

[84]     You allege that you made no less than three attempts to obtain protection in Columbia by contacting the police unsuccessfully and also the attorney general in Columbia in three specific occasions.

[85]     I find that the objective evidence, in your particular circumstances, supports the inadequacy of state protection in Columbia.

[86]     I would note that the Columbian government has undertaken significant efforts to combat the ELN, including through the bombing of ELN camps and the capture of ELN members. However, the documents also indicate that when victims of armed groups complain to Columbian authorities, the state is often unable to provide them with protection. This is especially so for cases like yourself in which you are not high profile.

[87]     I would note that the National Protection Unit, or UNP in Columbia, focuses on persons given their position or activities who may be subjected to extraordinary or extreme risk, such as well­ known human rights defenders. I don’t find on a balance of probabilities that you are of a particularly high profile or that you are a well-known human rights worker. You are a community religious worker.

[88]     I would note that while this program is in place, there is evidence in the documents to show that four social leaders, who were provided with UNP protection, were killed while under protection of that unit in 2017, despite all four of them having been assigned bodyguards.

[89]     The NDP goes on to note that budgetary cuts affecting the unit have negatively impacted protection schemes and that perpetrators of abuses against rights defenders and community workers are rarely held accountable.

[90]     And so while I note that the state isn’t expected to provide or afford perfect protection at all times, authorities must be able and willing to implement law and procedure.

[91]     So based on my review of the objective evidence and, in your particular circumstances, I find on a balance of probabilities that the evidence is clear and convincing and rebuts the presumption of state protection in your own specific particular circumstances.

[92]     I have also considered whether you have a viable internal flight alternative in Columbia. I proposed the city of Sincelejo and the department of Sucre (ph). I would note that the maps that we have in evidence at Items 1.2 as well as Item 7.23 indicate that the ELN is not present or active in Sincelejo or anywhere in the department of Sucre and that’s why I proposed this specific location.

[93]     I asked you a number of questions about whether you could safely relocate there. You indicated that you fear that the ELN are active throughout Columbia that they operate without people knowing that they are there and that you fear for your life and your safety throughout the country.

[94]     In determining whether the ELN has the means and motivation to locate you in Sincelejo, I have considered their area of operation as well as their interest in you in particular. I would note that the most recent response to information request from April 2018 — that’s Item 7.23 — indicates that information about the ELN’s ability to track people is scarce.

[95]     However, the same document quotes the Amnesty International Americas director’s observation that, “It is possible that the ELN can monitor a target across Columbia.”

[96]     In addition, I note that you were declared a military target and the NDP is clear that for those who are declared a military objective, relocation within Columbia is not an option. This appears at Item 7.21.

[97]     I do note that the ELN has undertaken sustained efforts to find you and that they have located you in a number of different locations in Columbia.   So they have called you and your family members.

[98]     They have called you while you were in Manaure. They have in Antioquia, the department of Antioquia. They have also located you in Nort Des Centendre. You were also targeted in Centendre when your spiritual father was murdered.

[99]     And so I have weighed all of this in the evidence in determining whether you have a viable IFA as well.

[100]   However, perhaps most importantly, I am mindful that you remain committed to your religious social work in Columbia and based on my assessment of your credibility.

[101]   I have also considered whether you would be able to freely participate in these religious activities in Sincelejo without facing a serious possibility of persecution. I find that you could not.

[102]   In making this determination, I have considered the level of violence and harm directed at religious community workers from armed groups in operation throughout Columbia.

[103]   So based on the evidence before me and based on your particular circumstances, I find that you would face a serious possibility of persecution throughout Columbia and that there is no viable internal flight alternative for you in Columbia, including in Sincelejo.

[104]   So I am accepting your refugee claim and I find you to be a convention refugee, pursuant to sections 96 of the Immigration and Refugee Protection Act.

[105]   Thank you so much. Thank you.

[106]   Thank you, Counsel.

[107]   COUNSEL: Thank you.

[108]   MEMBER: Thank you.

– – – DECISION CONCLUDED – – –

Categories
All Countries Lebanon

2019 RLLR 52

Citation: 2019 RLLR 52
Tribunal: Refugee Protection Division
Date of Decision: May 8, 2019
Panel: D. Morris, L. Hartslief, J. Kushner
Counsel for the claimant(s): Jasmina Mrkalj-Skelly
Country: Lebanon
RPD Number: TB7-24110
ATIP Number: A-2020-01274
ATIP Pages: 000080-000088


REASONS FOR DECISION

INTRODUCTION

[1]       The claimant, a 74-year-old stateless Palestinian, is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

DETERMINATION

[2]       The panel determines that the claimant is a Convention refugee because she faces a serious possibility of persecution in her country of former habitual residence, Lebanon, due to her membership in a particular social group, namely as the family member of a political opponent of Hezbollah.

