Categories
All Countries Palestine

2020 RLLR 122

Citation: 2020 RLLR 122
Tribunal: Refugee Protection Division
Date of Decision: February 18, 2020
Panel: Arash Banakar
Counsel for the Claimant(s):
Country: Palestine
RPD Number: MB9-15304
Associated RPD Number(s): MB9-15315, MB9-15342, MB9-15345, MB9-15346
ATIP Number: A-2021-01106
ATIP Pages: 000025-000038

[1]       MEMBER:    This is the decision of the Refugee Protection Division in the claims of [XXX], his wife, [XXX], and their children, [XXX] and [XXX]. Principal file number MB9-15304.

[2]       The claimants are stateless Palestinians with the exception of [XXX], who is a citizen of the United States.

[3]       They all claim refugee protection m Canada pursuant to sections 96 and 97(1) of the

Immigration and Refugee Protection Act.

[4]       Prior to the start of the hearing, [XXX] was named as the designated representative for his three children, who are minors.

Determination

[5]       I have considered your testimony and the other evidence in the case and I am prepared to render my decision orally.

[6]       A written version of these reasons will be provided to you by mail at a later date.

[7]       I find that [XXX] and [XXX] have established on a balance of probabilities that they face a well-founded fear of persecution in their country of former habitual residence due to their nationality or ethnicity as stateless Palestinians.

[8]       Your claims are therefore accepted.

[9]       With respect to the claim of [XXX], it has not been established that she faces a serious possibility of persecution, or on a balance of probabilities, a risk to her life, or risk of cruel or unusual treatment or punishment, or danger of torture, in the United States.

[10]     Her claim is therefore denied.

Allegations

[11]     Your allegations are detailed in your Basis of Claim forms.

[12]     In summary, [XXX] was born in a refugee camp in South Lebanon in [XXX] to Palestinian parents.

[13]     After completing his university studies in Turkey, [XXX] went back to Lebanon to find work, but was refused several opportunities on account of his status as a Palestinian refugee.

[14]     In [XXX] 2000, he obtained a visa to travel to the U.A.E. Once there, he found a job and remained in the U.A.E. until his final departure in [XXX] of 2019.

[15]     [XXX] was born in Lebanon in [XXX] to Palestinian parents.

[16]     In 1987 she and her family fled Lebanon and travelled to the U.A.E.

[17]     [XXX] and [XXX] met in the U.A.E. and they married in 2003.

[18]     In 2014, [XXX] became friends with a work colleague by the name of [XXX] (Ph.).

[19]     In [XXX] of 2016, [XXX] travelled to Lebanon in order to renew his Lebanese travel document.

[20]     He was to go for an interview with a Lebanese official and members of the Hezbollah.

[21]     Considering that [XXX] worked in the field of [XXX] for nearly two decades in the U.A.E. and was familiar with various military bases, he was told to provide information about military sites in the U.A.E. to [XXX], who had ties with the Hezbollah.

[22]     [XXX] returned to the U.A.E. with the intention of not cooperating with the Lebanese authorities and never going back to Lebanon.

[23]     In [XXX] of 2019, [XXX] was summoned by the [XXX] Services.

[24]     He was questioned about his relationship with [XXX].

[25]     [XXX] was told that he was no longer welcome in the U.A.E. and that he and his family had to leave.

[26]     On [XXX] 2019, [XXX] along with his wife and children, travelled from the U.A.E. to the U.S.A.

[27]     On [XXX] 2019, the claimants crossed the Canada/U.S. border and applied for refugee status upon entry.

Identity

[28]     The personal and national identity of [XXX], as a citizen of the U.S., is established on a balance of probabilities by her birth certificate from the State of Hawaii, her U.S. passport, and her U.A.E. resident visa that are on file.

[29]     I find that the other claimants have established their personal and national identities as stateless Palestinians based on their UNRWA Family Registration Card, their Palestinian refugee cards, as well as the birth certificates of [XXX] and [XXX].

Countries of Former Habitual Residence

[30]     In cases where a claimant is stateless, an examination of the claimant’s countries of formal habitual residence is required.

[31]     As far as to finding what constitutes a country of former habitual residence, established jurisprudence states that:

[32]     “While claimants — a claimant needs to have established a significant period of de facto residence in a country of former habitual residence, the term implies a situation where a stateless person was admitted to a given country with a view to a continuing residence of some duration.”

[33]     With this in mind, I have considered whether Lebanon and the U.A.E. may qualify as countries of former habitual residence for the stateless claimants.

[34]     Both the adult claimants were born in Lebanon.

[35]     [XXX] spent approximately 20 years in Lebanon and has a variety of documents from the Lebanese authorities which confirms that he was admitted to Lebanon with the view of continuing residence.

[36]     From 2000 to 2019, he lived and worked in the U.A.E. And although he alleges he can no longer return there, the fact remains that he did establish de facto residence in the U.A.E. and was admitted with a view to continue residence there.

[37]     I therefore consider both the U.A.E. and Lebanon as countries of former habitual residence for [XXX].

[38]     As for [XXX], while she was born in Lebanon, she only spent four years there.

[39]     Nevertheless, the Federal Court, in the decision Al-Khateeb, stated that:

[40]     “Significant period of de facto residence can mean something other than a substantial period of time and a short period can be significant.”

[50]     I’ve considered [XXX] period of time in Lebanon to be significant, considering that she continues to have official ties to Lebanon as a resident of that country and a recognized refugee by the Lebanese Republic.

[51]     I therefore consider Lebanon to be a country of former habitual residence for [XXX].

[52]     I also considered the U.A.E. to be a country of former habitual residence for [XXX], given that she lived there for approximately three decades.

[53]     As for [XXX] and [XXX], I also find that their countries of former habitual residence are Lebanon and the U.A.E.

[54]     While they did not reside in Lebanon for an extended period of time, as their parents did, they have spent time there and they are recognized as residents of Lebanon by the Lebanese authorities, as indicated in the Lebanese refugee cards and their UNRWA Family Registration Cards.

[55]     Given the two identified countries of former habitual residence in this case, I will examine if the claimants, other than [XXX], would suffer persecution in Lebanon, and if so, whether they have the right to return to the United Arab Emirates.

Credibility

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

[57]     The adult claimants were each genuine, sincere, and candid  in their testimony. There was no attempt to embellish or exaggerate their claims.

[58]     Although [XXX]–[XXX] testified as to the harassment and discrimination he suffered in Lebanon.

[59]     He also explained the fears that he has for his wife and children should they accompany him to Lebanon.

[60]     The allegations regarding the harassment and discrimination suffered by Palestinians in Lebanon and their limited to access to employment, education, and health care is consistent with the documentary evidence in the National Documentation Package for Lebanon. I refer to the documents in section 13 of the National Documentation Package for Lebanon.

[61]     I also note that [XXX] has provided a variety of documents regarding his work experience in the U.A.E.

[62]     For these reasons, I find the claimants have established their allegations on a balance of probabilities.

Section 96 Analysis for the Stateless Claimants

[63]     The determinative issue for me in these claims is whether, as stateless Palestinian refugees in Lebanon, the claimants face a forward-looking serious possibility of persecution on the basis of their Palestinian nationality. This includes a serious possibility of cumulative discrimination amounting to persecution.

[64]     For the reasons outlined above, I find that you have established your identities as stateless Palestinians whose former habitual residence is Lebanon.

[65]     I find that based on the objective country evidence regarding the treatment of stateless Palestinians in Lebanon, you all face a serious possibility of cumulative discrimination amounting to persecution.

[67]     Item 13.1 of the National Documentation Package for Lebanon is a Response to Information Request which cites the U.S. Department of State Report in saying that:

[68]     “There is widespread and systematic discrimination against Palestinian refugees in Lebanon.”

[69]     The same document cites sources which state that:

[70]     “Palestinians in Lebanon are more at risk of arbitrary detention, torture, and kidnapping.”

[71]     And that:

[72]     “Palestinians lack basic social, economic, political, and civil rights.”

[73]     Item 13.4 of the National Documentation Package, another Response to Information Request, reports that:

[74]     “Discriminatory policies against Palestinians in Lebanon are systematic and Palestinians have been discriminated against by the Lebanese state for decades.  There are few signs that this will improve. Palestinian refugees are characterized as poor or often live in extreme poverty and are economically disadvantaged.”

[75]     Item 13.2 in the National Documentation Package for Lebanon, a more recent UNHCR report states that:

[76]     “Palestinian refugees in Lebanon reportedly continued to face acute socioeconomic

deprivation and legal barriers to their full enjoyment of a broad range of human rights.

[77]     Palestinian refugees in Lebanon are reported to have historically been marginalized and excluded from key aspects of social, political, and economic life, with no right to own immovable property, severely curtailed access to public services such as health and education, and restrictions regarding specific professions and limited job opportunities.”

[78]     Finally, Item 13.7 of the National Documentation Package for Lebanon, a Danish Immigration Service Reports cites an international organization at page 28 of the report, stating that:

[79]     “The situation of Palestinian refugees in Lebanon, with regard to the access to public education, health care, and employment was not changed in recent years and Palestinians remain excluded from access to public services in Lebanon.”

[80]     On the basis of this evidence, I find that the treatment of Palestinian refugees in Lebanon and restrictions to employment, property rights, and movement, and their denial of access to healthcare and education by the Lebanese State constitutes cumulative discrimination amounting to persecution.

[81]     Given my conclusion, I have not analyzed the allegations of [XXX] being threatened by the Lebanese authorities. However, I did note that I find these allegations to also be credible.

State Protection and Internal Flight Alternative for the Stateless Claimants in Lebanon

[82]     A number of human rights abuses persist within the Palestinian camps in in Lebanon in

general.

[83]     These include arbitrary arrest and detention of Palestinians by state security forces and by autonomous Palestinian security groups.

[84]     Lebanon is not a signatory to the 1951 UN Refugee Convention and Palestinian refugees who live in Lebanon are denied citizenship rights in that country.

[85]     Lebanon does not recognize the UN’s 1967 Protocol and does not recognize the basic rights and legal obligations to people with refugee status.

[86]     Information from the Danish Immigration Services sets out the social discrimination against Palestinians in Lebanon and notes that:

[87]     “They are less protected and often linked in the Lebanese media to insecurities, civil war, and radical groups.”

[88]     The former Minister of Lebanon has stated that:

[89]     “Palestinians in Lebanon are in complete misery and a very dire situation.”

[90]     [XXX] testimony and the documentary evidence referenced above make it clear that state protection and relocation within Lebanon are not options for the claimants.

[91]     The U.S. Department of State Report sets out that:

[92]     “Severe discrimination against Palestinians is widespread and systematic throughout all areas of Lebanon, particularly outside of refugee camps.

[93]     Legislation in Lebanon prohibits Palestinian refugees from owning property in the country.”

[94]     For all these reasons, I find on a balance of probabilism that adequate state protection is not available to the claimants and that an internal flight alternative is also not available, as they would not be able to reasonably relocate within Lebanon.

Inability to Return to the U.A.E.

[95]     The claimants maintain in their testimony that they cannot return to the U.A.E., where they had temporary residence.

[96]     [XXX] was ordered to leave the country by the Emirate Security Officials and subsequently had his employment terminated.

[97]     He maintains that neither he, nor his family, can return to the U.A.E. at this point.

[98]     In addition to [XXX] testimony, I have also considered the Response to Information Requests at Tabs 14.1 and 14.2 of the U.A.E. National Documentation Package.

[99]     Tab 14.1 indicates that after a six-month absence, a resident of the U.A.E. cannot re-enter the country without having to obtain a new visa.

[100]   Given [XXX] credible allegations, it is unlikely that [XXX], or his family, could obtain a new visa and re-enter the U.A.E.

[101]   As a result of the above, I find that the stateless claimants cannot return to the U.A.E. as a country of formal habitual residence.

Refugee Claim of [XXX], Citizen of the U.S.

[102]   Under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, a refugee claimant — a refugee claim must be established in regards to the claimant’s country of nationality.

[103]   As mentioned earlier, [XXX] is an American citizen.

[104]   Consequently, I considered the possibility of persecution and the risk of harm that she would face in the U.S.

[105]   When questioned on the risks to [XXX] stated that he had no fears for his daughter in the U.S., other than the fact that she would be separated from her parents.

[106]   Counsel for his part had no argument regarding any potential persecution or risk of harm to [XXX] in the U.S.

[107]   In order to be considered refugees, claimants must face a well-founded fear of persecution based on a Convention ground.

[108]   In my view, the claimants have not established that [XXX] would face persecution for a ground stated under the Convention.

[109]   With neither a link to the Convention, nor a fear of persecution, I conclude that she is not a refugee, as per section 96 of the Immigration and Refugee Protection Act.

[110]   Furthermore, the claimants have not made any allegations that [XXX] faces a danger of torture in the U.S., as per section 97(1)(a) of the Immigration and Refugee Protection Act, or a risk to her life, as per section 97(1)(b) of the Immigration and Refugee Protection Act.

[111]   Regarding cruel and unusual treatment, I do not find that [XXX] could find herself separated from her parents upon return to the U.S., on a balance of probabilities.

[112]   There are provisions under the Canadian Immigration and Refugee Protection Act that will more likely than not allow [XXX] to remain in Canada with her parents, given their soon to be status of Convention refugees.

[113]   The claimants have therefore not demonstrated that [XXX] would face harm as described under paragraph 97(1)(b) on a balance of probabilities.

Conclusion

[114]   Having considered all the evidence, including your testimony, I find that [XXX] and [XXX] are Convention refugees pursuant to section 96 of the Act and I therefore accept your claims.

[115]   I find that [XXX] has not established that she faces a serious possibility of persecution or, on a balance of probabilities, a risk to her life, or a risk of cruel and unusual treatment or punishment, or danger of torture in the United States. Her claim is therefore denied.

[116]   I want to thank you for your testimony today and I wish you and your children all the best.

[117]   — Upon concluding

Categories
All Countries Saudi Arabia

2020 RLLR 101

Citation: 2020 RLLR 101
Tribunal: Refugee Protection Division
Date of Decision: November 25, 2020
Panel: C. Ruthven
Counsel for the Claimant(s): Michael F. Loebach
Country: Saudi Arabia
RPD Number: TB8-23393
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000120-000125

DECISION

[1]       MEMBER: [XXX], also known as [XXX] (phonetics), I have considered your testimony, Sir, as well as the written evidence that was presented in support of your claim and I am ready to render my decision of your claim orally.  You are claiming protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.  The details of your claim are documented in your Basis of Claim Form and its narrative which is found in Exhibit 2 as well as the narrative amendments which are found in Exhibit 7.  I find that these amendments are minor and that they add clarifying statements and that they correct spelling differences.  I have granted a bit more leeway in spelling differences as the translation of certain letters of the Arabic alphabet may allow numerous English language variations.

[2]       In summary, you fear returning to Saudi Arabia based on your Palestinian nationality. You described in your Basis of Claim Form narrative in Exhibit 2 and Exhibit 7 problems that you faced in numerous facets of your life including schooling, healthcare, and your neighborhood community.  You expanded on this written evidence in your testimony this afternoon partially based on these problems your family relocated to Bahrain to ensure that you and your older brother [XXX] (phonetics) would have a better and cheaper access to post-secondary education.

[3]       Your responses in your Basis of Claim Form indicate that your older brother [XXX] (phonetics) made a claim for protection in Canada in early [XXX] 2018, the following month [XXX] 2018 your father informed you that he could no longer provide for tuition and other university expenses in Bahrain due to a deteriorating financial situation on his part.  Your testimony elaborated on these circumstances this afternoon.

