Tag: Race/Ethnicity/Nationality

2019 RLLR 217

Citation: 2019 RLLR 217
Tribunal: Refugee Protection Division
Date of Decision: May 8, 2019
Panel: R. Jackson
Counsel for the Claimant(s): Sandra M. Gonzalez Ponce, Christian Julien
Country: Angola
RPD Number: TB8-07871
Associated RPD Number(s): TB8-07913, TB7-12855
ATIP Number: A-2020-00859
ATIP Pages: 002821-002831

REASONS FOR DECISION

[1] This is the decision in the claim of XXXX XXXX XXXX (“the principal claimant”), XXXX XXXX XXXX XXXX (“the associated claimant”) and XXXX XXXX XXXX XXXX (“the minor claimant”), citizens of Angola, who are claiming refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act.¹

[2] The associated claimant was appointed the designated representative for the minor claimant, her daughter.

[3] These claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules.²

ALLEGATIONS

[4] The allegations of the claimants are those contained in their Basis of Claim (BOC) forms, amendments, and further explained in their oral testimony. In summary, they fear that the government will harm them due to the principal claimant’s political activism.

[5] The principal claimant alleges that he attended political protests in Angola and was part of a small group of people who would get together to express themselves through music or other means.

[6] One day after work, he went to his father’s store, and after a while some unidentified men came into the business and asked for the principal claimant. They attacked him and his father. He was left for dead, and his father did not survive. The principal claimant fears returning to Angola because these people may harm him. The associated and minor claimants base their claims on that of the principal claimant.

INTERLOCUTORY ISSUES

[7] The adult claimants were represented separately because their marriage has broken down and they are not living together.

[8] There were three sittings of the hearing of this claim. Different interpreters were used. The claimants expressed some dissatisfaction with the interpretation at the second sitting. The panel was able to address the points of interpretation which the claimants were not happy with; however, the testimony was not proceeding efficiently, and it was decided by the panel that it would be more efficient to proceed with a different interpreter. Both counsels were given the opportunity to express their concerns about the interpretation and to review the audio between the second and third sittings, if they wished to do so. No application was ultimately made with regards to disregarding the testimony that was given with the help of any of the interpreters.

DETERMINATION

[9] The panel finds that the principal claimant has a political opinion which opposes the Angolan government and, as he cannot safely express that opinion through public protest and wishes to do so, he is a Convention refugee.

[10] The panel finds that the associated and minor claimants are not Convention refugees or persons in need of protection.

ANALYSIS

[11] The claimants’ identities as nationals of Angola are adequately established by their testimony and the supporting documentation filed, including a certified copy of the principal claimant’s passport in Exhibit 1, as well as certified copies of the other claimants’ birth certificates. A copy of XXXX national identity card can also be found in Exhibit 1.

[12] The claimants testified that false Portuguese passports were used to travel to Canada, but that they are not citizens of Portugal.

[13] The determinative issues in this case are credibility and the principal claimant’s political opinion.

Credibility

Claimants have not established attack was based on political opinion

[14] The principal claimant established through his testimony and other documents on file that he was attacked in Angola. He also established that his father passed away.³ He was unable to establish with sufficient credible evidence that the attack was politically motivated.

[15] The principal claimant had some difficulty testifying and providing details about his activities with a group he called “Reading Books.” He testified that this is not the same group as is mentioned in some of the country conditions documents presented.⁴ Some members of the group noted in the country conditions documents have been arrested. For clarity, the panel will refer to the principal claimant’s group as his “political discussion group,” as he testified that this was an informal group for discussions on political matters. Some people would make music to express themselves and sometimes they would attend political protests.

[16] The principal claimant alleged that he had recruited some people to join the group, and he had met them at parties. When he was asked for an example of this, he said he had met someone (“FP”) at a party, but he could not remember the year. The panel asked what made the principal claimant think he could invite FP to the group, and the principal claimant gave a general reply, stating that when he’s talking to people they might discuss soccer and the conversation turns to politics and they will say their opinion. The panel asked if he could remember what it was that convinced him FP was trustworthy, and the principal claimant said no. The principal claimant had trouble explaining what he personally did as part of the political group, apart from attending some mass protests. When the panel attempted to get more information about his specific role, the answers were vague. A negative inference is taken as to the principal claimant’s credibility, and the panel finds that doubt has been cast upon how involved he really was in this political discussion group, and whether he in fact recruited new members.

