Tag: PSG: Other

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.

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 – – –

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.

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 certificates^x, 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

ⁱExhibit 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