[4]       I find that you are a convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act based on the persecution that you face in Saudi Arabia related to your stateless nationality.  You testified that you are not a citizen of any country and you alleged that you are a stateless Palestinian who is born in Saudi Arabia.  Your responses to Schedule A in Exhibit 1 indicate that your parents were each born in Saudi Arabia as well and your responses within question 5 of your Basis of Claim Form in Exhibit 2 indicate that both your parents and all of your siblings and your half-sister are also stateless Palestinians.

[5]       I find that the presented Kingdom of Saudi Arabia birth certificate corroborates that you were born in Jeddah, Saudi Arabia on [XXX], it is found in Exhibit 8, in your Basis of Claim Form responses in Exhibit 2 you enumerated that each of your family members are residents of either Saudi Arabia or Canada in the case of your older brother [XXX] (phonetics).

[6]       In support of your stateless nationality claim, you presented your valid Palestinian Authority Passport and your valid Arab Republic of Egypt travel document for Palestinian refugees.  The Palestinian Authority Passport is found in Exhibit 1 with a translated copy in Exhibit 8, the Egypt travel document is found in Exhibit 8. I find no reason to doubt the authenticity of either of these documents. Item 1.10 of the Occupied Palestinian Territory National Documentation Package found in Exhibit 3 indicates that the Occupied Palestinian Territory Gaza and the West Bank do not presently meet the criteria for statehood under international law.

[7]       Based on the country condition evidence as well as the personal identity documentation that you educed, Sir, in addition to the credible testimony that you provided this afternoon, I find that you have established that you are a stateless Palestinian on a balance of probabilities.  Based on the stateless determination, I carefully considered any possible countries of former habitual residence for you Sir.

[8]       These are known as the (inaudible spot-01:46:11) factors in our jurisprudence.  The concept of former habitual residence seeks to establish a relationship to a state which is broadly comparable to two dots between a citizen and a country of nationality, that is the term implies a situation where the stateless person was admitted to a country with a view to a continuing residence of some duration without necessitating a minimum period of residence.  The claimant must have established a significant period of De Facto residence in the country in question.  The claimant does not have to be able to legally return to a country of habitual residence.

[9]       Further holding travel documents is not a determinative factor if the person has never resided in a potential country of former habitual residence, that is a determinative factor and that country cannot be a country of former habitual residence despite there being a right to return and reside in that country.  Based on your presented travel documents, I looked at both Egypt and the occupied Palestinian territory, you testified that you have never been to Gaza or the West Bank in the occupied Palestinian territory.  There is also a dearth of evidence before me regarding you ever been a resident of Egypt despite being in possession of a valid Arab Republic of Egypt travel document for Palestinian refugees.  Based on these considerations, I find that the occupied Palestinian territory including Gaza and the West Bank is not a country of former habitual residence for you.  In addition, I find that Egypt is not a country of former habitual residence for you Sir.

[10]     In regards to the United States, your Palestinian authority passport included a temporary resident visa to the United States of America, you were issued a B1-82 temporary residence visa indicative of being granted entry to that country for a short period of time, typically six months or less.  The entry stamp in your passport in Exhibit 1 and Exhibit 8 indicated that the authorities in that country granted you the standard six months of temporary residence upon your [XXX] 2018 entry.  Despite this permission to stay for six months, I note that you travelled from New York City, New York State to Detroit, Michigan the following day according to your responses to question 9 of Schedule 12 found in Exhibit 1.  The claim for protection in Canada was made on [XXX] 2018 according to the Canada Border Services Agency officer notes found in Exhibit 1.  Based on these considerations, I find that you had no view to a continuing residence in the United States of America and that you did not have a significant period of De Facto residence in that country, and therefore finally United States is not a country of former habitual residence for you, Sir.

[11]     You spent more than 5 years in Bahrain including time as an adult.  You completed your secondary studies in that country and began three years of your university studies according to your responses to Schedule A in Exhibit 1 and your academic record in Exhibit 8.  Based on these considerations, I find that you had a view to a continuing residence in Bahrain during your secondary and post-secondary studies and then you had a significant period of De Facto residence in Bahrain prior to your most recent departure in [XXX] 2018.  I therefore determine that Bahrain is a country of former habitual residence for you, Sir.  You testified that you do not believe you can return to Bahrain as your status there is dependent on your studies.  I find the visas in your passport support this testimony.  I also find your testimony regarding your father’s financial problems to be credible based on the family’s decision to return to Saudi Arabia and you were forced to withdraw from your university studies.

[12]     The National Documentation Package for Bahrain is found in Exhibit 5 and also supports the lack of availability to obtain permanent status, for example, Item 2.1 indicates that even if you married a Bahrain citizen you would not have a path to citizenship in Bahrain as a noncitizen of that country.  I have no evidence to establish that you retained permission to enter and remain in Bahrain for continued residence after your post-secondary studies ended in 2018.  You were born in Saudi Arabia and you lived in that country for [XXX] years up until the end of grade [XXX].

[13]     Based on this I find that you had a view to a continuing residence in Saudi Arabia and that you had a significant period of De Facto residence in Saudi Arabia prior to your most recent departure on [XXX] 2018. I therefore determine that Saudi Arabia is a country of former habitual residence for you, Sir.  In order to be found a convention refugee, a stateless person must show that on a balance of probabilities he or she would suffer persecution in any country of former habitual residence and if he or she cannot return to any of his or her countries of former habitual residence. These are known in jurisprudence as the (inaudible spot-01:50:58) requirements.  There were a few times when I had to repeat questions, I find that you testified at the hearing in a straightforward and consistent manner without the use of embellishments, contraindications or omissions from the details that you presented when you made your claim for protection in Canada. Your narrative is very detailed in its descriptions of the problems that you faced growing up and living in Saudi Arabia as a young adult.  You self-identified being a stateless Palestinian as per your responses in your Basis of Claim Form in Exhibit 2.  You testified that your father is supporting all of your younger siblings and your half-sister and then your mother has been living with her family in Dammam for about two years.

[14]     Based on your testimony about the death threats made against you starting in [XXX] 2018 as well as the numerous examples you provided in your narrative and your narrative amendments about challenges you faced in schooling, healthcare, and neighborhood participation in Saudi Arabia, I find that you have a subjective fear of returning to Saudi Arabia.  The overall objective evidence supports your claim for convention refuge protection based on your stateless nationality in Saudi Arabia. There are various documents in the Saudi Arabi National Documentation Package found in Exhibit 4 that confirm that there is no codified asylum system for those fleeing persecution in Saudi Arabia and the country is not party to the 1951 refugee convention or its protocol. Item 1.3 indicates that Saudi Arabia has 70,000 stateless residence including Palestinians; however, the estimated number of Palestinians in Saudi Arabia is 287,000 according to Item 2.6 and Item 3.9. Being stateless in Saudi Arabia can result in significant violation of rights which is included lack of access to public education, healthcare, and other services and inability to access employment, social alienation, and psychological challenges which is also found in Item 3.9.

[15]     I find that you educed sufficient evidence to establish that your ability to reside temporarily in Saudi Arabia was entirely due to the work permits and related sponsorship from your father.  There is no evidence before me to establish that you, your parents, or any of your siblings has ever held permanent status in Saudi Arabia or to establish that you ever had access to a such status.

[16]     According to Item 3.1 and Item 3.5 in Saudi Arabia only citizens have access to education, healthcare, public housing, courts, and judicial procedures, legal services and other social services.  Noncitizens have to pay for their elementary school and high school education even though these are public schools.

[17]     According to Item 14.2, Palestinians are subject to the same regulations as foreigners in Saudi Arabia. Foreigners must have Kafala or sponsorship to obtain work permits and residence permits. The sponsor can be a Saudi citizen or accompanied and the residence is of a limited duration and renewable under certain circumstances. The Ministry of Interior is entitled to withdraw the right of residence and its permit from any foreigner and instruct him to leave the country at any time without mentioning any reasons. Access to services such as health and education depends on provisions contained in the work contract.

[18]     Item 2.1 and Item 2.4 indicate that employers or sponsors control the departure of foreign workers and residents from Saudi Arabia and foreign citizen workers under sponsorship require guardian’s consent to travel abroad. Foreign workers cannot change job unless they have a no objection letter from their existing employer and some employers confiscate worker’s passport to prevent them from leaving.

[19]     Based on these considerations, I find that the objective country condition evidence supports you would not be allowed to enter Saudi Arabia should you return to that country.  I therefore determine that you had a relationship with the state of Saudi Arabia which is not broadly comparable to a relationship between a citizen and his/her country of nationality.

[20]     In regards to your lifetime cumulative treatment including treatment of simulated situated persons in Saudi Arabia who are noncitizens, Palestinians or stateless persons, I find that the cumulative effect Saudi policies related to education, healthcare, and employment are discrimination against noncitizen that rises to the level of persecution. I therefore determine that you face a well-founded fear of persecution in Saudi Arabia.  The authorities of Saudi Arabia are your primary agents of persecution as the authorities in action subsequently enforce laws that put noncitizens and stateless residents at a significant disadvantage over the citizens of Saudi Arabia. I considered the possible avenues of redress for noncitizen resident of Saudi Arabia such as yourself.

[21]     Item 2.1 indicates that the Kingdom of Saudi Arabia is a monarchy, the State Security Presidency or SSP, the national guard, the ministries of defence and interior, all report to the king. Significant human rights issues included all unlawful killings, executions for nonviolent offenses, forced disappearances, torture of prisoners, and detainees by government agents, arbitrary arrest and detention, political prisoners and arbitrary interference with privacy.  In the judicial system, there are traditionally no published case law on criminal matters, no uniform criminal code, no presumption of innocence, and no doctrine that binds charges to follow legal precedent. In light of the country condition evidence, I find that it will be objectively unreasonable for you sir in your particular circumstances as a noncitizen to seek the protection of the authorities in Saudi Arabia.  I find it unreasonable to expect you to seek redress or protection from the police or any other authorities in Saudi Arabia.

[22]     Based on this, I find that you have rebutted the presumption of state protection with clear and convincing evidence, I find that on a balance of probabilities, adequate state protection would not be available to you should you return to Saudi Arabia.

[23]     The authorities of Saudi Arabia are in full control of their territory. You fear the policies enacted by the authorities of Saudi Arabia which in cumulative effect rises to a level of persecution. As the agents of harm include the state, I find that there would be no places or regions in Saudi Arabia which could offer you safety from the reasonable chance of persecution in your particular set of circumstances. I find that you have a well-founded fear of persecution throughout Saudi Arabia and there is no viable internal flight alternative for you. I further find that you are a stateless Palestinian with Saudi Arabia and Bahrain as your countries of former habitual residence. You do not have authorization to return to either of these countries. As such, I find that you are a convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act based on your nationality as a stateless Palestinian and based on the serious risk of persecution in Saudi Arabia, I therefore accept your claim.

[24]     I am going to return to you all of the original documents that you presented to me and that concludes our hearing this afternoon. Do you have any questions before we end?

[25]     INTERPRETER: Did you accept my claim?

[26]     MEMBER: Yes.  Any other questions?

[27]     CLAIMANT: No.

[28]     MEMBER:    Counsel anything else before we end?

[29]     COUNSEL:   No thank you very much.

[30]     MEMBER:    I would like to thank you for your testimony this afternoon. Counsel thank you for your work and Mr. Interpreter thank you for your as well. With that, we go off the record and we end it here.

———- REASONS CONCLUDED ———-

Categories
All Countries Tibet

2020 RLLR 97

Citation: 2020 RLLR 97
Tribunal: Refugee Protection Division
Date of Decision: February 27, 2020
Panel: S. Seevaratnam
Counsel for the Claimant(s): Constance Nakatsu
Country: Tibet
RPD Number: TB7-24959
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000071-000082

REASONS FOR DECISION

[1]       The claimant, [XXX], claims to be a national of Tibet, who is claiming protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

ISSUES

[2]       The relevant issues at the hearing were exclusion pursuant to Article 1E of the Convention,[2] identity, nationality, credibility, well-founded fear of persecution, state protection, and internal flight alternative.

[3]       Matters relating to the applicability of Article 1E are referred to herein as “exclusion issues.” Matters relating to whether or not the claimant has a well-founded fear of persecution within the meaning of the Convention refugee definition are referred to herein as “inclusion” issues.

EXCLUSION PURSUANT TO ARTICLE 1E

[4]       Article 1E of the Convention, which has been appended as a schedule to the IRPA, reads as follow:[3]

E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

[5]       In Shamlou, the Federal Court identified four criteria that this Division should look to in considering Article 1E: the right to return; the right to work; the right to study; and full access to social services.[4]

India

[6]       The documentary evidence regarding the residency status afforded to Tibetans born in India is as follows from the Board’s Response to Information Request (RIR):[5]

Under Indian law, anyone born between January 26, 1950 and July 1, 1987 on Indian soil or at least should be, according to the letter of the law, … and as affirmed by the High Court of Delhi, automatically an Indian citizen. This was proved to include Tibetans by a Delhi High Court decision on 22 December 2010. However, there is a large gap between this right, and a person being able to have that right recognized, and to then be able to access the related rights and privileges. Rather than there being a series of simple steps to follow in order to attain citizenship, our research findings show that in practice, Tibetans in India who were born within the correct time period in India are still unable to have their status as citizens officially recognized.

[7]       The RIR further indicates that, in practice, it is very difficult for Tibetans to be able to access Indian citizenship for two reasons:[6]

1. The Indian authorities continue to treat Tibetans as foreigners, and

2. There is an unwritten policy of the Central Tibetan Administration to not release No Objection Certificates (NOC).

[8]       The claimant’s birthdate removes him from this law since he was born outside of the eligible birthdates and there is no evidence to suggest either of his parents were citizens of India at the time of his birth. Thus, it is not within his control to acquire the citizenship of India.[7]

[9]       In addition, the claimant does not have a birth certificate, a matriculation record since he only completed six school grades, or a driver’s licence – all of which are documents which may be utilized to obtain Indian nationality. This evidence is corroborated by the documentary evidence.[8]

[10]     A media report from the Tibet Sun corroborates the non-issuance of the NOC. The article states that “[i]n violation of the exile Tibetan charter, the Kashag (Secretariat of the Central Tibetan Administration) has ordered all the Departments under it to stop issuing NOC (no objection certificate) or any letter of support to Tibetans applying for Indian passport.”[9]

[11]     Furthermore, the media report finds the following:[10]

Tibetans applying for Indian passport continue to face various forms of discrimination and harassment, and are left with no choice other than appealing in the courts for relief.

The discriminatory practices in processing the applications include imposition of arbitrary rules and ignoring government orders by the Regional Passport Offices (RPOs), and unsubstantiated adverse police verification reports by the local police officers.

[12]     Based on the claimant’s evidence and the documentary evidence, there appear to be “significant impediments”[11] to Tibetans obtaining Indian nationality. The Federal Court in paragraph 23 of its decision in Pasang stated that factors such as the level of education, employment, and residence within a Tibetan refugee settlement, must be taken into account.[12]

[13]     A Business Standard report from 2018 confirms that “people born between January 26, 1950, and July 1, 1987, need to produce any of the 19 documents, including birth certificate … matriculation certification… “[13] The article concludes that “[e]ven people in the highest echelons of society and the bureaucracy have not proved their citizenship to the right authority.”[14]

[14]     In Choezom,[15] the Federal Court judge found as follows:

I find it difficult to accept this conclusion. It is self evident that the Applicant (with respect to the fundamental right of return and the nature of the residence in India) does have the same rights as an Indian citizen. The need for annual RC’s [Registration Certificates], IC’s [Identity Certificates], visas, NORI’s [No Objection for Return to India] and the prohibition to visit certain locations within India are all antithetical to the ‘basic rights of status as nationals’. All of these rights are not permanent and their renewal is at the discretion of the Indian government. It may be changed at any time for political, geopolitical (i.e. the need for good relations with China) or security reasons. The fact that there is no evidence that the Indian government has so far refused to issue RC’s, IC’s, visas or NORI’s does not mean it has given up the right to do so. The Tibetans’ existence in India is thus at the sufferance of the Indian government. As right to stay at sufferance does not amount to ‘the same basic rights of status as nationals’ of India enjoy. In my view the Board erred in concluding that the Applicant falls within the exclusion set out in Article 1(E) of the Refugee Convention.