[17] The principal claimant testified that no other members of the group were attacked as he was, or had problems that he knew of based on the group. When there were protests, police would use force to contain the crowd, but this was not limited to members of his group.

[18] The principal claimant presented a brief letter⁵ from a member of the political discussion group. The letter states that the principal claimant was in the group and was attacked as a consequence. No details are provided. The writer of the letter does not explain how he knows about the attack or how he knows that the principal claimant’s attack was related to the group. The panel did not have the opportunity to question the writer. The fact that the letter was accompanied by a copy of the identity card of the writer is positive, but it does not serve to establish that the attack was politically motivated. On its own, this letter is insufficient to establish a link between the political group and the principal claimant’s attack.

[19] Similarly, there is a letter from XXXX mother⁶on file. It is brief and states that the associated and minor claimants went to live with her in another part of Luanda because they were afraid after the attack on the principal claimant. The letter does not provide insight into who was behind the attack, and the panel was not given the opportunity to question the writer.

[20] A Canadian medical assessment⁷ was performed on the principal claimant, which confirms that he has an injured eye.

[21] The principal claimant testified about the attack, and he could not associate the men with any group, nor did he recognize them. He speculated they were government agents.

[22] The principal claimant’s testimony about being followed subsequent to the attack was inconsistent. He said that he went into hiding in an area called Bengo. He thought he was being followed, so he took a flash photograph of the people following him so he could show to people and see if they recognized them. When asked where the image is now, the principal claimant said he just meant he used his memory. The panel noted that this is a different answer and that one cannot “show” memories to people. The principal claimant said he could describe them. The panel asked him if he could still remember any of these people, and he said one was tall, very thin, with a mustache. The principal claimant alleges that no one recognized these people and thus he knew he was being followed. The panel finds the claimant’s testimony on this issue to be vague, evolving, and unconvincing. The panel does not find the principal claimant’s testimony credible regarding the people following him in Bengo.

[23] The principal claimant has not established with sufficient credible evidence that people were actually following him, and even if they were, that this had anything to do with the attack which took place in Luanda or his political activism.

[24] Considering all of the above, the panel finds that the claimants have established that the principal claimant was attacked. Who was behind the attack, has not been established with sufficient credible evidence.

Summary – Attack on principal claimant

[25] This claim is based on the principal claimant’s having been attacked by unknown individuals in his father’s store in Luanda. He alleges that he subsequently went into hiding in Bengo and there he believes there were other unknown men following him. At the hearing, he was unable to directly connect his political activities (attending protests and meeting with friends to discuss politics) to his attack. He said that the attackers must have been sent by the authorities because they asked for him by name and nothing was taken from the store. The panel finds that he is speculating, and it is insufficient to establish, on a balance of probabilities, that he was attacked for his political opinion.

[26] This conclusion is further supported by the fact that none of the other members of his political discussion group have had any similar problems or any other problems that could be attributed to being targeted by anyone because of their political views. The panel is aware of the evidence⁸ presented by the claimants which indicate that Angolan authorities do break up protests and have arrested some peaceful activists. The panel also considered the objective evidence cited in the following section of these reasons. The preponderance of the evidence does not support the allegation that Angolan state actors targeted persons with similar profiles to the principal claimant, as someone who attended protests as a member of the crowd and who occasionally discussed politics with others. Meetings and protests were broken up, but the panel finds there is insufficient evidence to establish that state actors generally went to people’s homes or places of work to attack them.

[27] Taking all of the above into consideration, the panel finds that the claimants have not established that the attack upon the principal claimant and his father was perpetrated by people with political motives. Their motives are unknown. Their identities and affiliations are unknown. As such, the panel cannot find that the claimants are Convention refugees or persons in need of protection based on this attack by unknown persons with unknown motivations.

Political Opinion – Principal Claimant

[28] The principal claimant testified about some protests he attended, and his political views regarding Angola. While the panel did take some negative inferences as to his credibility as noted above, he was able to express his political views at the hearing. He was also able to testify about attending protests in Luanda and the reactions of police during those protests. In that regard, the panel found him to be forthright and he testified with a sufficient level of detail. The panel accepts that he attended anti-government protests in Angola, and that he has a political opinion that opposes the ruling regime.