ALLEGATIONS

[3]       The allegations respecting the basis of the claimant’s fear in Lebanon are set out in her Basis of Claim (BOC) form.2

[4]       The claimant and several members of her family have been targeted for violence and extortion by armed groups in Lebanon. Most recently, the claimant herself was targeted after her son was kidnapped by Hezbollah after coming into conflict with his wife’s brother, who is a member of Hezbollah. After the claimant attempted to relocate to another part of Lebanon, she was located, threatened and assaulted by members of Hezbollah, who view her and her family as being in opposition to them. Hezbollah view the family as opponents because male members of the family, including her son [XXX], have consistently refused to associate themselves with or otherwise support the group.

[5]       The claimant fears that she will be harmed or killed by Hezbollah if she returns to Lebanon.

ANALYSIS

Identity and Statelessness

[6]       The claimant was born in Palestine in 1945, fled Palestine during the war in 1948 and lived in [XXX] in Lebanon until she fled to Canada in 2017. Though born in Palestine and living for many years in Lebanon, the claimant has no citizenship in any country.

[7]       On a balance of probabilities, the panel finds that the claimant has established that she is a stateless Palestinian whose country of former habitual residence is Lebanon. This is based on her testimony, the testimony of her son [XXX], who appeared as a witness, as well as the claimant’s Lebanon ID Card, Lebanon Travel Document for Palestinian Refugees, Lebanon General Security Travel Document, and her various Canadian Temporary Residence Visas.3

[8]       Based on this evidence, the panel finds on a balance of probabilities that the claimant is not a citizen of any country. Her significant period of de facto residence in Lebanon for more than 70 years leads the panel to the conclusion that her only country of former habitual residence is Lebanon. The panel finds that she does not have a right to return to or obtain citizenship in any other country. The country of reference for this claim is therefore determined to be Lebanon.

Credibility

[9]       The panel had some credibility concerns with respect to certain aspects of the claimant’s testimony. However, in assessing this case the panel was cognizant of the claimant’s advanced age and her limited formal education.4

[10]     The panel’s concerns arose mainly from the claimant’s difficulty in recounting details of incidents set out in her BOC. In testimony, she admitted that her daughter, [XXX] and her son, [XXX] had both been with her while she was completing her BOC and helped her write her narrative.

[11]     A thorough review of the BOC shows that, for the most part, the only incidents in which the claimant was directly involved occurred after her son [XXX] had fled the country. The panel is of the view that, more likely than not, the claimant was assisted to recount stories in her BOC that had occurred to other members of her family (as is clear from the narrative) but of which she had little firsthand knowledge. The panel’s concerns were largely addressed by the testimony of her son [XXX] who was able to recount in greater detail the reasons for his flight from Lebanon and how this situation affected his mother:

The claimant’s son [XXX], who is also a stateless Palestinian, fled Lebanon in 2015 and was recognised as a Convention refugee by the Refugee Protection Division in [XXX] 2017.5 [XXX] testimony and the reasons for his recognition as a Convention refugee in Canada, corroborate the claimant’s story as follows: that [XXX] had come into conflict with Hezbollah and with his ex-wife’s brother, [XXX], who was also a member of Hezbollah;

[XXX] had been kidnapped by Hezbollah outside of Beirut in July of 2015 and suffered fairly severe injuries during his captivity;

After [XXX] departed Lebanon the claimant started to receive threats from the same persons who had kidnapped and threatened him, and;

[XXX] had tried to have a committee from [XXX] intervene on his behalf with Hezbollah but that these efforts were rebuffed by [XXX].

[12]     As stated above, the panel also considered the claimant’s age and educational background in coming to its decision. The panel finds that the claimant tried to be as forthcoming as possible and to recount events to the best of her ability. As it relates to the events that she experienced following her son’s departure from Lebanon, the panel found the claimant to be credible.

[13]     The panel therefore finds that the claimant does have a credible fear of the persons who had attacked her son and that she did start to receive threats after he had finally departed Lebanon.

Re-availment and Delay in Claiming in Canada

[14]     While re-availment or delay may not necessarily be determinative of a particular claim, they might be evidence of a lack of subjective fear on behalf of the claimant.