[15]     Having carefully considered the rights afforded to Tibetans in India, the panel finds that the claimant does not fit the criteria established in Shamlou.[16] Therefore, the claimant is not excluded pursuant to Article 1E.[17]

INCLUSION

IDENTITY

[16]     The claimant presented a letter from the Samyeling Tibetan Settlement Office (CTA) to establish that he is “a bonafide Tibetan,”[18] who resided at a house within the Samyelling Tibetan Colony in Delhi.[19]

[17]     In addition, the claimant provided a letter from the Regional Tibetan Freedom Movement providing his correct date of birth and his Green Book number.[20] A Green Book is issued by the Central Tibetan Administration (the Tibetan government in exile).

[18]     The panel noted a discrepancy in the date of birth provided by the claimant at the port of entry,[21] his BOC,[22] and by the Tibetan authority. This discrepancy was put to the claimant and he was provided a reasonable opportunity to explain. He testified that when he was asked by an immigration officer for his date of birth he knew he was born in the year [XXX], however, he was not certain of the month and date. He explained that he never celebrated his birthday. The panel is cognizant of the claimant’s level of education and his loss of contact with his biological mother from a young age and his upbringing by his uncle and his wife. The panel accepts the claimant’s explanation. Furthermore, counsel in her submissions indicated that the Tibetan authority at times keeps more accurate records than the Tibetan families.

[19]     The claimant has also provided an affidavit from [XXX], who was his neighbour when they lived within the confines of the Tibetan colony in India.[23] [XXX] was accepted as a Convention refugee and he is a Canadian citizen.[24]

[20]     At the hearing, the claimant provided the original letters issued by the Tibetan authority.

[21]     Throughout the hearing, the claimant testified fluently in the Tibetan language. The claimant spoke of the unique culture and religion practiced by the people from Tibet. He appeared to have a genuine faith in his religious leader, His Holiness the Dalai Lama.

[22]     Accordingly, the panel accepts the claimant’s personal and ethnic identity as a Tibetan.

NATIONALITY

[23]     The claimant was born in India to parents of Tibetan ethnicity. As discussed under the exclusion section, the claimant has not acquired Indian nationality.

[24]     The claimant testified that he was born in Delhi, India on [XXX],[25] to parents who he believes are Tibetans but he was not certain of their nationality. The claimant testified that he has never met his biological father and he was taken from his biological mother, [XXX],[26] and raised by his uncle, [XXX], since the age of four.[27] He indicated that his uncle did not acquire Indian nationality. He added that his uncle told him that his mother also did not acquire Indian nationality and thus, she remains a Chinese national. The claimant stated that he resided in India throughout his life, until his departure in 2017. The claimant testified that he received education until the sixth grade, where he was taught in the Tibetan and English languages. He believes the school was financed by the Tibetan government in exile. He further stated that he was never a national of India since he was never issued an Indian Resident card or an Indian

Identity certificate. The claimant considers himself to be Tibetan. He believes that given the Chinese occupation of Tibet, his life would be at risk and he fears persecution on religious and racial grounds as a Tibetan who worships his Holiness the Dalai Lama.

[25]     According to an official at the Chinese Embassy in Ottawa:[28]

Tibetans who have left Tibet since 1959 and who have not obtained the citizenship of a foreign country are considered to be Chinese citizens. Because China does not recognize dual citizenship, those Tibetans who have acquired a second citizenship are not considered to be Chinese citizens.

In general, children acquire the citizenship of their parents. Like their parents, if the foreign-born children of the above-described Tibetans have not obtained the citizenship of a foreign country, they are considered to be Chinese citizens.

According to a representative of Asia Watch in New York, both the PRC [People’s Republic of China] and the international community consider Tibet to be part of China; therefore, Tibetans are considered to be Chinese citizens… [footnotes omitted]

[26]     Accordingly, on a balance of probabilities, based on the information available on his birth and his parents’ nationality, the panel finds that the claimant is a citizen of China. Thus, this is the only country of reference in this claim.

CREDIBILITY

[27]     The claimant was a credible and trustworthy witness. His responses were consistent with his level of education. The oral evidence provided by the claimant was consistent with his BOC[29] and is supported by the documentary evidence. The plight of the claimant as a Tibetan is supported by the documentary evidence, which is current and reliable. In addition, the documentary evidence emanates from reputable sources which do not have a vested interest in the merits of this claim.

WELL-FOUNDED FEAR OF PERSECUTION IN CHINA

[28]     The claimant regards himself as a Tibetan with a different language and culture from the Chinese. The claimant has never been to China and does not speak the languages. He regards his race and nationality as being Tibetan. He sees himself as a member of a social group, namely Tibetans.

Historical Context

[29]     There is overwhelming evidence regarding the 1959 Chinese invasion of Tibet and the Tibetan genocide that followed. The documentary evidence has established that human rights have been violated.[30]

Religions Persecution

[30]     The claimant believes in His Holiness the Dalai Lama as his political leader and religious leader. He fears persecution by the government of China due to his religious beliefs.

[31]     According to the 2019 United States Commission on International Religious Freedom (USCIRF) Report for China:[31]

…[T]he Chinese government continued to persecute all faiths in an effort to “sinicize” religious belief, a campaign that attempts not only to diminish and erase the independent practice of religion, but also the cultural and linguistic heritage of religious and ethnic communities, particularly Tibetan Buddhists and Uighur Muslims…

[32]     The 2019 annual report indicates that “[t]he Chinese government continued to use advanced surveillance technology and other measures to repress Tibetan Buddhists.”[32]

[33]     Further, the USCIRF report states that “[i]n 2018, the Chinese government continued to pursue a strategy of forced assimilation and suppression of Tibetan Buddhists throughout Tibet.”[33] The Chinese government restricts and regulates religious practices in Tibet. Monasteries have been destroyed, monks and nuns have been forced to express their opposition to the Dalai Lama, Tibetans found in possession of banned religious books or prayers have been imprisoned. The report further states that “[t]he Chinese government continued to accuse the Dalai Lama of blasphemy and ‘splittism,’ and cracked down on anyone suspected of so-called ‘separatists’ activities.”[34]

[34]     Therefore, the panel finds that freedom of religion is denied to the claimant, as a Tibetan, should he be returned to China.

STATE PROTECTION

[35]     There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.[35]

[36]     The claimant testified that his agent of persecution is the government of China.

[37]     According to a November 2016 report by the International Campaign for Tibet and the International Federation for Human Rights (FIDH): “On 1 January 2016, China’s new counter­ terrorism law came into effect, despite serious concerns voiced by human rights groups regarding the potential for this law to be used to repress religious and ethnic groups.”[36]

[38]     This report further states the following:[37]

These laws and other measures are essential components of a comprehensive security architecture being established by the Chinese authorities, encompassing military, political and Party propaganda objectives as well as heightened surveillance and media censorship. The dramatic expansion of the powers of military and police in the People’s Republic of China (PRC) – backed by grass roots propaganda work and electronic surveillance – comes under the general rubric of ‘stability work’, which is political language for the elimination of dissent and enforcement of compliance to Chinese Communist Party policies. Under the leadership of the Chinese Party Secretary and President Xi Jinping, the Chinese government is enforcing a comprehensive legal framework which represents an attempt to legitimize through legislation existing repressive measures designed to intensify control by the CCP [Chinese Community Party] and suppress dissent.

[39]     Moreover, “China’s new counter-terrorism law allows for the conflation of domestic protest, dissent or religious activity with international terrorism thus reducing the pressure for governments to resolve both Tibetans’ and Uyghurs’ genuine grievances.”[38]

[40]     The Tibetan Center for Human Rights and Democracy’s 2018 annual report states the following:[39]

The arbitrary arrest and detention of peaceful Tibetan protesters and other human rights activists continued unabated. In particular, extended criminal detention preceding arrest has increased, providing more latitude to law enforcement officers to engage in violent interrogation and torture methods to obtain forced confessions. Other forms of illegal detention such as confinement in ‘legal education centers’ have increased after the abolition of Re-education Through Labour camps and the acceleration of political re-education campaigns in many parts of Tibet. Tibetans suspected of criminal offences, particularly those pertaining to political matters, are almost always denied the right to fair trial or a hearing. Very few Tibetans, if any, manage to exercise any rights to a fair trial.

Restrictions on the freedom of peaceful assembly remained severe as Chinese police and paramilitary troops engaged in violent suppression of peaceful protesters calling for the return of the Tibetans’ spiritual leader, His Holiness the Dalai Lama, freedom and human rights.

[41]     The same report notes:[40]

Similarly, the right to freedom of religion and belief was subjected to heightened levels of control and restriction, through the enforcement of the revised regulations on religious affairs, the implementation of the campaign against ‘organised crime’ particularly targeting religious institutions and practitioners, and the issuance of local directives to ban Tibetan schoolchildren from participating in religious activities. The policies known as ‘adapting religion to socialism with Chinese characteristics’ and ‘sinicising Tibetan Buddhism’ have led to an increase in compulsory political reeducation campaigns and an erosion of flexibility at the local level to control the religious education of minors, and limitations on informal places of worship.

[42]     The NDP[41] and the documentary evidence submitted by the counsel to the claimant[42] makes clear that the state is complicit in the violence committed against members of the Tibetan community. Accordingly, in these circumstances, it is clear and convincing evidence that the state is unable or unwilling to protect the claimant.

[43]     Thus, the panel finds that the claimant has met his burden of proof, on a balance of probabilities, and that the presumption of state protection has been rebutted.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[44]     The Federal Court of Appeal established a two-part test for assessing an IFA in

Rasaratnam and Thirunavukkarasu:

(1)       As per Rasaratnam, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”[43] and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.

(2)       Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claimant, for him to seek refuge there.[44]

[45]     The claimant bears the burden of proof to demonstrate that he would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment in all of China.

[46]     The claimant provided credible and consistent sworn viva voce evidence that the agent of persecution is the government of China. The claimant testified that he fears persecution throughout China due to his Tibetan ethnicity.

[47]     The documentary evidence indicates that there are obstacles to the freedom of movement for members of the Tibetan community. The Tibetan Center for Human Rights and Democracy’s 2018 annual report states as follows:[45]

The right to freedom of movement includes the right of a person to enter his or her own country. Whether Tibetans are living in other countries as refugees or as citizens of other countries, they have the right to visit or return to Tibet because of the “special ties to or claims” in relation to their homeland. But in some areas of Tibet, Chinese authorities were seen implementing an undeclared policy that barred Tibetan refugees from returning to their hometowns. Although temporary permits to visit family and relatives are still issued selectively to some Tibetan refugees living in India, they are not allowed to move back permanently. A visiting Tibetan refugee from India was told by Chinese authorities in Dowa Township in Rebkong County, Malho (Ch: Huangnan) TAP that a new policy enforced since January 2018 no longer allows returning Tibetans to live permanently in their hometowns. There is no known evidence, either in written or oral form, of such policy promulgated by Chinese authorities. It appears to be one of the numerous ad-hoc measures imposed by local authorities as part of the ‘stability maintenance’ policy. [footnotes omitted]

[48]     Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout China. Thus, in the particular circumstances of the claimant, who is of Tibetan, a viable internal flight alternative is unavailable.

CONCLUSION

[49]     Having considered the totality of the evidence, the relevant statutory provisions, and jurisprudence, the panel finds that the claimant has demonstrated that there is a reasonable chance he would be persecuted on grounds of race, nationality, and religion, should he be returned to China today. Accordingly, the claimant has a well-founded fear of persecution.

[50]     For the above-mentioned reasons, the panel finds the claimant to be a Convention refugee.


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

[2] Ibid., Schedule (Subsection 2(1)), Sections E And F Of Article 1 Of The United Nations Convention Relating To The Status Of Refugees, Article 1E.

[3] Ibid.

[4] Shamlou, Pasha v. M.C.I. (F.C.T.D., no. IMM-4967-94), Teitelbaum, November 15, 1995. Reported: Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.), at para 35.

[5] Exhibit 7, Country Condition Documents, p.19, received October 17, 2018.

[6] Ibid.

[7] Williams, Manzi v. M.C.I. (F.C.A., A-241-04), Decary, Letourneau, Nadon, April 12, 2005. Reported: Williams v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 429 (F.C.A.).

[8] Exhibit 7, Country Condition Documents, received October 17, 2018.

[9] Ibid., p.22.

[10] Ibid., p.28.

[11] Tretsetsang, Chime v. M.C.I. (F.C.A., no. A-260-15), Ryer, Webb, Rennie, June 9, 2016, 2016 FCA 175; Yalotsang, Perna v. M.C.I. (F.C., no. IMM-4191-18), Mactavish, May 3, 2019, 2019 FC 563, at para 9.

[12] Exhibit 8, Federal Court Jurisprudence, received February 3, 2020 — which includes: Pasang, Thinley v. M.C.I. (F.C., no. IMM-6585-18), Fothergill, July 10, 2019, 2019 FC 907, at para 23

[13] Exhibit 7, Country Condition Documents, p.33, received October 17, 2018. 

[14] Ibid.

[15] Choezom, Tendzin v. M.C.I. (F.C., no. IMM-1420-04), von Finckenstein, September 30, 2004, 2004 FC 1329, at para 14.

[16] Shamlou, supra, footnote 4.

[17] IRPA, supra, footnote 1, Schedule (Subsection 2(1)), Sections E And F Of Article 1 Of The United Nations Convention Relating To The Status Of Refugees, Article 1E.

[18] Exhibit 6, BOC Narrative Amendment and Personal Identity Documents, p.2, received [XXX], 2018.

[19] Ibid.

[20] Ibid., p.3.

[21] Exhibit 1, Package of information from the referring CBSA/CIC, received [XXX], 2017.

[22] Exhibit 2, BOC, response to q.1(c), received [XXX] 2017.

[23] Exhibit 9, Affidavit of [XXX], received [XXX], 2020.

[24] Ibid., para 3.

[25] Exhibit 6, BOC Narrative Amendment and Personal Identity Documents, p.3, received [XXX], 2018.

[26] Exhibit 2, Basis of Claim Form (BOC), response to q.5, received [XXX], 2017.

[27] Exhibit 6, BOC Narrative Amendment and Personal Identity Documents, p.1, received [XXX], 2018.

[28] Exhibit 7, Country Condition Documents, p.38, received [XXX], 2018.

[29] Exhibit 2, BOC, received [XXX], 2017.

[30] Exhibit 3, National Documentation Package (NDP) for China (December 20, 2019).

[31] Ibid., item 12.2, Key Findings

[32] Ibid.

[33] Ibid., Tibetan Buddhists.

[34] Ibid.

[35] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

[36] Exhibit 3, NDP for China (December 20, 2019), item 13.4, p.3.

[37] Ibid., p.9.

[38] Ibid.

[39] Ibid., item 13.9, Executive Summary.

[40] Ibid.

[41] Exhibit 3, NDP for China (December 20, 2019).

[42] Exhibit 7, Country Condition Documents, received October 17, 2018.

[43] Rasaratnam, Sivaganthan v. M.E.I (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.

[44] Thirunavukkarasu, Sathiyanathan v. M.E.I (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

[45] Exhibit 3, NDP for China (December 20, 2019), item 13.9, Freedom of Movement.