[29] The objective country documentation⁹ states that 2017 saw nearly five times the level of protest that was seen during the last election year, 2012. Dissidence was suppressed: protesters and journalists were often imprisoned. On August 12, 2017, demonstrations by groups not running for election were banned. Nevertheless, protests continued to grow, with thousands of people protesting throughout the country in June 2017 for free and fair elections, without notable incidents.¹⁰

[30] The constitution and law provide for the right of peaceful assembly, and the government increasingly respected this right.¹¹ Nonpartisan groups intending to criticize the government or government leaders, however, often encountered the presence of police who prevented them from holding the event. Usually authorities claimed the timing or venue requested was problematic or that the proper authorities had not received notification. Police were at times reported to have fired into the crowd during protests or used force to disperse them. The government at times arbitrarily restricted the activities of associations it considered subversive by refusing to grant permits for organized activities.¹² It was also reported to have dispersed grassroots anti-government gatherings with violence, subjecting participants and organizers to arrest.¹³

[31] On the other hand, authorities generally permitted opposition parties to organize and hold meetings. Individuals reported practicing self-censorship but generally were able to criticize government policies without fear of direct reprisal. Social media was widely used in the larger cities and provided an open forum for discussion.¹⁴

[32] The objective documentation, as well as the country documents presented by the claimants, indicate that sometimes the government of Angola openly represses its people’s ability to express their political opinions. It does not do so in a systematic way; individuals can have open discussions about their political views in person and on social media. Self-censorship occurs, however, and the preponderance of the objective documentation indicates that protesters are often arrested in Angola and peaceful, non-partisan gatherings intended to be critical of government are regularly disrupted by police. It is telling that the Freedom House report¹⁵ considers the fact that Angolans are increasingly willing to express their political opinions in private as a significant step forward.

[33] Having considered all of the above, the panel finds the principal claimant’s testimony about the protests he attended and the police reaction to protesters to be reflected in the documentary evidence and thus, objectively supported. The situation is improving, but the ability to protest without fear of arrest or violence from police is restricted.

[34] As such, the panel accepts that the principal claimant has a subjective fear of returning to Angola, based on his political opinion. He would be unable to protest peacefully in that country without fear of arrest or violence by police.

[35] With regards to state protection, the panel notes that the state is the agent of persecution. The government is in control of its territory. Security forces in Angola enjoy impunity for violent acts committed against detainees, activists, and others.¹⁶ There is no effective protection against unjustified imprisonment, lengthy pretrial detention, extortion, or torture. Angolan prisons are reported to be overcrowded, unhygienic, lacking in basic necessities, and plagued by sexual abuse. There is clear and convincing evidence before the panel that state protection would not be forthcoming to the principal claimant in his particular circumstances.

[36] As it relates to internal flight alternatives, there is no area of Angola where the principal claimant could protest peacefully without fear of reprisal. Therefore there is no internal flight alternative available to him in his particular circumstances.

Associated and Minor Claimants

[37] The panel sympathies with the difficult situation that the associated and minor claimants are in. The associated claimant has XXXX XXXX¹⁷ and is undergoing XXXX XXXX treatment.¹⁸ The minor claimant is in the care of her mother, though the principal claimant is currently still in her life.

[38] This is a split decision. The principal claimant has a political opinion that puts him at risk of persecution. However, the claimants have not established that it was his political opinion that has lead to the attack on him and his father. They have not established a forward-looking risk, relating to the persons responsible for the attack on the principal claimant, to himself or the associated claimants, nor has any nexus or personalized risk been established for the associated claimants. Therefore, the panel finds that the principal claimant has established his claim but the associated claimants have not.

[39] In short, the adult claimants are separated and they have not established that the principal claimant’s political opinion will cause the remaining claimants problems in Angola.

[40] The panel considered whether the associated claimant’s medical conditions might warrant the granting of her claim for protection. The medical information¹⁹ provided indicates that she was diagnosed with XXXX XXXX in Angola and eventually received treatment for the condition. Similarly, though she was XXXX with XXXX in Canada, the documentation and submissions of counsel regarding XXXX treatment²⁰ in Angola indicate that she can obtain treatment in Luanda, where she formerly worked and resided.

[41] The claimants have not advanced allegations that she would be denied treatment in Angola based on a Convention ground. Similarly they have not alleged that she faces a risk based on her medical conditions, which is not caused by the inability of that country to provide adequate health or medical care. Having reviewed the information on file, the panel finds that the claimants have not established a risk to the associated claimant in Angola based on her medical conditions under sections 96 or 97(1) of the IRPA.

[42] Under these circumstances, the panel finds the associated claimant has not established, on a balance of probabilities, that she or the minor claimant face a risk of harm, that is, a reasonable chance of persecution in regard to s. 96 of the IRPA, or, a likelihood of the harm that is set out in s. 97(1) of the IRPA, should they return to Angola.