[15]     The claimant travelled to Canada on three previous occasions prior to her arrival in [XXX] 2017, returning to Lebanon each time. There are copies of Canadian Temporary Resident Visas on record for each of these trips.6 The last of these was between [XXX] 2014 and [XXX] of 2015 with the claimant returning to Lebanon on [XXX] 2015.

[16]     With regard to her previous trips to Canada and return to Lebanon, the claimant testified that it was never her intention to claim refugee status on those trips. The panel finds this consistent with her statements that it was only after [XXX] had finally left Lebanon for good, after being assaulted and tortured by Hezbollah in [XXX] 2015, that the claimant herself came into conflict with a member of Hezbollah and she began to fear for her own safety.

[17]     With regard to her most recent trip to Canada, the claimant delayed in making her claim for approximately [XXX] weeks (she arrived in Canada on [XXX] 2017 and submitted her claim on 3 December 2017). In testimony, the claimant stated that her intention was to return to Lebanon once the situation there had settled. However, while in Canada the claimant was informed by her daughter, [XXX], that the claimant’s home in [XXX] had been taken over by Hezbollah and that Hezbollah continued to seek the claimant out. It was then that the claimant realized it would not be possible for her to return to Lebanon.

[18]     The panel finds that this explanation is reasonable under the circumstances and is consistent with the explanation provided in her BOC.

[19]     The panel therefore finds the claimant’s subjective fear is not impugned by this delay or the fact that she had returned to Lebanon after her previous trips to Canada.

Objective Basis – Country Conditions

[20]     The country conditions outlined in the National Documentation Package (NDP) include reports which speak to the systemic discrimination facing Palestinians who reside in Lebanon, as well as the general security conditions in the country, particularly within the Palestinian camps.7 It shows that Palestinian refugees in Lebanon suffer from severe discrimination and are denied basic civil and political rights, regardless of their long term residence in the country.

[21]     Lebanon is not a signatory to the 1951 Convention or the 1967 protocol and does not recognize the basic rights of people with refugee status.8

[22]     Palestinian refugees who live in Lebanon are denied citizenship rights and are subjected to racism, arbitrary arrest, kidnapping and torture.9

[23]     Human rights abuses persist within the Palestinian camps and in Lebanon in general. These include the arbitrary arrest and detention of Palestinians by autonomous Palestinian security groups.10 The documentation confirms the claimant’s allegation that Hezbollah and other factions extra-judicially arrest and abuse refugees.

Authorities failed to observe many provisions of the law, and government security forces, as well as extralegal armed groups such as Hizballah, continued the practice of extrajudicial arrest and detention, including incommunicado detention.

NGOs reported that most cases involved vulnerable groups such as refugees … 11

[24]     These armed groups operate without the supervision of any official judicial systems.12

[25]     The documentation also supports the claimant’s assertion that her family had tried to resolve their issue with Hezbollah through a committee in [XXX]. The United Nations High Commissioner for Refugees [UNHCR] has reported that:

Palestinian groups in refugee camps operated an autonomous and arbitrary system of justice outside the control of the state. For example, local popular committees in the camps attempted to resolve disputes using tribal methods of reconciliation.13

[26]     The objective evidence therefore corroborates the general elements of the claimant’s allegations, including the impunity with which Hezbollah and other armed groups operate in Lebanon.

[27]     Having considered all of this evidence, the panel finds that the claimant faces more than a mere possibility of persecution based on her membership in a particular social group, namely as the family member of a political opponent of Hezbollah.

State Protection and Internal Flight Alternative

[28]     A state is presumed to be able to provide adequate state protection. To rebut the presumption of state protection, a claimant must provide “clear and convincing evidence.”14   The claimant must establish that state protection in inadequate. If the claimant is able to show the absence of protection anywhere in the country, there will be no internal flight alternative (IFA).

[29]     The claimant’s testimony and the documentary evidence referenced above make it clear that state protection or relocation within Lebanon are not options for the claimant. Severe discrimination against Palestinians is widespread and systematic throughout all the country, particularly outside of the refugee camps.15 The US Department of State notes that, ” … Hizballah, and other extremist elements operated outside the direction or control of government officials.”16

[30]     Within the camps, UNHCR reports that:

Palestinian individuals may reportedly be at risk of being subjected to harassment, threats or abuse at the hands of militant factions in the camps. As the Lebanese authorities have no access to the camps (with the exception of Nahr El-Bared Camp), those at risk can reportedly not seek protection from the Lebanese authorities.17

[31]     This is consistent with the claimant’s statement that she did not seek protection from the authorities because Lebanese authorities are not present in the camps and do not protect the refugees there. The panel therefore concludes that the claimant would not be able to access state protection anywhere in Lebanon.