Categories
All Countries Sri Lanka

2020 RLLR 95

Citation: 2020 RLLR 95
Tribunal: Refugee Protection Division
Date of Decision: November 6, 2020
Panel: Diane L. Tinker
Counsel for the Claimant(s): Ian D. Hamilton
Country: Sri Lanka
RPD Number: TB7-08356
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000048-000052

REASONS FOR DECISION

[1]       The claimant, [XXX] is a citizen of Sri Lanka. The claimant claims to have well-founded fear of persecution at the hands of the Sri Lankan police, army as well as paramilitary groups due to his ethnicity as a young Tamil male from the north under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA).[1]

ALLEGATIONS

[2]       The claimant alleges that he [XXX] that was televised throughout Sri Lanka and, as a result, came to the attention of the EPDP (Eelan People’s Democratic Party) who wanted him to sing for them at their parties and campaign. The claimant declined but continued to be harassed by the EPDP to the extent of being kidnapped in [XXX] 2013. The claimant agreed to sing for the EPDP and was released and went to Columbo. Due to harassment of his family by the EPDP, the claimant returned home and again was kidnapped and this time beaten by the EPDP members in [XXX] 2013. The claimant stated that he was able to escape during the night and through his family, left Sri Lanka and went to Thailand.

[3]       The claimant claimed for refugee protection through the UNHCR, however, never received an answer. In [XXX] 2015, a new president was elected in Sri Lanka who promised that it was safe for people to return. The claimant returned to Sri Lanka in [XXX] 2015.

[4]       The claimant indicated that the CID (the Criminal Investigation Department) questioned him extensively in [XXX] of 2016 concerning his stay in Thailand and his ties to the Tamil Tigers (the LTTE) as he had two uncles in that organization: one, a Major who was killed and another living in the United Kingdom, who was active on social media concerning the Tigers.

[5]       The claimant and his family again feared for his safety and made arrangements for him to leave the country. The claimant left Sri Lanka in [XXX] 2016 and went to Dubai but was sent back. The claimant, through an agent hid in Sri Lanka until he was able to leave and arrived in Canada on [XXX] 2017 and claimed for refugee protection shortly thereafter.

DETERMINATION

[6]       I find that the claimant is a Convention refugee for the following reasons.

ANALYSIS

Identity

[7]       The claimant’s oral testimony and supporting documents filed[2] establish his identity as a citizen of Sri Lanka.

Credibility

[8]       I find the claimant to be credible and therefore accept what he alleged in his oral testimony and his Basis of Claim form.[3] This case was very well documented: the claimant provided corroborating documents showing the results of his beating by the EPDP, photos of his uncles with the leader of the Tamil Tigers and proof of winning the singing contest in Sri Lanka.[4]

Nexus

[9]       I find that there is a link between what the claimant fears and one of the five Convention grounds, specifically, ethnicity as a young Tamil male from the northern part of Sri Lanka and therefore, the claim is assessed under section 96.

Persecution

[10]     The claimant fears that if he were to return to Sri Lanka today, the police, including the CID as well as the EPDP would harm him due to his leaving the country for a considerable amount of time, first to Thailand for two years and then to Canada for three years. The claimant fears that the EPDP may kidnap and harm him again.

[11]     In arriving at my decision, it is necessary to consider the most recent country documentation which makes it clear the nature of the claimant’s jeopardy if he were to return to Sri Lanka today.

[12]     I have reviewed the country documentation, both that was disclosed by counsel[5] as well as information in the most recent National Documentation Package.[6]

[13]     Although the civil war ended in 2009 and there was hope for the Tamils in Sri Lanka with the election of Maithripala Sirisena in January 2015, but all hopes were dashed with the election of Gotabaya Rajapaksa in November 2019. This government’s current objective is “to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilize the unitary Sri Lankan state.”[7] Furthermore, as counsel pointed out in his submissions, the current government is using the Prevention of Terrorism Act to persecute any criticism of the government as an act of terrorism.[8] Freedom House has also indicated that the human rights situation has deteriorated significantly, especially in Tamil areas since the election of November 2019.[9] This Response to Information Request also states that there are abusive practices by the police and security forces including extrajudicial executions, forced disappearances, rape and torture against the Tamils.

[14]     As a returning young Tamil male, the claimant would also be harassed by the CID due to his family’s prominent connections with the LTTE and the current and continuing presence of his uncle on social media in the United Kingdom. As counsel in his submissions indicated, due to the claimant’s family connection with the LTTE, the Prevention of Terrorism Act could be used against the claimant under this current government and thus, could be subject to torture.

[15]     In summary, I find that due to the current government’s treatment of Tamils in Sri Lanka, there is more than a mere possibility that the claimant would be persecuted if he were to return to Sri Lanka.

CONCLUSION

[16]     I therefore determine that the claimant is a Convention refugee. The Refugee Protection Division therefore accepts his claim.


[1] Immigration and Refugee Protection Act, S.C. 2001, c.27, sections 96, 97(1)(a) and 97(1)(b).

[2] Exhibit 1, Package of information from the referring CBSA/IRCC; Exhibit 5, Photocopies of birth certificate, National Identity Card.

[3] Exhibit 2, Basis of Claim (BOC) form, TB7-08356.

[4] Exhibit 6, Claimant’s Supporting Documents – Photos of torture, singing contest and uncles, received [XXX], 2017.

[5] Exhibit 4, Country Conditions documentation.

[6] Exhibit 3, National Documentation Package (NDP) for Sri Lanka (September 1, 2020).

[7] Ibid., item 4.11.

[8] Ibid., item 2.6.

[9] Ibid., item 13.1.

Categories
All Countries Ukraine

2020 RLLR 69

Citation: 2020 RLLR 69
Tribunal: Refugee Protection Division
Date of Decision: October 7, 2020
Panel: Atam Uppal
Counsel for the Claimant(s): Patricia Ritter
Country: Ukraine
RPD Number: TB7-22915
Associated RPD Number(s): TB7-22971
ATIP Number: A-2021-00800
ATIP Pages: 000063-000068

REASONS FOR DECISION

[1]       [XXX] and her minor son [XXX] are claiming to be citizens of the Ukraine and are claiming refugee protection pursuant to Sections 96 and 97 (1) of the Immigration and Refugee Protection Act(IRPA).[1]

PROCEDURAL

[2]       [XXX] was appointed as the designated representative for the minor claimant, [XXX], a Roma activist appeared as a witness for the claimants.

[3]       This hearing took place via video conference using Microsoft Teams after the parties consented to proceed. I did not have the opportunity to review the original identity documents. I note however, that Canadian officials who have access to your original documents[2] and have not raised any concerns about your identity. Therefore, I find, on a balance of probabilities, that you are both nationals of the Ukraine.

[4]       I have considered your testimony, the testimony of the witness [XXX] who founded the [XXX] in 1977, country conditions documents provided by your counsel[3] and National Documentation Package (NDP) for the Ukraine.[4] I find that the you have established that there is a serious risk of persecution due to your ethnicity that being Roma, should you and your son return to the Ukraine today.

ALLEGATIONS

[5]       Here is a short summary of the allegations;

[6]       That you are a Roma of Servitka clan. You and your family were always victims of harassment and discrimination in the Ukraine. You describe a lifetime of discrimination living in the Ukraine as Roma.

[7]       You state that since the 2014 Revolution, things have become much worse for the Roma and the Roma are being becoming victims of serious persecution.

[8]       You faced illegal searches at your home by undercover Ukrainian police. The police illegally searched your house and took any valuables they found. If you objected or complained, you were arrested and physically abused.

[9]       You cite several such events when you were abused, thrown off train because you were easily recognized as a Roma wearing your traditional garments. Your minor son was also a victim of abuse at his school by both the students and teachers alike.

[10]     You arrived in Canada in [XXX] 2017 with the minor and your husband. Your husband left you and you are not aware of his whereabouts. Your claim was referred to the Board in [XXX] 2017.

[11]     You fear returning to the Ukraine today because you believe that discrimination and persecution for the Roma in the Ukraine is being encouraged by politicians and that the police is also the agent of persecution.

DETERMINATION

[12]     For the reasons that follow, I find that the claimants would face a serious possibility of persecution on a Convention ground and, on a balance of probabilities, would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon their return to the Ukraine, today.

Therefore, I find that the claimants are Convention refugee and that they do have a well-founded fear of persecution or harm should they return to the Ukraine.

ANALYSIS

Identities

[13]     In all refugee claims, the first thing a decision maker must decide is identity. I find that your identity as a citizen of the Ukraine is established by your testimony and copies of your passports in Exhibit 1. I did not have the opportunity to see your original passports but note that officials who have seen your originals, have not raised any concerns.

[14]     Your identity as Roma was established your testimony supported by your witness [XXX]. You were able to speak in Romani language and testified that you taught Romani to your son as well. In addition, I have two documents from the Roma Community Centre[5] in Toronto in support of your identity as a Roma.

[15]     Next, I considered credibility and find you to be a credible witness. Your testimony is consistent with your narrative. I note that you did not attempt to embellish your claim. Your story is believable and supported by objective documentary evidence.

[16]     Documentary evidence indicates that Roma in the Ukraine continue to face societal and institutional discrimination, and that Roma are denied basic human dignity. They experience significant barriers to education, housing, healthcare, social service, and employment.

[17]     Roma are reported to be the most discriminated against ethnic group in the Ukraine, Item

13.1 in the NDP states “Roma are widely regarded as one of Europe’s most marginalised communities. They experience discrimination and rights deprivations in various forms, including police brutality, school segregation and denial of the right to work.”[6]

[18]     Item 2.1 gives example of police failing to protect victims from harassment or violence from a group of violent nationalists from the National Druzhina organization – established with support from the National Corps. They attacked and destroyed a Romani camp in Kyiv after its residents failed to respond to their ultimatum to leave the area within 24 hours. Police were present but made no arrests, and they were recorded making casual conversation with the nationalists following the attack. This was not an isolated event, as there were numerous reports of societal violence against Roma during the year, often perpetrated by known members of violent nationalist hate groups. This report adds that Roma continued to face governmental and societal discrimination.

[19]     Item 13.7 in the NDP states that “discrimination against Roma is at every level of society, including among police, prosecutors, and officials.”[7] This report adds that “throughout 2018, in the absence of any official protection, temporary settlements of Roma in Kyiv and Lviv became an easy target for right-wing violence … attacks on settlements have frequently been preceded by anti-Roma hate speech in the media or opportunistic statements from politicians.[8]

[20]     Justice La Forest in a landmark decision, Ward, in 1993 endorsed the concept of persecution as meaning “sustained or systematic violation of basic human rights demonstrative of a failure of state protection.”[9] That appears to be the case here. In your case the cumulatively impact of life long discrimination and humiliation amounts to persecution.

More importantly, I find that if you were to return to the Ukraine today, there is a serious chance that you will continue to face discrimination and persecution.

INTERNAL FLIGHT ALTERNATIVE and STATE PROTECTION

[21]     Documentary evidence shows that the state agents are complicit in acts of discrimination and persecution, and police stand by and do not intervene to stop violence, against Roma. Moreover, police enter your homes illegally and rob you of your possessions. Unlawful acts by the police even if reported go unpunished. Therefore, I find that you have rebutted the presumption of state protection in your particular circumstances. I also find, on a balance of probabilities, that there is no internal flight alternative available for you in the Ukraine.

CONCLUSION

[22]     Having considered all of the evidence, I find that there is a serious possibility of persecution should you return to the Ukraine today due to your ethnicity as Roma.

[23]     Therefore, I find you to be Convention refugees and accept your claims.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, sections 96 and 97(1).

[2] Exhibit 1, Package of information from the referring CBSA/CIC.

[3] Exhibit 6, Counsel Disclosure, received September 22, 2020; Exhibit 7, Country Conditions and Claimants’ Personal Disclosure, received September 22, 2020.

[4] Exhibit 3, National Document Package (NDP) for Ukraine (June 30, 2020).

[5] Exhibit 7, Country Conditions and Claimants’ Personal Disclosure.

[6] Exhibit 4, NDP for Ukraine (June 30, 2020), item 13.1, s. 2.2.

[7] Ibid., item 13.7, s. Key Findings

[8] Ibid., s. Livehood

[9] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

Categories
All Countries Czech Republic

2019 RLLR 147

Citation: 2019 RLLR 147
Tribunal: Refugee Protection Division
Date of Decision: January 7, 2019
Panel: H. Ross
Counsel for the Claimant(s): Howard Gilbert
Country: Czech Republic
RPD Number: TB6-04818
ATIP Number: A-2021-00655
ATIP Pages: 000040-000051

REASONS FOR DECISION

[1]       [XXX], the principal claimant, [XXX] and [XXX] (a.k.a. [XXX]) claim protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)1

[2]       In accordance with Rule 55 of the Refugee Protection Division (RPD) Rules the claims were heard jointly,2 with the principal claimant being designated the representative for the three minor claimants.3 

ALLEGATIONS 

[3]       The claimants rely on the allegations set out in the narrative portion of the principal claimant’s Basis of Claim Form (BOC)4. Briefly, the claimants allege a well-founded fear of persecution in the Czech Republic due to their Roma ethnicity. They claim to be afraid of the ethnic Czech population, racist elements in Czech society, namely, skinheads and the police. The claimants also state that they do not have a reasonable expectation of state protection, as whenever they have made attempts to obtain state protection, the police did not respond to their attempts. 

DETERMINATION 

[4]       For the following reasons, the panel finds that the claimants are Convention refugees. 

ISSUES 

[5]       The determinative issue in the claim is credibility. At issue also is the claimants’ delay in claiming protection, and their failure to claim protection in the United States (US). 

ANALYSIS 

Identity 

[6]       The panel finds that the claimants’ identities as nationals of the Czech Republic are established by the copies of their passports, found in Exhibit 1.5 

[7]       The panel also finds that the claimants’ ethnic profiles as Roma persons is satisfactorily established on the basis of the principal claimant’s testimony, the attestation from the Roma Community Centre,6 and also by the fact that during the hearing, interpretation services were provided using the Romungro dialect of the Roma language. 

Credibility 

[8]       In assessing the credibility of the claimants’ allegations of discrimination, the panel noted that there were several issues relevant to the assessment, namely the principal claimant’s failure to claim protection in US, his re-availment of the protection of the Czech Republic, and his delay in claiming protection once the claimants arrived in Canada. The panel considered each of these issues in turn. 

Delay in claiming 

[9]       The claimants arrived in Canada on [XXX] 2016, and made claims for protection on or about [XXX] 2016.7 A witness, [XXX], was called to explain the delay in claiming.8 She provided a number of reasons for the delay, including that she had to meet with the claimants several times before the forms were completed. The panel considered her evidence, as well as the length of the delay in assessing the impact of the delay on the claimants’ credibility. The delay is was six weeks. The panel concluded that when the totality of the circumstances is considered, a six-week delay is not so lengthy as to seriously impugn the credibility of the claimants. 

Failure to claim elsewhere/re-availment 

[10]     The principal claimant travelled to the US in 2012, but did not make a claim for asylum. He testified that having travelled to the US on a temporary work programme, and being alone in the US, he only wanted to return to his family. He explained that had he claimed asylum in the US, he likely would have been separated from them for a long time, something that he did not want to do. 

[11]     Counsel submitted that the principal claimant had provided a reasonable explanation for his failure to claim asylum in the US, and why he returned to the Czech Republic. On considering the principal claimant’s explanation, the panel concluded that the explanation was credible, in the circumstances of the family being a young family. Accordingly, the panel finds that the credibility of the principal claimant was not undermined by the fact that he did not claim protection in the US and returned to the Czech Republic. 

Did the claimants experience discrimination? 

[12]     In their BOC, the claimants alleged a well-founded fear of persecution in the Czech Republic due to their Roma ethnicity.9 In their amended narrative, they detailed their living circumstances which they described as poor and crowded.10 The settlement in which they lived was primitive, its roads were unpaved, there was no running water, garbage pickup was sporadic. In addition, the settlement was not serviced by public transportation. The claimant alleged that conditions in similar Czech communities was radically different from those in the Roma settlement. The principal claimant testified that he made several attempts to find alternate housing through government agencies, but was turned down at each attempt. 