CONCLUSION

[43] The panel concludes that the principal claimant XXXX XXXX XXXX is a Convention refugee, on the basis of his political opinion.

[44] Having considered all of the evidence, the panel finds that there is not a serious possibility of persecution on a Convention ground should the associated and minor claimants return to Angola, or that, on a balance of probabilities, they would be personally subjected to a danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment.

[45] The panel concludes that the associated claimant, XXXX XXXX XXXX XXXX and minor claimant, XXXX XXXX XXXX XXXX, are not Convention refugees or persons in need of protection. Therefore, their claims are rejected.

(signed) R. JACKSON

May 8, 2019

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

2 Refugee Protection Division Rules (SOR/2012-256).

3 Exhibit 11.

4 Exhibit 6.

5 Exhibit 10, letter with translation pp 104-110.

6 Exhibit 14.

7 Exhibit 10.

8 Exhibit 6.

9 Exhibit 15, National Documentation Package (NDP) for Angola (December 21, 2018), item 4.2.

10 Ibid., items 2.1 and 2.4.

11 Ibid., item 2.1.

12 Ibid.

13 Ibid., item 2.4.

14 Ibid., items 2.1 and 2.4.

15 Ibid., item 2.4.

16 Ibid.

17 Exhibit 18, XXXX report for associated claimant.

18 Exhibits 20-21, Post-hearing submissions and documents.

19 Exhibit 18, XXXX report for associated claimant.

20 Exhibits 20-21, Post-hearing submissions and documents.

All Countries China

2019 RLLR 216

Citation: 2019 RLLR 216
Tribunal: Refugee Protection Division
Date of Decision: October 2, 2019
Panel: S. Morgan
Counsel for the Claimant(s): N/A
Country: China
RPD Number: TB9-14438
Associated RPD Number(s): TB9-14486, TB9-14494, TB9-14495, TB9-14496
ATIP Number: A-2020-00859
ATIP Pages: 002195-002198

DECISION

[1] MEMBER: This is the decision in the refugee claims of XXXX XXXX, XXXX XXXX, XXXX, XXXX, and XXXX XXXX and their claims for refugee protection. This decision is being rendered from the bench, and written reasons may be edited.

Determination:

[2] I find Mr. XXXX and the youngest child XXXX are not Convention refugees, as I find they’re excluded pursuant to Article 1(e) of the Convention relating to the status of refugees because they have permanent residence in Japan.

[3] Ms XXXX and the older two children I find to be Convention refugees, as I find their country of reference is China and I find they have a nexus to the Convention for the race and religion.

Allegations:

[4] You set out a comprehensive history in your Basis of Claim Narrative.

[5] To summarize your risks, you fear Chinese authorities that’s owing to ill-treatment of Uyghurs in China. You do not articulate a risk in returning to Japan.

Identity:

[6] Your personal identity as nationals of China is established by your passports and your identity as Uyghurs is established by your testimony and by the language of your testimony and by the other identity documents.

[7] Concerning the status in Japan, the issue is exclusion pursuant to Article 1(e) of the Convention. An Article 1(e) states that the Convention shall not apply to a person who’s recognized by the authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of nationality of that country.

[8] I note the Federal Court of Appeal in Zeng set out the test to be taken into account when deciding whether Article 1(e) applies and that is considering all relevant factors to the date of the hearing. Does the claimant have status substantially similar to that of its nationals in a third country.

[9] And I find for you, sir, and for your youngest son the answer to that question is yes. Okay.

[10] I note your credible testimony that you all applied for permanent residence and only you and the youngest son were approved. You’re unsure of the reasoning. Think it might have something to do with your work in Japan.

[11] But concerning Ms XXXX and the older children in Japan, I find their status there is not permanent.

[12] The documents you provided today which are your Japanese permits indicate that those three permits had to be renewed and could be denied as they’re at the discretion of Japanese authorities. So, I find that 1(e) exclusion not applicable as you do not have status there akin to citizenship.

[13] So, for you, ma’am, and … and the two older children I’m assessing your risk in returning to China which I find is your only country of nationality.

[14] I found you a credible witness also. You testified about the last time you were in China in 2016, how you were questioned repeatedly by authorities and how you fear what is ongoing there now for Uyghurs and that includes Uyghurs being sent to detention camps for no reason other than being Uyghur, and that’s corroborated by much documentary evidence that you provide and that I find in the National Documentation Package.