[32]     With regard to an internal flight alternative, the panel further notes that the claimant did try to relocate from [XXX] to [XXX] and that Hezbollah was able to locate her there.

[33]     The panel therefore finds, on a balance of probabilities, that neither adequate state protection nor an internal flight alternative is available to the claimant.

CONCLUSION

[34]     Having considered the totality of the evidence, based on the foregoing analysis, the panel finds the claimant’s fear of persecution in Lebanon to be well-founded. The panel finds the claimant is a Convention refugee and therefore accepts her claim.

(signed)           D. Morris

Concurred in by:         (signed)           L. Hartslief

                                    (signed)           J. Kushner

May 8, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Exhibit 2
3 Exhibit 1 (Originals are all in the possession of Canadian Immigration authorities).
4 Exhibit 1, Schedule A, question 7.
5 Exhibit 11.
6 Exhibit 1
7 Exhibit 3, National Documentation Package (NDP) for Lebanon (29 March 2019), item 2.1.
8 Ibid., item 13.5.
9 Ibid., item 13.1.
10 Ibid., item 2.1.
11 Ibid., at p. 9.
12 Ibid., item 13.1.
13 Ibid., item 13.2.
14 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) I, 20 Imm. L.R. (2d) 85, at pp. 724-726.
15 Exhibit 3, NDP for Lebanon (29 March 2019).
16 Ibid., item 2.1, at p. 1.
17 Ibid., item 13.2, at p. 19.

Categories
All Countries China

2019 RLLR 12

Citation: 2019 RLLR 12
Tribunal: Refugee Protection Division
Date of Decision: November 7, 2019
Panel: A. Lopes Morey
Counsel for the claimant(s): Shelley S Levine
Country: China
RPD Number: TB8-10761
ATIP Number: A-2020-01124
ATIP Pages: 000093-000098


[1]       This is the decision in the claim of [XXX] (“the claimant”). She claims to be a citizen of China and is claiming refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2]       The allegations are set out in the claimant’s Basis of Claim form (BOC)i and were detailed further in her oral testimony. In summary, the claimant alleges she fears persecution at the hands of Chinese authorities due to her violation of the Family Planning Policy.

DETERMINATION

[3]       The panel finds that the claimant has established that she faces a serious possibility of persecution in China on the basis of her membership in a particular social group, namely as a woman who violated the family planning policy.

ANALYSIS

Identity

[4]       The panel is prepared to accept the identity of the claimant on a balance of probabilities based on the certified true copy of her passport at Exhibit 1.

Credibility

[5]       The determinative issue in the claim was credibility. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities. The panel found the claimant entirely credible in this claim. Her testimony was detailed, spontaneous, expressive and entirely consistent with her narrative and with the documentary evidence that she provided. The panel finds the claimant was forthcoming where the panel had questions about missing documents, and that minor inconsistencies were reasonably explained. The panel therefore finds that the claimant has established her allegations on a balance of probabilities.

a. Forced insertion of IUD, Abortion, Fine, and threat of Sterilization

[6]       The panel finds that the claimant established on a balance of probabilities that she was forced to wear and IUD and then forced to undergo an abortion when it was discovered she was pregnant for a third time, as alleged.

[7]       The claimant was able to describe in detail her experience under the family planning policy as it impacted her directly. She testified that she was first forced to wear an IUD in 2008 after the birth of her first child. Given the child was a female, the claimant was allowed to apply for a permit to have a second child. The claimant testified that she made the application and had her IUD removed in 2012. After her second daughter was born in [XXX] 2015, the claimant was again forced to wear an IUD and undergo pregnancy checks three times per year. Due to medical complications, however, the claimant had her IUD removed in [XXX] 2017.

[8]       The claimant provided a document from [XXX] Hospital to corroborate the insertion of the IUD in 2015 after the birth of her second child, and the removal of the IUD for health reasons in 2017.ii On examination of the original documents, the panel found no inconsistency with its form or its content as compared to the claimant’s testimony. The panel therefore finds that the document is genuine on a balance of probabilities, and finds that the claimant has established both that she was forced to wear an IUD and that it was removed in 2017 for health reasons.

[9]       The claimant testified that after the removal of the IUD she was put on the birth control pill and required pregnancy checks four times per year. On [XXX], 2018 during one of these checks, it was discovered that the claimant was pregnant. The claimant was therefore not allowed to leave the hospital and was put under anesthesia, at which time she underwent an abortion against her will. When she woke up, the claimant was informed that she had not been sterilized because after the abortion she had bled too much and was too weak to endure another procedure. However, she had been left with two documents from Family Planning officials: the first was a notice to pay a fine, and the second a notice instructing her or her husband to report for sterilization. The claimant has provided these two documents in evidence.iii As the panel found no issues with the content or form of the documents, they are presumed genuine. The panel finds that the claimant underwent an abortion and was targeted for sterilization by authorities as alleged.