[13]     The principal claimant testified as to the difficulties he and the other claimants encountered in public places and in obtaining publicly-available services. His cited incidents where he and his family were refused service in restaurants, followed in stores, as well as being attacked and beaten on public transit. Although the claimants turned to the police for assistance, the police did not act on their reports. 

[14]     In response to the panel, the principal claimant described the following incidents of discrimination: 

a) being refused employment that had been promised to him through agent; 

b) being refused public housing although such housing was available; 

c) being constantly humiliated in public spaces, particularly in shops where the family was followed; and 

d) the family was refused service in restaurants. 

[15]     The principal claimant alleged that the family’s Roma ethnicity was the sole reason for the discriminatory treatment meted out to him and the associate claimants. 

[16]     In the instant case, the discriminatory acts include being refused employment some 30-40 times. The principal claimant alleged he had been unemployed since 1998.11 He testified that he made some 30-40 unsuccessful attempts to finds work. As he did not speak the Czech language well, a Czech speaking friend would call the prospective employer on his behalf. Assured that there was work to be had, the principal claimant would then report to the workplace. Invariably, he would then be told that there was no work. The principal claimant cites this situation as an example of anti-Roma racism. The panel is not entirely persuaded of his position, because it can be argued that the employer never agreed to hire the principal claimant. He was intending to hire the Czech speaking person to whom he spoke. Put simply, the principal claimant was not the person the employers were expecting. In the result, the panel is not persuaded that the principal claimant’s ethnicity was the only deciding factor at play. 

[17]     With respect to their treatment in the public sphere, the panel finds that following the claimants while they shopped and refusing entry into restaurants, without justification, are clearly discriminatory acts. 

[18]     The principal claimant also described the following incidents: 

• in the summer of 2015, an ice cream parlour refused to serve his wife and son; 

• that same summer, the principal claimant’s mother and son were ejected from coffee shop; 

• substandard medical care – Roma forced to wait or pay for services that should be free; 

• intimidation by skinheads – in [XXX] 2013 about 80 skinheads marched through their community, screaming insults and beating Roma. The police took no action when complaints were made, although the complainants were able to describe their attackers; and 

• in [XXX] 2014, the principal claimant and his spouse were attacked in a similar fashion. They went to a hospital and after a three to four hour wait, they were told that the doctor was too busy to see them. They went to the police station where they made a complaint. When they followed up two weeks later, the police informed them that the case was closed due to a lack of information. 

[19]     The panel finds that these actions are all clearly discriminatory in nature. In fact, the [XXX] 2013 incident is clearly of a criminal nature. 

The documentary evidence 

[20]     The Board’s documentary evidence stated that racial discrimination is widespread in the Czech Republic. The Report of the Czech Ombudsman Office cites the following statistic: 

Racial or ethnicity-based discrimination is perceived as the most frequent type of discrimination in the Czech Republic. Almost two thirds of respondents believe it is widespread, one fifth even believes it is extremely widespread.12 

[21]     With respect to the perception of how readily redress for discrimination is available, report goes on to note that: 

[t]he respondents are very sceptical in rating the chances of the victims to assert their rights. Only 15 % believe that it is easy to get help for the victims of discrimination; and only 2 % of the respondents find the redress very easy. On the other hand, three quarters of the respondents think that it is difficult to invoke their rights, and more than one quarter consider it to be very difficult.13 

[22]     The US Department of State (DOS) Country Reports on Human Rights Practices for 2018 in the Czech Republic, identifies “crimes involving violence or threats of violence” against members of the Roma population as among the human rights issues prevalent in that country.14 Amnesty International makes specific reference to the ruling of the police in the death of a Roma man who died while being restrained by municipal officers and employees of a pizzeria as a result of his allegedly aggressive behaviour.15 The police discontinued their investigation finding that no crime had been committed. 

[23]     In its latest report, the US DOS states the following regarding the treatment of Roma persons: 

National/Racial/Ethnic Minorities 

There were approximately 300,000 Roma in the country, and many faced varying levels of discrimination in education, employment, and housing and have high levels of poverty, unemployment, and illiteracy. 

Hate crimes against Roma continued to be a problem… Observers reported hate crimes are not sufficiently recognized by police, prosecutors, and judges, who often lacked will or adequate knowledge. 

[… ] 

Despite legislative measures aimed at desegregation of Roma in education, according to a Ministry of Education study, more than 29 percent of students in special schools were Roma, compared with 3.6 percent in regular elementary schools. After the introduction in 2017 of a free compulsory year of preprimary education at the age of five to six years old, the enrollment of Romani children in kindergartens increased slightly but remained markedly below the levels for non­ Romani peers. To support desegregation of Roma in schools, the government increased funding to provide additional support to students with special needs in mainstream schools. 

Approximately one-third of Roma lived in “excluded localities” or ghettos. While the law prohibits housing discrimination based on ethnicity, NGOs stated that some municipalities discriminated against certain socially disadvantaged groups, primarily Roma, basing their decisions not to provide housing on the allegedly bad reputation of Romani applicants from previous residences. 

The 2017 amendment to the law on persons with material need, which was intended to solve housing problems, in some cases had the opposite effect. The amendment allowed cities to declare certain areas as having an “increased occurrence of socially undesirable activity”. In such designated zones the government paid only a part of housing subsidies. Some cities started to use this instrument to get rid of Roma and other low-income citizens. 

In September the European Roma Rights Center criticized President Zeman for his negative statements on Roma and in an open letter called for his resignation. 

Zeman had stated that the unemployed persons in one of the country’s villages he visited were exactly the Roma who were forced to work during communism under the threat of imprisonment. 

Roma were the most frequent targets of hate speech on internet. 

In September the district court in Tachov fined a woman 20,000 koruna ($800) for posting threatening comments on the internet under a school photo of first graders from a local school. The children were mainly Romani, Arab, and Vietnamese, and the comments suggested sending them to gas chambers, shooting them, or throwing a hand grenade into the classroom. Police did not originally qualify the incident as a hate speech offense, but the supreme prosecutor requested a further investigation that led to the conviction.16 

[24]     The panel takes the documentary evidence to indicate that, in the Czech Republic, there is widespread discrimination against Roma persons. The panel finds that the claimants have clearly experienced discrimination. 

Discrimination as opposed to persecution 

[25]     The issue for this panel is whether the discrimination these claimants experienced in the Czech Republic has risen to the level of persecution such as to bring them within the Convention refugee definition. Counsel for the claimant took the position that it has. He described the situation for Roma in the Czech Republic as being dire. He argues that the discrimination that Roma, in general, and the claimants in particular, experience in the Czech Republic has risen to the level of persecution. 

[26]     The United Nations High Commissioner for Refugees (UNHCR) Handbook and Guidelines discusses the issue of discrimination, noting the following: 

54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. 

55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.17 

[27]     The UNHCR document provides guidance in the determination of whether the experiences of a claimant have, cumulatively, risen to the level of persecution. The Federal Court in Liang, citing paragraphs 54 and 55 of the UNHCR Handbook, affirmed that in the exercise of determining whether cumulative discrimination and harassment constitutes persecution, it is necessary to “evaluate the claimant’s personal circumstances and vulnerabilities including age, health, and finances … “18 

[28]     The principal claimant’s personal circumstances include a low level of education, limited employment prospects, and limited finances. Balanced against these are the facts that he is relatively young ([XXX]), and in good health. This is also true of the female claimant. 

[29]     The claimants allege, and their counsel submits, that the measures of discrimination they faced in the Czech Republic has led to consequences of a substantially prejudicial nature for them, namely serious restrictions on their access to normally available educational facilities and their right to earn their livelihoods. In addition, counsel submits that, as Lovari, the claimants are made particularly vulnerable to discrimination. While conceding that many Roma are well integrated into Czech society, counsel described the [XXX] as being among the most excluded group of Roma in the Czech Republic. He stated that they, along with the [XXX], tended to live in isolated communities and were susceptible to the types of discriminatory practices the documentary evidence speaks to. 

[30]     In its report, Freedom House, estimated that the size of the Roma population in the Czech Republic was about 250,000 persons.19 Freedom House stated that Roma face “occasional threats and violence from right-wing groups.”20 

[31]     The panel finds the two reports to be reliable, as the information they contain originates from sources that have an awareness of the situation of Roma in the Czech Republic. The sources cite information from NGOs and appear to be unbiased. Moreover, while the two reports are distinct, they contain and confirm substantially similar information. The panel gives significant weight to this objective information. 

[32]     Nonetheless, in assessing whether the discrimination the claimants experienced has risen to the level of persecution, the panel is mindful of the dicta of the Federal Court in Liang, regarding the necessity of evaluating a claimant’s personal circumstances and vulnerabilities including age, health, and finances when determining whether cumulative discrimination and harassment constitutes persecution.21 

[33]     The principal claimant’s personal circumstances are that: 

• he is from one of the groups of Roma that are not integrated into Czech society; 

• he lacks much formal education, does not speak the Czech language well, and has considerable difficulty finding employment; 

• he is relatively young, with a growing family; and 

• he and his family members have personally suffered a number of racist incidents, including witnessing an intimidatory march of skinheads through their community and an attack by skinheads in [XXX] 2014. 

[34]     In considering whether the incidents of discrimination amount, on a cumulative basis, to persecution, the panel is not persuaded that being refused service at an ice-cream parlour or being asked to leave a café amounts to persecution. Unpleasant yes, embarrassing, yes, but these appear to have been isolated incidents for which there may or may not be other explanations, which were not disclosed to the panel. 

[35]     The march through the claimant’s community was patently intended to frighten and intimidate all of the Roma in the community. The DOS Report indicates that: 

Human rights issues included crimes involving violence or threats of violence against members of the Romani minority. 

The government took steps to prosecute and punish officials who committed abuses in the security services and elsewhere in the government.22 

[36]     In the panel’s view, this speaks to the willingness of Czech authorities to investigate and prosecute offences against the Roma and other minorities, which is at odds with the claimants’ position that state protection will not be available to them. 

[37]     The result is that it is not clear to the panel that the incidents of discrimination the claimants complain of rise to the level of persecution. At the same time, the panel is also mindful of the statements in paragraph 55 of the UNHCR Handbook relating to cumulative discrimination. In particular, the effect of the measures of discrimination on the mind of the claimants. In testimony, the principal claimant discussed the effect the various incidents have had on him. The panel found him to be largely credible, as he answered all questions put to him without seeming exaggeration or subterfuge. He expressed his apprehension of returning to the Czech Republic, and the certain discrimination he and his family would face. The panel is not an expert in [XXX] issues. However, it finds that, in all the circumstances of the case, including the principal claimant’s personal circumstances, the cumulative effect of the discriminatory incidents was that they have created a feeling of apprehension and insecurity in the mind of the principal claimant, as regards his future existence and that of his family if returned to the Czech Republic. The panel finds that this apprehension is not limited to their financial existence, as the principal claimant could go abroad to earn money as he has already done. 

The claims of the associate claimants 

[38]     As stated earlier, each associate claimant relies on the same set of circumstances as the principal claimant. The panel finds that they have established a nexus to the Convention refugee definition as members of a particular social group, namely, family members of the principal claimant, as well as by virtue of their Roma ethnicity. As such, the panel determines that the outcomes of their claims will be similar to that of the principal claimant. 

CONCLUSION 

[39]     For the reasons provided, the panel finds that there is a reasonable chance that the principal claimant would be persecuted on the ground of his Roma ethnicity if returned to the Czech Republic. The panel determines the principal claimant to be a Convention refugee. His claim for protection is accepted. 

[40]     The panel makes a similar determination with respect to the associate claimants. Their claims are also accepted. 

(signed) H. Ross 

January 7, 2019 

1 The Immigration and Refugee Protection Act, S.C.2001, c.27, as amended, sections 96 and 97(1).
2 Refugee Protection Division (RPD) Rules SOR/2012-256, Rule 55.
3 Ibid., Rule 20.
4 Exhibits 2, Basis of Claim Form (BOC)-TB6-04818.
5 Exhibit 1, Package of Information from the Referring CBSA/CIC, Certified True Copies of Passports.
6 Exhibit 11, Personal Disclosure received July 19, 2019, at p. 1.
7 Exhibit 1, Package of Information from the Referring CBSA/CIC, Generic Application Form for Canada.
8 Exhibit 12, Personal Disclosure received July 19, 2019.
9 Exhibits 2-6, BOCs.
10 Exhibit 10, BOC Amendment.
11 Exhibit 1, Package of Information from the Referring CBSA/CIC, Schedule A Form.
12 Exhibit 7, National Documentation Package (NDP) for Czech Republic (March 29, 2019), item 13.4.
13 Ibid.
14 Ibid., item 2.1.
15 Ibid, item 2.2
16 Ibid., item 2.1.
17 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, NCR/IP/4/REV.1, Reedited, Geneva, January 1992, UNHCR 1979, at paras 54-55.
18 Liang. Hanquan v. M.C.I. (F.C., no. IMM-3342-07), Tremblay-Lamer, April 8, 2008, 2008 FC 450 [Liang], at para. 22.
19 Exhibit 7, NDP for Czech Republic (March 29, 2019), item 2.5.
20 Ibid.
21 Liang, supra, footnote 18.
22 Exhibit 7, NDP for Czech Republic (March 29, 2019), item 2.1.

Categories
All Countries Hungary

2020 RLLR 54

Citation: 2020 RLLR 54
Tribunal: Refugee Protection Division
Date of Decision: July 21, 2020
Panel: Hazelyn Ross
Counsel for the Claimant(s): Marko Vitorovich
Country: Hungary
RPD Number: TB0-11379
Associated RPD Number(s): TB0-11378, TB0-11380, TB0-11381
ATIP Number: A-2021-00655
ATIP Pages: 000159-000170


REASONS FOR DECISION

[1]       This is a redetermination of the claim for Convention refugee protection made by [XXX], principal claimant, [XXX] (wife), [XXX], (minor claimant), and [XXX]. The claimants are citizens of Hungary who seek protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)1 on the basis of their Roma ethnicity.

[2]       Their claims for protection were initially heard jointly with those of the [XXX] family and a decision rendered in 2011. On an application for judicial review, Hughes, J. returned the matter to the Board for redetermination, on the ground that the Refugee Protection Division (the RPD) had made erroneous credibility findings and had failed to deal adequately with the issue of state protection. Hughes, J. also ordered that the claims of the two families be severed.

ALLEGATIONS

[3]       The claimants rely on the allegations in the narrative portion of the principal claimant’s Basis of Claim, (BOC)2. The following is a summary of those allegations.

•           That they are Roma, and readily recognised as such by their physical appearance and mode of dress;

•           They have suffered severe discrimination and harassment in their native Hungary, which discrimination and harassment started in school and has been lifelong;

•           They have been abused by the Hungarian police with the harassment growing worse during the 1990’s;

•           Hungarian Guard and skinheads attack them and other Roma frequently;

•           During an attack on [XXX] 1995, the wife was beaten so severely that she [XXX];

•           In the fall of 1996 a group of 4-5 skinheads attacked the principal claimant at his home. The attackers dragged him outside, where they beat him. They set fire to his home. They also beat his neighbours. The claimants went to the police but were told that the police would not help;

•           While the atmosphere was calmer during the 2000’s, between [XXX] 2005 and [XXX] 2009, the claimants were victims of a number of anti-Roma incidents. Their family members and friends were also victims of anti-Roma discrimination and violence. The principal claimant was kept naked in a cell for three days.