[15] I find that treatment of Uyghurs is worsening in China. I note the Department of State report at Item 2.1 of Exhibit 3 indicates that the government significantly intensified its campaign of mass detention of members of Muslim minority groups in Xinjiang Uyghur Autonomous Region. That authorities have possibly arbitrarily detained 2 million Uyghurs.

[16] I find further you would not have the opportunity to openly practice your faith in China, and that Uyghur activities in religious, commercial, and cultural spheres are severely curtailed in China.

[17] I find the agent of persecution is the State. That it is objectively unreasonable for you to seek State protection, and I find those conditions for Uyghurs exists throughout China, so there’s no internal flight alternative.

[18] So, for you, Madam, and the two older children I do find what you fear amount … amounts to persecution starting from the Chinese Government’s appropriation of your Uyghur names and continuing with an ongoing interference with your ability to freely worship.

[19] I do conclude that you are Convention refugees and I accept your claims.

[20] I thank you all for appearing today.

[21] CLAIMANT: Thank you.

[22] MEMBER: Thank you, Mr. Interpreter. Excellent work. Thank you.

[23] CLAIMANT: Thank you.

———- REASONS CONCLUDED ———-

All Countries Egypt

2019 RLLR 213

Citation: 2019 RLLR 213
Tribunal: Refugee Protection Division
Date of Decision: February 22, 2019
Panel: Kerry Cundal
Counsel for the Claimant(s): Bassam Azzi
Country: Egypt
RPD Number: VB8-06489
Associated RPD Number(s): VB8-06490, VB8-06491, VB8-06492, VB8-06493
ATIP Number: A-2020-00518
ATIP Pages: 003711-003714

REASONS FOR DECISION

[1] This is the decision of the Refugee Protection Division (RPD) in the claim ofXXXX XXXX XXXX XXXX and the joined claimantsXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX XXXX, citizens of Egypt who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“).¹ The claimants’ identities have been established by copies of their passports.²

ALLEGATIONS

[2] The claimants fear return to Egypt because they fear persecution because of their Nubian ethnicity and they have been targets of a feud in which the principal claimant’s brother was killed. The claimants left Egypt and had temporary status in Kuwait because of their work. The principal claimant has been detained and questioned by police due to his ethnicity and dark skin colour. Further details are highlighted in their Basis of Claim (BOC) forms.³The claimants arrived in Canada on XXXX XXXX XXXX 2018. The claimants signed the BOCs on XXXX XXXX XXXX 2018.⁴

Well-Founded Fear of Persecution and Risk of Harm

[3] The claimants provided a detailed narrative and documents supporting the persecution of their family including employment records, police report, death certificates of family members and articles regarding the persecution and marginalization of Nubians in Egypt.⁵ The objective evidence supports the claimants’ fear of ethnic persecution in Egypt and indicates that the Nubian people in Egypt are an ancient people who live along the border between Sudan and Egypt and they have their own distinct language, customs and culture.⁶ The Nubian people have been marginalized politically, socially and economically in Egypt.⁷ There have been deadly clashes between Arab and Nubian tribes and the state has not taken adequate measures to protect Nubians or settle these conflicts.⁸ Nubians have protested to address the harassment, discrimination and displacement they face in Egypt and have been arrested by Egyptian authorities as a result of the protests.⁹ The state classified some of the Nubian lands as military zones in 2014 further displacing the Nubians in Egypt.¹⁰

[4] The objective evidence indicates that Egypt’s authoritarian regime is instituting wide- scale repression and punitive litigation “under the auspices of its many new laws to surveil and stifle individual voices of dissent in civil society;” the authoritarian regime has acted methodically targeting those voicing dissent against the government including detentions and extrajudicial killings.¹¹

[5] The panel finds that the claimants have established a nexus to race/ethnicity. Based on the totality of the evidence, the panel finds that the claimants would face more than a mere possibility of persecution if they return to Egypt.