Objective Basis

[10]     Country condition documents are consistent with the claimant’s allegations that there is a serious possibility she would face persecution should she return to China. Further, the Courts have found that forced abortion constitutes persecution, which the claimant has established she has already endured.

[11]     The panel acknowledges that the country condition evidence in the National Documentation Package (NDP) about China’s family planning policy and implementation is varied within and between provinces.iv There is a lack of information on implementation specific to Jiangsu province; however, despite variances, existing documentation suggests that common tools used to implement the family planning policy are still in practice across China. Until there is a clearer picture of whether and to what extent the local and provincial levels are relaxing implementation of the family planning polices, decisions must be made on available information, which suggest that coercive measures are still in effect.

[12]     For example, item 5.5 of the NDP, from October 2019, indicates that “despite the change in demographic landscape, the two-child policy is still being ‘strongly’ enforced.”v It points to the discrepancy between the views of Chinese leadership, which recognizes the need for higher birth rates, and the interests of local government officials who derive a large amount of revenue and power from the continued strict implementation of the policy. The same document notes “despite the encouragement from Chinese leaders for couples to have more children, local government officials… have a vested interest in ‘maintaining the rules that justify their jobs and authority”, even if violence is used.vi It cites multiple sources which each indicate that, while less common, forced abortions, sterilizations, and other invasive measures such as the coerced insertion of IUDs and regular pregnancy checks continue to be used.vii This is further corroborated in the documentary evidence provided by counsel.viii

[13]     Further, the United Kingdom Home Office Country Information and Guidance Report on China entitled Contravention of National Population and Family Planning Laws states that “couples who exceed their government-mandated birth limit continue to be punished with crushing fines equal to two to ten times their annual household income.”ix

[14]     The panel therefore finds that overall the documentary evidence corroborates the claimant’s allegations that the government continues to impose harsh penalties on those who violate the family planning policy, that she herself underwent an abortion against her will upon discovery of her third pregnancy, that she was subject to a significant fine as a result of that pregnancy, and that she has been targeted for sterilization.

[15]     The claimant already has two children, as evidenced by their birth certificatesx, and, as indicated above, she has already been identified by family planning officials as a target for a fine and forced sterilization. Therefore, even if implementation of the family planning policy in Jiangsu province is relaxed in the future, the claimant is unlikely to benefit from the change on a forward-looking basis such that she would no longer face a serious possibility of persecution.

[16]     Having considered all of the evidence, both in testimony and the documentary evidence, the panel finds the claimant has established that there is a serious possibility of persecution should she return to China, in the form of sterilization and the limiting of her future reproductive choices. The panel finds that the claimant’s fear is well-founded.

State Protection

[17]     States are presumed to be capable of protecting their citizens except in situations where the state is in a state of complete breakdown. To rebut the presumption of state protection, a claimant has to provide clear and convincing evidence of a state’s inability or unwillingness to protect its citizens.

[18]     In this case, the agent of persecution is a branch of the State itself which is implementing an official State policy. The panel therefore finds on a balance of probabilities that State protection would be unavailable to the claimant in China.

Internal Flight Alternative

[19]     Given that the State is the agent of persecution, and that the claimant is known to State authorities, the panel finds that there is a serious possibility of persecution for the claimant throughout China. Therefore, there is no internal flight alternative available to her.

CONCLUSION

[20]     Based on the totality of the evidence, the claimant has established that she faces a serious possibility of persecution on a Convention ground, namely her membership in a particular social group, as a woman who has violated the family planning policy. Therefore, the panel finds that she is a Convention refugee and accepts her claim.

(signed)           A. Lopes Morey

November 7, 2019

i Exhibit 2
ii Exhibit 9, p. 4-7
iii Exhibit 9, p. 8-11
iv Exhibit 3, NDP China, version 28 June 2019, for example Item 5.7
v Exhibit 3, NDP China, version 28 June 2019, for example Item 5.5, RIR CHN106235.E
vi Exhibit 3, NDP China, version 28 June 2019, Item 5.5, RIR CHN106235.E
vii Ibid
viii Exhibit 5
ix Exhibit 3, NDP China, version 28 June 2019, Item 5.6, section 5.5.2
x Exhibit 7, p. 20-23