•           In [XXX] 2006, police arrested and detained the principal claimant on suspicion of theft as he was going to visit his wife after she had [XXX]. The police accused him of stealing the items he was taking to her. He was detained for three days. When he was released, he was asked whether he wished to file a complaint against the arresting officers. He provided the badge numbers of the officers who arrested and interrogated him, but was told that those badge numbers did not exist.

•           In [XXX] 2009, the wife and the principal claimant were returning home from a movie when the police stopped them for an identification check. The wife was let go, but the principal claimant was again detained for three days. His clothes were taken from him and he was kept naked for the entire three days. He was beaten during the first night and interrogated over the next two days of his detention, all with the intention of making him confess to crimes. When he was released, he was asked whether he wanted to make a complaint about his detention, however, when he said he wanted to, the officer asked him to consider it carefully as they [the police] would look into his family (a veiled threat).

•           The claimants made the decision to leave Hungary in [XXX] 2009, but before they could do so, they were victims of several serious incidents. On [XXX], 2010 Hungarian Guards attacked the wife and her mother while they were in town. The wife suffered injury to her head, arms, and legs. When they tried to make a complaint, the officer on duty accused the principal claimant of beating the wife and ordered the claimants to leave the police station.

•           In [XXX] 2009, Hungarian Guards violently invaded the claimants’ home, forcing them to flee. The Guards tried to set fire to the home, but the claimants re-entered the home and were able to douse the fire before it could spread.

•           All attempts to seek police protection proved futile, as each and every time they turned to the police, the police refused to assist them.

DETERMINATION

[4]       For the following reasons, the panel finds that the claimants are Convention refugees.

ANALYSIS

The Claimant’s Evidence

[5]       At the hearing, both adult claimants gave extensive oral testimony about the major incidents that prompted them to leave Hungary. They testified that they are readily identified as Roma persons by their physical appearance. As a result, the wife has been subjected to numerous random attacks while out on the street, which attacks she blamed on the reluctance of the white Hungarian population to accept the Roma. The principal claimant testified that he is readily identified as a Roma person by the shape of his face, his large nose and the colour of his skin. As a result, he has had trouble finding work and was attacked at least twice a month. He spoke of mistrust when he was out in the public sphere that culminated in him being falsely arrested and accused of theft in [XXX] 2006.

[6]       When she was asked what prompted the family to leave Hungary, the wife responded that the turning point was the home invasion of [XXX] 2009.

The Major Incidents

[7]       In assessing the wife’s oral testimony about the major incidents in the claim, the panel finds that overall her testimony was not credible and trustworthy because much of that testimony was exaggerated or unsubstantiated. This was particularly true of her testimony respecting her experience with the medical field.

The Wife’s Experiences with the medical system

[8]       The wife submitted medical reports that show that she had [XXX]. She alleged that the only reason she had the [XXX] was because the doctor who performed the previous [XXX] was negligent. She attributed his alleged negligence to her Roma ethnicity. She testified that he was silent when she confronted him with his negligence. The wife interpreted the doctor’s silence as proof that she was correct in her assumptions.

[9]       The panel gives little weight to this part of the wife’s testimony because it is internally inconsistent and contradicted by the medical reports she submitted. The medical report shows that the wife suffered from [XXX] and underwent [XXX] to address her condition. The first was in [XXX] 2000; and the second in 2006. The 2006 [XXX] was required because her condition had returned.3 When the panel gave the wife the opportunity to respond to the content of the medical reports, she asserted that she had only [XXX]. This response is inconsistent with her earlier testimony that she had [XXX] for the same condition, one of which was unnecessary and was entirely due to the doctor’s negligence and anti-Roma sentiment, a position she maintained throughout the hearing.

[10]     The panel is not an expert in any discipline of medicine, therefore, it is unable to attribute, as the wife did, that the [XXX] in 2006 was a) unnecessary, and b) occasioned only by the doctor’s racism. Further, given the inconsistency between the medical report and the wife’ s assertions that there were [XXX]; and her later denial that there had been a [XXX], the panel finds that her allegations that the doctor was negligent in his treatment of her condition because he harbored racist sentiment towards the Roma are neither credible nor trustworthy.

[11]     The wife also alleged medical misconduct when she gave [XXX]. She claimed that the staff forced her to [XXX], when, due to her prior [XXX], she was supposed to [XXX] section. She testified that she brought this to the staff’s attention, who ignored her. Instead the medical staff performed tests designed to [XXX] and forced her to [XXX] “then and there’. In her view, the medical personnel did not act in a professional way and wanted her to suffer because she was Roma.

[12]     For the following reasons, the panel rejects these allegations. The medical report regarding this event lists the following diagnosis: [XXX]

[13]     The medical report regarding this event sets out the circumstances of the wife’s [XXX] as:

“she got registered into our department following the [XXX] and the [XXX] got organised at [XXX] with a [XXX]. In regards to the previous [XXX] removal, to the [XXX] that is involved into the [XXX] and the prolonged period of time the [XXX] was completed with [XXX]; as a result of which a [XXX] without any complications … “4

[14]     The panel interpreted this portion of the medical report to be saying that the wife went into [XXX]. That she suffered from [XXX] and that due to additional medical complications relating to her previous [XXX] and the length of [XXX], a decision was made to [XXX]. When the panel gave the wife the opportunity to respond to its interpretation of the medical report, she reiterated her claim that, due to her Roma ethnicity, the medical personnel forced her to [XXX] over her protestations. She maintained that as she was present at the time she was in a good position to assess how the staff acted towards her. In response to her counsel, she testified that during the [XXX] she was diagnosed with [XXX] and that her doctor had told her that it would be better for her to have a [XXX] so that they do not burst.

[15]     While not disputing the wife’s subjective appreciation of the attitude of the medical staff, the panel is unable to find, as she suggested, that anti-Roma racism was the reason for the medical actions that were taken. It is clear that the wife felt that because of her earlier [XXX] she could not or should not have to [XXX]. No objective medical evidence was provided on this point, and, without additional information, the panel is unable to find, as the wife asserts, that the medical decisions taken by the staff were motivated solely by anti-Roma racism. The panel gives little weight to the wife’s testimony regarding the medical treatment she received when [XXX].

The October 2009 Home Invasion

[16]     The claimants allege that in [XXX] 2009 Hungarian Guards entered their home in an unprovoked attack. The wife testified that they entered through the window. As the Guards came in, the family fled through the back door. She testified that as they fled, she looked back. She noticed that the Guards were not following them and were, in fact, leaving. The family returned to the house and on entering noticed that the Guards had started a fire using some of the family’s clothing. They put the fire out. The principal claimant corroborated the wife’s account but added that the fire did not spread because the Guards had used their damp clothes to start the fire.

[17]     While the description of the attack aligns with the claimants’ general allegations as well as with the claims of Roma claimants, generally, for the following reasons the panel finds that the claimants’ account of the incident is not credible and trustworthy.

[18]     According to the claimants the incident was relatively brief. The Guards came in through the window, the claimants fled through the back door, the Guards started a fire; they left and the claimants returned home. The panel is not prepared to accept that the Guards would use damp clothes to start a fire; even, if they did, the panel is not prepared to accept that their attempt would yield a fire that the claimants would be forced to put out. The panel is of the view that this is not what could reasonably be expected in those circumstances and, therefore, the credibility of the claimants’ testimony regarding the [XXX] 2009 home invasion is seriously undermined. The panel finds, on a balance of probabilities, that the alleged home invasion did not occur.

The Other Incidents

[19]     The claimants alleged that following an attack on [XXX] 1995 the wife suffered a [XXX] as a result of the injuries she received. No independent evidence was put forward that could link the alleged [XXX] to an attack by Hungarian guards. Further, the wife’s testimony about the [XXX] mises concerns that the panel has not been able to resolve in her favour. She testified that while she went to the hospital because she felt pain, the only procedure that was carried out was a [XXX] that she testified was done at her urging. She received no other medical treatment, even though the doctor told her that the [XXX].

[20]     The panel finds that, notwithstanding the allegation that Roma women are routinely discriminated against in hospital, the events described by the wife are not in keeping with what might reasonably be expected where a [XXX] woman attends hospital complaining of with abdominal pain. Given that a [XXX] was in fact performed, the panel is not persuaded that the wife received discriminatory treatment amounting to persecution when she [XXX].

The [XXX] 2010 Incident

[21]     The claimants alleged that shortly before the wife came to Canada, Hungarian Guards attacked her and her mother. This incident allegedly took place on [XXX] 2010. The wife claimed to have suffered injury to her arms and legs. She testified that she received no assistance from either the police or the doctors. Photographs of her bruises were tendered as part of Exhibit 115. The wife testified that the Immigration Officer who interviewed them advised her to take the photographs. The photographs were the only supporting documentation respecting the alleged incident. The panel is aware of the presumption of truthfulness that attaches to the wife’s sworn testimony, however, in light of its prior credibility findings, and absent any supporting documents that originated in Hungary, the panel is unable to draw any inferences or make any findings regarding the injuries and the alleged incident because the photographs cannot tell the circumstances under which the injuries were sustained.

[22]     While the panel does not dispute that the wife, as a Roma person, has experienced discriminatory treatment in Hungary, given the credibility concerns that the panel has not been able to resolve in her favour, the panel finds that the wife has not met her onus to establish, on a balance of probabilities, that she faces a serious possibility of persecution if returned to Hungary. The panel finds that the wife is not a Convention refugee. For the same reason, the panel finds that she has not established that she is a person in need of protection.

The Principal Claimant

[23]     The principal claimant testified that he was readily identified as a Roma person by his appearance, specifically his large nose. The panel places little reliance on this claim, nonetheless, it finds, on a balance of probabilities, that the principal claimant’s association with his wife and her family and residence in a Roma area would likely cause him to be perceived as being Roma, which in turn leaves him open to the type of discriminatory treatment accorded to Roma persons in Hungary. Having made this finding, the panel examined the principal claimant’s allegations of persecution. His allegations centred around two incidents. In both incidents the police arrested and detained him for seventy-two hours before releasing him without charge. The documentary evidence indicates that this is common practice in Hungary.

[24]     The first incident occurred in 2006, shortly after the wife [XXX]. The principal claimant testified that he was on his way to the hospital to visit her. He was taking her some supplies she needed, things like shampoo and sanitary napkins. On his way to the hospital the police stopped him. The officers accused him of stealing the items, a charge he denied. The police took him to the police station, where he was detained for seventy-two hours before being released without charges. During this period the police questioned and beat the principal claimant. For the three days he was detained, his family did not know where he was.

[25]     The second incident occurred in [XXX] 2009. The principal claimant testified that when the police arrested him, they told him that they were looking for him because he was charged with theft. At the police station he was stripped of his clothes, and in his words “given dirty rags”. But for these rags he was naked. He remained naked throughout the three days of his detention. The principal claimant testified that he was humiliated during the three days he was detained stating that “it was unnatural the way they humiliated me”. Asked to explain what he meant he replied that he did not want to do in front of the female claimants. Later on he would testify that since coming to Canada and finding work here, he feels like a man again.

[26]     The principal claimant was rather emotional while he was giving this testimony, however, he would not elaborate on his experience during detention. He testified that in 2013 he was assessed by a [XXX], who recommended that he join a support group and that he could benefit from [XXX].6 In fact, the principal claimant was found to have a score of [XXX].7 The principal claimant testified that he did not follow up on these treatment recommendations largely because of financial difficulty. Nonetheless, he testified that if returned to Hungary he would likely break down again.

[27]     While the panel is cautious of medical [XXX] reports that state that the only way that claimants can recover from their [XXX] and other health issues is for them to remain in Canada, it found that the principal claimant presented his testimony, which centred mainly on these two incidents and an incident in a public park, in a straightforward manner and without any seeming attempt at subterfuge. For this reason, the panel accepts the finding of the [XXX] that the principal claimant has suffered or [XXX], which likely stems from his experiences while detained.

[28]     Further, based on the principal claimant’s demeanour while testifying about the second detention, the panel accepts that he was mistreated as he alleged. The documentary evidence indicates that Roma persons are often mistreated while they are in custody.8 Given these statements in the documentary evidence, the panel’s findings respecting his perceived Roma identity as well as the principal claimant’s testimony respecting the mistreatment he received at the hands of the police, the panel finds that, if returned to Hungary, there is a serious possibility that the police would continue to arrest and harass the principal claimant. Further, the panel finds that such continued harassment is treatment that would amount to persecution.

State Protection

[29]     As the police are the agents of persecution, the panel finds that it is not likely that state protection would be available to the principal claimant. For these reasons, the panel finds that he is a Convention refugee.

The Minor Claimant

[30]     On the behalf of the minor claimant it was advanced by both the adult claimants and their counsel that he would be persecuted if he were to return to Hungary. They posited that the minor claimant would be denied adequate schooling and that he would suffer the same discriminatory treatment that all Roma face in Hungary. Segregated schooling for Roma children is well documented.9 However, this is not a situation that the now [XXX] years old minor claimant has ever faced, and there was little persuasive evidence before the panel that the minor claimant who has had the benefit of being educated in the Ontario school system will likely face segregated schooling if returned to Hungary.

[31]     It was also argued that the minor claimant was not sufficiently proficient in the Hungarian language to allow him to attend a Hungarian school. The panel is not persuaded by this argument because there was no independent evidence of the minor claimant’s proficiency in the Hungarian language put before it that could allow the panel to make such a conclusion. What is evident is that he is reliant on his parents for support. The panel has already found that the principal claimant is a Convention refugee and by virtue of family membership and his dependency on the principal claimant, the panel finds that the minor claimant is also a Convention refugee.

[XXX]

[32]     [XXX] is the wife’s mother. She claims to have experienced lifelong discrimination and harassment in Hungary. She relies on the principal claimant’s narrative, which states that she was with the wife on [XXX] 2010 when Guardists attacked them. Unlike the wife, no photographs were tendered to support this claim. The panel has already found that there was insufficient credible evidence before it to allow it to find that Guardists attacked the wife on [XXX] 2010 and for the same reasons it is unable to find that [XXX] was also attacked on that date.

[33]     In so far as [XXX] relies on the claims of the principal claimant, the panel’s adverse credibility findings respecting these claims also apply to her. The panel is aware that, as a Roma person in Hungary and as indicated in the documentary evidence, [XXX] likely faced many acts of discrimination during her lifetime. Nonetheless, she has not put forward sufficient credible and trustworthy evidence to allow the panel to conclude that the acts of discrimination had risen to the level of persecution. For this reason the panel finds that she has not made out her claim to be a Convention refugee.

Family Membership

[34]     Notwithstanding, its findings respecting the wife, and [XXX] the panel considered whether there is a serious possibility that they would face persecution as family members of the principal claimant. It has concluded that, on a balance of probabilities, they are likely to do so because of the targeting of the principal claimant by the police in their neighbourhood. Accordingly, the panel finds that the wife, the minor claimant, and [XXX] are Convention refugees.

CONCLUSION

[35]     [XXX] claimed protection in Canada pursuant to sections 96 and 97(1) of the IRPA on the basis of their Roma ethnicity. Having considered their claims, the Refugee Protection Division finds that they are Convention refugees.

[36]     Pursuant to section 96 of the IRPA, their claims are accepted.

(signed)           H. Ross

July 21, 2020

1 The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim forms (BOC).
3 Exhibit 15, p. 55.
4 Exhibit 15, p. 61.
5 Exhibit 11.
6 Exhibit 12.
7 Ibid.
8 Exhibit 6, National Documentation Package (NDP) for Hungary, version 31 March 2020, Item 2.1.
9 Ibid.

Categories
All Countries Lebanon

2020 RLLR 47

Citation: 2020 RLLR 47
Tribunal: Refugee Protection Division
Date of Decision: March 10, 2020
Panel: M. Dookun
Counsel for the Claimant(s): Amro Hayek
Country: Lebanon
RPD Number: TB9-25948
Associated RPD Numbers: TB9-25981, TB9-26023
ATIP Number: A-2021-00655
ATIP Pages: 000115-000118


DECISION

[1]       MEMBER: Based on the information that I have in front of me folks, you Sir, are a [XXX] male. You’re a Stateless Palestinian with a Lebanese travel document. Your wife is a [XXX] female. She’s also a Stateless Palestinian with this-, but she has an Egyptian travel document and the minor claimant is a [XXX]-male and he is also a Stateless Palestinian and he also, like you Sir, has a Lebanese travel document. You are all seeking refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. You Ma’am, served as the designated representative for the minor claimant. I’ll go slower Mr. Interpreter, it looks like you’re having trouble hearing me. I can’t hear you but it looks like you’re having trouble so I’ll go slower.

[2]       Now, the specific details of your claims are set out in your Basis of Claim form, Sir. If I were to simplify what is already in your Basis of Claim form, I would say Sir, that you and the minor claimant fear persecution in Lebanon based on your nationality as Palestinians. You Sir, also fear harm at the hands of Hizballah and I’m going to spell that for the record because this is going to be transcribed. H-I-Z-B-A-L­ L-A-H, because they threatened you in Lebanon in 2011. You feared that they would harm you and harm the minor child out of revenge in-, in order to hurt you. Your wife fears that she-, number one, she would not be allowed to enter Egypt and if she did, then she would face difficulties in Egypt due to her ethnicity as Palestinian as well as other reasons. So, the Panel determines folks, that you are all Convention refugees pursuant to Section 96 of the Immigration and Refugee Protection Act.

[3]       Now, with regard to your identities, you established all of your identities by way of these certified true copies of your travel documents that I have in Exhibit 1 and you also provided birth certificates for me in Exhibit 5, so I have no concerns with regard to your personal identities.

[4]       Now, with regard to credibility, Ma’am, you-, you didn’t always testify in a straightforward manner. The Panel finds that you did exaggerate your testimony a little bit, especially when, regarding the difficulties in renewing your Egyptian travel document, you described an example of your father getting a number for the que at-, at 3am and that by the time you arrived at 9 am, you weren’t seen because that number had passed. That’s not-, the Panel does not see that as mistreatment per say. If a system is in place where one takes a number and waits for that number to be called and one is not there when the number is called, it’ s not unreasonable that an organization would not take you after that point. It happens even here in Canada at the passport office so, I didn’t-, I-, I felt that you did exaggerate a little bit.

[5]       So, I switched with you and I had your husband testify instead and I find Sir, that you did testify in a very straightforward manner. For example, when you were asked if you had any problems in Lebanon before 2011, you very directly, well, initially, you very directly answered no, you did not have any problems. You did not try to embellish or exaggerate your testimony at that point, which the Panel very much appreciated. Now, e-, even though it seemed later that you changed your testimony to indicate that you did experience problems in Lebanon, the Panel does not draw a negative inference and I’ll tell you why. The first time I asked you, it was suggested that you were being asked whether you had problems with Hizballah before 2011 and you said directly, no. The que-, the second time I asked you, the question was very specific and I said, did you have problems in Lebanon because of your Palestinian nationality. Y-, that’s when you said yes, you did have problems but then you explained that the problems that you experienced as a Palestinian in Lebanon, those problems were so common that you-, you got used to it. You tolerated it, so you didn’t really consider it to be a problem. It was life for you as a Palestinian in Lebanon so I don’t draw a negative inference with regard to the-, the slight change in what might appear to be the slight change in testimony.

[6]       When I asked you whether you-, what the fear was that you had for the minor claimant, you said that you only fear Hizballah and you didn’t mention a fear of persecution by society because of the-, the child’s Palestinian identity. Again, the Panel appreciates that you did not embellish or exaggerate your fear for the minor claimant. So, taking both testimonies into account, the Panel finds that there were no serious contradictions or inconsistencies contained within your testimonies and so the Panel has no serious reason to doubt that your affirmed testimony this afternoon, even though at times exaggerated, for the most part was truthful.

[7]       Now, with regard to the-, the country conditions, I’ll start with Lebanon because that’s the most straightforward for the Panel. The documentary evidence that I have in Exhibit 3 and counsel’s package in Exhibit 5, regarding the situation for Stateless Palestinians in Lebanon. It’ s very clear, it’ s very-, the-, the documentary evidence is very voluminous that Stateless Palestinians face widespread violence, harassment and discrimination that amounts to persecution in Lebanon. Aside from the problems that you’re facing with the Hizballah supporters, even if I don’t take that-, those problems into account, just being a Palestinian in Lebanon is enough Sir, that you and the child would face serious problems. When we combine that with the problems that-, and the threats that you have received from Hizballah supporters, it only increases your risk in Lebanon.

[8]       Now, with regard to Egypt, with counsel-, counsel’s-, with counsel’s guidance, we focused on Exhibit 3, Item 3.4 and that talks about the fact that there are hundreds if not thousands of cases in which Palestinian­ Palestinians with Egyptian travel documents are denied re-entry for various reasons. Palestinians may face detention at the border in Egypt, imprisonment upon arrival or deportation. So that affirms or confirms the female claimant’s fear that she would not even be able to enter Egypt. Now, if she were able to enter Egypt, this same document goes onto say that Palestinians in Egypt are denied rights to secure residency, employment, property and they are considered foreigners in Egypt no matter how long they have lived there. Egyptian laws do not allow foreigners which Palestinians are considered, to exceed 10% of employees in the labour force, so this limits the employment opportunities for Palestinians and then to add to this, as the female claimant indicated, she’s never been to Egypt. She has no friends, she has no family, she has no support in that country and tho-, therefore she would-, she would be and feel even more out of place than Palestinians who have been residing in Egypt.

[9]       So, to conclude, the Panel finds on a balance of probabilities, based on the documentary evidence that the principal claimant and the minor claimant have a well-founded fear of persecution in Lebanon based on their ethnicities. And the female claimant has a well-founded fear of persecution in Egypt, based on her ethnicity. I should just mention for the record, although it’ s-, it’ s-, it’s implied or it’s well known, I should mention that even though they were born, they were all born in Saudi Arabia, they clearly have no rights to remain or return to Saudi Arabia. So, the Panel finds that the claimants are all Convention refugees pursuant to Section 96 of the Immigration and Refugee Protection Act. The Refugee Protection Division accepts these claims.

———- REASONS CONCLUDED ———-

Categories
All Countries Sri Lanka

2020 RLLR 43

Citation: 2020 RLLR 43
Tribunal: Refugee Protection Division
Date of Decision: October 30, 2020
Panel: C. Peterdy
Counsel for the Claimant(s): Ian Wong
Country: Sri Lanka
RPD Number: TB9-09362
ATIP Number: A-2021-00655
ATIP Pages: 000093-000099


DECISION

[1]       MEMBER: This is the decision in the claim for refugee protection of [XXX]. The file number is TB0-09362. I have considered your oral testimony and the other evidence in this case and I’m ready to render my decision orally.

[2]       (Indiscernible) claiming to be a citizen of Sri Lanka and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I find that you are a convention refugee on the grounds of your ethnicity, religion, and an imputed political opinion for the following reasons:

[4]       Your allegations are made out in your Basis of Claim Form which is found at Exhibit 2. In summary, you allege that you are a citizen of Sri Lanka and that you fear harm at the hands of the Sri Lankan government, army, police, and security forces, as well as ballistic extremist as a Tamil-speaking Muslim.

[5]       You allege that you and your family historically faced discrimination and harassment as Muslims. You allege that after the Candy Riots of [XXX] 2018, you and your employee were attacked by Sinhalese men and called racial slurs. Sinhalese people also boycotted your business.

[6]       You further allege that land you had purchased in 2012 was supposedly taken by the military in 2013. You reached out to government officials and even held a demonstration in 2018 to have the land returned.

[7]       A lawsuit was filed against the army in 2017 by the man from whom you purchased the land. As a result of your efforts, you faced harassment and threats. In [XXX] 2019, you were detained by the Terrorist Investigation Department, or TID, for one day where you were questioned about your work, your trips abroad and who funded these trips. The TID alleged they had information about your anti-government and anti-Buddhist activities and accused you of turning innocent people against the government. You were beaten by the TID and released with a strict warning not to engage in anti-government activities.

[8]       The man who sold you the land and who had purchased — sorry — who had sold you the land and who had launched the court case against the Military received threatening phone calls and went missing in [XXX] 2019. You also received threatening phone calls in [XXX] 2019. It was then that you determined it was no longer safe for you to remain in Sri Lanka and you fled to Canada.

[9]       Since fleeing, the army has returned to your home and gone to your Mosque and your wife’s workplace to inquire about your whereabouts. Your wife was informed that on return to Sri Lanka you are to present yourself to the Ampara Police Station concerning an investigation into your anti-government activities and a discovery of explosives on your land.

[10]     Your identity as National of Sri Lanka has been established on a balance of probabilities by your testimony and the identification documents found in Exhibit 1 and 6, including your passport and National ID card.

[11]     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 in your Basis of Claim Form. Your testimony was straightforward and consistent with your Basis of Claim Form. You did not embellish your testimony and there were no significant omissions or inconsistencies. Your testimony was spontaneous and included the detail one would expect from someone telling their own story.

[12]     You also provided several documents to corroborate your claim and the risks alleged. These include documents corroborating your work and involvement in the business community. At Exhibit 6, you have your business registration, Ampara District Chamber of Commerce and Industry ID, as well as certificates of membership from 2016 and 2018, Certificate of Membership from the International Association of Lions Club. You’ve provided documents confirming the land you purchased in Exhibit 6 and 8. There’s the land permit showing the grant of four acres to [XXX] (ph) as well as his affidavit confirming transfer of this land to you after receipt of [XXX], and a copy of the selling agreement and a request to have the land permit transferred to your name.

[13]     You provided the court order from [XXX] 2017 corroborating your allegation that a case was filed by [XXX] and dismissed by the court in (indiscernible) because the land falls under the Ampara Court’s jurisdiction.

[14]     There’s a letter from the lawyer who represented you and confirms that you and [XXX] approached him for help. He states that the re-opening of the case in Ampara had to be suspended because [XXX] went missing and you were being harassed and ultimately fled to Canada.

[15]     There’s a letter from your Mosque, your wife, your father, a friend, and an employee who are aware of what has happened to you in Sri Lanka. [XXX] (ph) (indiscernible) states that the TID has visited the Mosque asking about you. Your wife states that since you fled, the TID has gone to your home in [XXX] 2019 and twice in [XXX] 2019 after the Easter bombings to ask about you and to search the home. [XXX] (ph) confirms that he was with you in [XXX] 2018 when you were attacked by Sinhalese men and called a racial slur.

[16]     Based on your testimony as well as the documents provided to corroborate your claim, I find on a balance of probabilities that you have established that you were harassed and targeted because you were a Muslim. I further find that you have established on a balance of probabilities that you purchased land that was forcibly taken by the military and that after trying various avenues of recourse to have the land returned to you, you were arrested, detained, and questioned by the TID.

[17]     I accept that the TID believes that you are opposed to the Government and have engaged in in anti-Sinhalese and anti-Buddhist activities and as a result, you face a serious possibility of persecution in Sri Lanka. Furthermore, I find that you have established subjective fear of harm.

[18]     The objective evidence in both the National Documentation Package found in Exhibit 3 and counsel’s Country Conditions Package found at Exhibit 7, further corroborates what you allege and the risk you face as a Muslim in Sri Lanka.

[19]     With respect to the land issue, Item 10.4 of the National Documentation Package is particularly instructive. It’s a Human Rights Watch Report on Land Occupation from October 2018. That corroborates the issue you had with your land being taken by the military as well as the challenges in having the land returned.

[20]     Security forces have occupied new land even after the end of the war to expand their role and presence in civilian activities including infrastructure development, tourism and administration. It contains examples of military going into villages, forcibly taking land and erecting military camps in the East and in Ampara, which is the district where you lived.

[21]     The report raises concerns that “the Sinhalese-dominated state is seeking to diminish the rights of minorities through continued militarization and territorial aggrandizement.”

[22]     There are many challenges getting the land back. The government’s approach seems at best ad hoc, and decisions are too often left to the discretion of the security forces, without a serious effort to systematically map and review military use of land as well as the status of release and reparations initiatives.

[23]     The report also talks about specific incidents where people have filed complaints in the court for their land and have been harassed forcing them to withdraw these complaints. Most cases that have been filed are either still ongoing or did not result in the release of the lands.

[24]     There are also numerous documents in both the National Documentation Package and counsel’s Country Conditions Package that discuss the rise in anti-Muslim sentiment that has occurred in Sri Lanka over the past six or seven years. There’s been violent attacks, threats, and harassments that came to a head in 2018 after the Candy Riots and again, in 2019 after the Easter bombings.

[25]     The articles in Exhibit 7 as well as Items 1.9, 2.1, 2.2, 2.4, 12.1, 12.5, 12.6, 12.8, and 12.9 in Exhibit 3 all discuss the myriad of attacks against Muslims in retaliation for the Easter bombings.

[26]     Exhibit 7, there’s an article that talks about “angry mobs” going house to house to attack and threaten Muslims. On article — another article in Exhibit 7 states that the Human Rights Watch is urging the government to stop mob violence, threats, and discrimination against Muslims. Authorities are arbitrarily arresting and detaining hundreds under counterterrorism and emergency laws, and there had been a lot of arrests under the Prevention of Terrorism Act, which allows long-term detention without charge or trial.

[27]     Human Rights Watch spoke to lawyers who had a list of 105 detainees that summarized the justification for arrest by authorities and included such reasons such as keeping money at home, talking in a playground, a post that’s shared on social media five years back, having English lecturer documents, Arabic songs on their laptop, or travelling to Jaffna for a job. Or simply no reason. Abuses by authorities had long been prevalent and unaddressed by the government.

[28]     And Government leaders themselves appeared to associate themselves with Buddhist Nationalist elements. On May 23rd, 2019, then President Sirisena pardoned the leader of (indiscernible) of the Buddhist-extremist group known for targeting Muslims.

[29]     In Item 12.8 which was also included in Exhibit 7, states that months after the Easter bombings, the situation is still dangerous, even though attacks were committed by a fringe group of Muslims. Muslims in general are facing significant backlash.

[30]     The government has sat idly by or even egged on violence and political divisions in Government have constructed efforts to reform the dysfunctional police and intelligence services.

[31]     Since the election of Gotabaya Rajapaksa as President in 2019, and Mahinder (ph) Rajapaksa as Prime Minister in 2020, the security situation and conditions in Sri Lanka have only deteriorated. Concerns of any gains made under the previous government towards improving the human rights situation, would be reversed are reflected both counsel’s Country Conditions Package and the National Documentation Package.

[32]     Item 2.13 noted that the concern that the government will roll back any progress made under the previous government towards improving the human rights situation and that this government will renege on promises made under the former government. Item 4.13 of the National Document Package states that since Rajapaksa seeking power there is a trend towards authoritarianism and militarization. There has been a crack down on human rights with no regard for minorities. Rajapaksa is dismissive of what he calls divisive political demands and frames them as a result of manipulation by Tamil politicians and western aligned interests.

[33]     Item 13.1 states that human rights have deteriorated significantly since Rajapaksa was elected president. Both Gotabaya and Mahinder Rajapaksa have espoused anti-Muslim news publicly.  An article in Exhibit 7 sates that Gotabaya campaigned on the province to protect Sri Lanka from the Muslim threat, and after the election, he appointed an all male cabinet with no Tamil or Muslim representatives.

[34]     Another article from 2020 states that Gotabaya and Mahinder Rajapaksa campaigned on a nationalist platform projecting your family as protectors of the Sinhalese Buddhist population. There has always been anti-Tamilism (ph) in the country, but recently there has been arise in hatred against the Muslim minority too. Mahinder Rajapaksa’s message has been that Sri Lanka belongs toto the Sinhalese and that Tamils are Muslims are their permanent threats.

[35]     In 2020, a year after the Easter bombings, the situation from has not improved, and in fact, has worsened due to the global pandemic of COVID 19. Item 12.5, which was also included in exhibit 7, states that concerns were raised in April 2020 about recent arrests of well-known Muslims, biased government actions and rising ant-Muslim hate speech. COVID has worsened the situation, where there has been calls to boycott Muslim business and accusations that Muslims are deliberately spreading COVID 19. Senior government figures have made public remarks associating the Muslim community with COVID 19 infections.

[36]     Another article states that the government’s frequent incidents of demonization, vilification and state guarding of Sri Lanka’s Muslim population are a cause of great concern. The government has mandated cremation for those who have died due to COVID 19 and the body of the first Muslim death due to COVID 19 was forceable cremated against the wishes of his family and against urging of the Muslim community and religious leaders, a policy that was seen as discriminatory. This was also reflected in Item 12.9, which again noted the discriminatory law mandating cremation for those who die from COVID and for accusing the Muslim community being at high risk for spreading the disease. In the past year [XXX] have been arbitrarily arrested and accused critiquing Buddhism and the government.

[37]     Furthermore, the objective documents confirm the risk he would face on return to Sri Lanka as a Muslim who is under investigation by the TID and has been accused of engaging in anti-government and anti­ Buddhist activities. Item 1.9 of the National Documentation Package states that there is a watch list which includes names of those individuals of the Sri Lankan Security Services considered to be of interest, including for suspected separatists or criminal activities.

[38]     Item 4.11 states that returning failed asylum seekers would likely be questioned at the airport by immigration officials and may be passed to the criminal investigation department. But they do security checks at the airport where they look into a police database from where the returnee is from, and it is not unusual to have further checks at home and to be monitored.

[39]     Item 14.6 states that returnees are checked against the watch list maintained by police as well as one maintained by State Intelligent Services. Returnees are questioned on arrivai by the Department of Immigration and Emigration, State Intelligence Services and Criminal Investigation Department for a few hours to several days. They may also be visited by police at their residence at a later time after the interrogation. Returnees from western countries in particular are placed under surveillance to determine whether they have ties to the LTTE.

[40]     Therefore, based on this documentary evidence, I find that the claimant has an objectively well-founded fear of persecution.

[41]     I find that state protection would not be available to you were you to seek it in Sri Lanka. Where agents of the state themselves are sources of persecution, the presumption of state protection may be rebutted without exhausting ail avenues of recourse in the country. In this case, the agents of persecution are the state; the police, army and intelligence community. Your evidence is that since fleeing, the TID has informed your wife that you are under investigation for engaging in anti-government activities. For that reason, it would not be reasonable to expect you to approach the state for protection.

[42]     The National Documentation Package also contains information about the Human Rights Commission in Sri Lanka. Item 1.9 states that the commission can only make recommendations to the Attorney General, but there is evidence that the state is not investigating a major of complaints filed. This report further states that Sri Lanka Jacks independent and efficient mechanisms to address complains to torture.

[43]     Item 2.2 also states that limited steps are taken to hold perpetrators of serious human right violations accountable. In Item 2.3, it is noted that police and security forces are known to engage in abusive practices, including extra judicial executions, forced disappearances, custodial rape, and torture.

[44]     So in light of the objective country documentation, as well as your persona) experience, I find that the claimant has rebutted the presumption of state protection. And based on this information again, I find that there would not be adequate state protection available to you in Sri Lanka.

[45]     I have also considered whether a viable internal fight alternative exists for you, however, given that the agent of persecution is the state and you have been targeted both the army and TID, I find that you face a serious possibility of persecution throughout Sri Lanka. Item 1.9 states that Sri Lankan forces maintain effective control throughout the country and individuals are unlikely to relocate internally with anonymity. You are known to security officials who believe you have engaged in anti-government activities. Security officials have repeatedly gone to your home looking for you and have instructed your wife to have you present yourself to the Ampara police station (indiscernible). Therefore, I find there is no viable IFA, or internal flight alternative, for you in Sri Lanka.

[46]     Based on the totality of the evidence, I find that you have established on a balance of probabilities that there is a serious possibility of persecution if you were to return to Sri Lanka. Therefore, I find that you are a convention refugee and your claim is therefore accepted.

———- REASONS CONCLUDED ———-

Categories
All Countries Romania

2020 RLLR 41

Citation: 2020 RLLR 41
Tribunal: Refugee Protection Division
Date of Decision: July 7, 2020
Panel: G. Griffith
Counsel for the Claimant(s): Peter G Ivanyi
Country: Romania
RPD Number: TB9-02978
Associated RPD Number: TB9-03059, TB9-03070
ATIP Number: A-2021-00655
ATIP Pages: 000076-000084


REASONS FOR DECISION

[1]       [XXX], the principal claimant, his common-law spouse, [XXX], the female claimant, and their son, [XXX], the minor, claim refugee protection in Canada, pursuant to s. 96 and s.97 (1) of the Immigration and Refugee Protection Act (IRPA)i.

[2]       The minor son was born in the USA and is a citizen of the USA.

[3]       [XXX] was appointed Designated Representative for the minor son.

INTRODUCTION

[4]       The claimants claim to be ethnic “Roma”, and the adult claimants, who were born in Romania, testify that, in Romania, they have been victims of extreme discrimination, because of their ethnicity. They allege that, in a number of cases of discrimination and confrontation by Romanians, the police in Romania have not assisted, or have been complicit.

[5]       The adult claimants left Romania in [XXX] and, after a stay in the USA, where an asylum claim was made, they travelled to Canada on [XXX] 2018.

[6]       The principal claimant lived for brief periods in Sweden and Belgium in the years 2003 and 2006, respectively.

[7]       The Minister’s Representative provided submissions (written only) on the issue of the credibility of the overall testimony, as well as with specific concerns and request for clarification on the nature of criminal charges issued to the principal claimant in the USA, and clarification on the claimants’ method of entering Canada.

[8]       No evidence was adduced in the claim of the US-born minor claimant.

[9]       The principal claimant is also the father of three children who, at the time of the hearing, were listed as being resident in Romania.

ALLEGATIONS:

[10]     A summary of the key elements of the testimony is, as follows.

[11]     The principal claimant gave oral testimony in which he states the following, as in the written narrative of the claimants’ Basis of Claim (BOC)ii Form.

[12]     He states that in Romania, starting at an early age, as an ethnic Roma, he, personally, experienced extreme discrimination and persecution.

[13]     He testifies that he and his spouse are identified as “Roma” in Romania, as that, generally, a Roma is identified by a combination of skin color, facial hair, manner of dress, customs, language, and places of residence, and that they endure certain impositions such as that a “Roma” must register with the police if there is any attempt at residential relocation.

[14]     The principal claimant testifies that he experienced those conditions, starting as a young child, and that, at school, he experienced hard times, being called names such as “dirty gypsy” or “crow”. He testifies that the teachers at school had no sympathy for him, or for other Roma students from his community.

[15]     The principal claimant testifies that, as a result of the regular harassment at school, he sought employment at an early age, but that in searching for employment, also, he experienced difficulties and discrimination. He testifies that he was regularly refused employment, with only the explanation that he was Roma.

[16]     The principal claimant testifies further, that, as an adult, also, he experienced direct physical and verbal abuse by Romanian persons, and even by the police in Romania. He testifies that on three occasions when he sought help of the police in Romania, he was rebuffed and insulted.

[17]     The principal claimant testifies to the following specific incidents that he faced as an adult., such as happened in Romania at a market, in the year 2008. On that occasion, he states, he became involved in a physical and verbal altercation at a grocery store with employees who perceived that his cousin, his wife and himself were there to steal.

[18]     The principal claimant testifies that they were followed around, and, at the cashier, an employee pulled the hair of his cousin. He testifies that he intervened, to also protect his wife, and he was punched in the face, and they were called “crows”. As well, when they managed to exit the store, they noticed on that there were other persons on the outside who were gathering to physically abuse them.

[19]     The principal claimant testifies that, in that same year, 2008, while on his way to work in one of the villages, he was beaten by racist Romanians. Also, in that same year, he and his wife were kicked out of a restaurant because Romanians in the building felt uncomfortable. And, when he attempted to make a report to the police, it was not accepted.

[20]     The principal claimant states, further, that in the year 2010, while driving with a friend, they were pulled over by the police, and that even after offering a bribe, they were beaten by the police.

[21]     The principal claimant testifies further, as contained in his narrativeiii, to incidents that occurred in the years 2011, 2012, 2013, 2014, and 2015, where the underlying facts are alleged to be incidents of discrimination, and physical altercations with Romanians, in which, also, he states, the police in Romania did not offer any assistance, following complaints, and that the police, themselves, assisted in the discrimination.

[22]     The principal claimant testifies that he left Romania in [XXX] 2016, and, after travelling with his brother [XXX] through [XXX] he arrived in the USA, where he asked for asylum.

[23]     The principal claimant testifies that he was arrested for being illegally in the USA, and, later, he was released, with an ankle monitor device.

[24]     The principal claimant testifies that, on [XXX] 2018, he and the spouse travelled to Canada in order to make a refugee claim, and they did so, travelling by boat.

DETERMINATION

[25]     For reasons below, I find that the claimants are Convention refugees, as, in my opinion, their expressed subjective fear has an objective basis.iv

ANALYSIS

[26]     The claimants’ national identity is established on the basis of a certified true copy of documentsv submitted by Immigration Canada, and, as well, as established in their package of personal documentsvi which include a copy of the national Identity card of Romania, in the name of the adult claimants.

Credibility/plausibility

[27]     I agree with counsel’s submissions, namely that, overall, the evidence is credible, and that it presents information of a serious violation of the claimants’ human rights in Romania.

[28]     I am satisfied that the principal claimant presented his testimony in a straightforward and consistent manner, and I find that he clarified, satisfactorily, the concerns raised by the Ministervii, in the written document.

[29]     I find that the principal claimant has adequately clarified that a charge against him in the USA was the result of an accusation of a [XXX] and that, in the end, it was [XXX] by a US Judge.

[30]     I note that, also, as clarification, the principal claimant has explainedviii that, in [XXX] by the police on a [XXX] on the street. Similarly, he explained, in [XXX], the principal claimant was [XXX] for the same offence of [XXX] on the street. He returned to Romania in 2007, following which he travelled around Europe job hunting, but eventually resorting to [XXX].

[31]     I find that the principal claimant was straightforward in his testimony in this area, and, with particular respect to the Minister’s concern on the charge against the principal claimant in the USA, the testimony is accepted, and not fatal to the claims.

[32]     As well, I find that the details of the manner in which the adult claimants entered Canada [XXX] in a process that, seemingly was contrary to CBSA requirements, is not a bar to the making of a refugee claim, and given the clarification provided.

Objective Basis

[33]     I find that the claims, as presented by the adult claimants, are supported by the guidelines in the Hand Bookix, and by the case-lawx, where it is held that a number of discriminatory and harassing acts may cumulatively amount to persecution.

[34]     I find that, in addition to the claimants’ undisputed testimony, I can rely on the documentary evidencexi, some of which forms part of Counsel’s submissions.

[35]     In his writtenxii and oral submissions, Counsel has provided a helpful review of the country condition documents and case law that relate to Romania, and as found in his documentary packagexiii.

[36]     In my own review, also, I find that a relevant guide to my conclusions is found in excerpts of the Response to Information Request, ROU105285.Exiv, as follows.

[37]     In that documentxv, the following is said, in part.

” … The World Bank report indicates that Roma in Romania are “poor, vulnerable and socially excluded” (28 Feb. 2014, 5). A report produced by the European Union Agency for Fundamental Rights (FRA) and the United Nations Development Program (UNDP) that” draws on the results of the UNDP/World Bank /European Commission regional Roma 2011 survey [3]”, reports that approximately 81 percent of Roma are at risk of poverty compared to approximately 41 percent of non-Roma (EU and UN 2012, 24.xvi

Under the heading Treatment of Roma (Treatment by Society), it is stated that, “the US Department of State’s Country Reports on Human Rights Practices for 2014 indicates that roma face systemic discrimination by society, which affects them in areas of education, housing, health and employment (US 25 June 2015)… Country Reports 2014 notes that stereotypes and discriminatory language regarding Roma was widespread (US 25 June 2015,33)… According to a report the Open Society Foundation (OSF)… indicates that “pervasive racism and racist violence continue to distance many Roma families and groups from the greater society (OSF 10 Sept 2013yvii.

[38]     I find to be relevant, also, a documentxviii found in Counsel’s package where the opening sentence reads, ” … In a ruling dealing with what it called “institutionalized racism” directed against Roma in Romania, the European Court of Human Rights has for the first time explicitly made use of the term “ethnic profiling” with regard to police action it found to be discriminatory”xix.

Failure to claim elsewhere- [XXX]

[39]     I have accepted as reasonable, the claimant’s testimony and counsel’s submissions on the issue that the claimant failed to seek asylum in [XXX], which he visited in the year 2003 and 2006, respectively. Counsel points out that, and as found in his documentary package, an IRB documentxx, notwithstanding that there is not likely a bar against claiming refugee protection in these countries by citizens of these countries, the provisions of the Asnar Protocolxxi virtually prevents the filing of refugee claims from citizen of European States, as there is an almost zero recognition of claims among the European States.

[40]     Counsel points out that, according to some documentary evidencexxii, procedurally, the governments of these countries behave differently in the matter of asylum claims, and that some countries reject applications from countries considered to be safe countries.

[41]     I have determined, also, that the claimants’ decision to leave the USA to seek protection in Canada is not unreasonable, The principal claimant testifies that he was informed that Canada could provide them with protection, while, at the same time, during his wait in the USA he faced the difficulty of surviving on little money [XXX] while his spouse, the female claimant, [XXX] for money and food.

[42]     For these reasons and after careful consideration of the evidence and submissions, I find that the adult claimants [XXX], the principal claimant, and his common-law spouse, [XXX], the female claimant have established valid claims and are Convention refugees.

[43]     I accept the claims of [XXX].

[44]     I reject the claim of the son, [XXX], the minor claimant, a citizen of the USA. In his claim, no evidence has been adduced in support, pursuant to s.96 or s. 97 of IRPA.

(signed)           G. Griffith

July 7, 2020

i Immigration and Refugee Protection Act, S.C. 2001, c.27.
ii Exhibit 2.
iii Ibid.
iv Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.).
v Exhibit 1.
vi Exhibit 6
vii Exhibit
viii Exbibit 6
ix Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, under the I 951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, January 1988, paras 54-55.
x Madelat v. Canada (Minister of Employment and Immigration), [1991] No. 49 (F.C.A.)
xi Exhibit 3, Index to National Documentary Package for Romania
xii Exhibit 10
xiii Exhibit 3
xiv Exhibit 3, Index to NDP for Romania, Response to Information Request (RIR), ROUI05285.E: Romania: Situation of Roma, including treatment by society and government authorities; state protection and support services available to Roma (2011-2015), Research Directorate, Immigration and Refugee Board of Canada, Ottawa, 9 October 2015.
xv Ibid.
xvi Ibid.
xvii Ibid.
xviii Exhibit 10: Case Watch: European Court Finds Ethnic Profiling by the Police Discriminatory, Zsolt Bobis, Open Society Justice Initiative, April 23, 2019
xix Ibid.
xx Exhibit 12, European Union: Application of the Protocol on Asylum for Nationals of Member States of the European Union (2013- June 2015). Refworld (UNHCR), Canada: Immigration and Refugee Board of Canada, 9 July 2015
xxi ibid
xxii Ibid.