State Protection and Internal Flight Alternative

[6] The objective evidence indicates the following regarding state protection in Egypt:

The government inconsistently punished or prosecuted officials who committed abuses, whether in the security services or elsewhere in government. In most cases the government did not comprehensively investigate human rights abuses, including most incidents of violence by security forces, contributing to an environment of impunity.¹²

[7] The general security context in Egypt is uncertain at this time:

President Abdel Fattah al-Sisi, who first took power in a July 2013 coup, continues to govern Egypt in an authoritarian manner, though the election of a new parliament in late 2015 ended a period of rule by executive decree. Serious political opposition is virtually nonexistent, as both liberal and Islamist activists face criminal prosecution and imprisonment. Terrorism persists unabated in the Sinai Peninsula and has also struck the Egyptian mainland, despite the government’s use of aggressive and often abusive tactics to combat it.¹³

[8] Further evidence provides a general overview of the fragility of the current regime and lack of operationally effective state protection in Egypt:

In the first several months of 2017, Egypt has witnessed a number of events that have challenged the country’s stability and security, economic development, and the rights and freedoms of its citizens. The Egyptian government has continued its repression of public space, even going so far as to physically close the offices of the El Nadeem Center for Rehabilitation of Victims of Violence and Torture in early February. The country is no more stable, with terror groups and the Egyptian state engaged in a war of propaganda narratives.¹⁴

[9] Based on the totality of the evidence, the panel finds that there is no operationally effective state protection available to Nubians who face death threats due to feuds in Egypt from a state that has been complicit in their displacement and marginalization. Further, given the harassment and discrimination of Nubians due to their dark skin colour throughout Egypt, the panel finds that it is not objectively reasonable in their particular circumstances to relocate in Egypt as they would face the same difficulties and harassment throughout Egypt.

CONCLUSION

[10] For the foregoing reasons, the panel determines that the claimants are Convention refugees under section 96 of the Act. The Immigration and Refugee Board of Canada therefore accepts their claims.

(signed) Kerry Cundal

February 22, 2019

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

2 Exhibit 1.

3 Exhibits 2.1, 2.2, 2.3, 2.4 and 2.5.

4 Exhibits 2.1, 2.2, 2.3, 2.4 and 2.5.

5 Exhibits 2.1, 2.2, 2.3, 2.4, 2.5 and 4.

6 Exhibit 4, pp. 76-97.

7 Exhibit 4, pp. 76-97.

8 Exhibit 3, National Documentation Package (NDP), June 29, 2018, Item 13.1.

9 Exhibit 3, NDP, Item 2.1.

10 Exhibit 3, NDP, Item 2.2.

11 Exhibit 3, NDP, Item 4.8.

12 Exhibit 3, NDP, Item 2.1.

13 Exhibit 3, NDP, Item 2.4.

14 Exhibit 3, NDP, Item 2.5.

All Countries Egypt

2019 RLLR 211

Citation: 2019 RLLR 211
Tribunal: Refugee Protection Division
Date of Decision: April 18, 2019
Panel: J. Schmalzbauer
Counsel for the Claimant(s): Jessica Lipes
Country: Egypt
RPD Number: VB8-06403
Associated RPD Number(s): VB8-06404, VB8-06405, VB8-6406
ATIP Number: A-2020-00518
ATIP Pages: 003624-003629

[1] This is the decision of the Refugee Protection Division (RPD) in the claims of XXXX XXXX XXXX XXXX (the “principal claimant”) and XXXX XXXX XXXX XXXX XXXX (the “associate claimant”), as citizens of Egypt, and XXXX XXXX XXXX XXXX and XXXX XXXX XXXX (the “minor children”) who are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act” or IRPA).¹

ALLEGATIONS

[2] The following is a brief synopsis of the allegations that the adult claimants put forth in the Basis of Claim (BOC) forms.² The principal claimant had submitted that for his entire life he and his family have been victims of racial discrimination due to their identities as Nubians. The principal claimant detailed in his narrative having been repeated harassed by authorities and arrested, detained and threatened to stop what he was doing in asking for the rights of his people, including land rights. The principal claimant and the associate claimant were married in 2014 but he was unable to acquire residency rights for his wife in Qatar where he had been working for over a decade. The adult claimants had their first child in the United States (U.S.), they had made attempts to remain in the U.S. through immigration channels but returned to Egypt and Qatar in 2015.

[3] Their second child, was conceived in XXXX. The associate claimant became scared about being forced to circumcise her daughter as is custom. The principal claimant was laid off from his position in Qatar and the family again travelled to the U.S., where their daughter was born.

DETERMINATION

[4] The panel finds that the adult claimants are Convention refugees, as they do have a well- founded fear of persecution related to a Convention ground in Egypt.

ANALYSIS

Identity

[5] The panel is satisfied on a balance of probabilities, that the adult claimants are nationals of Egypt, considering the certified copies of their Egyptian passports.³

Credibility

[6] The duty of this panel is to find if there is sufficient credible or trustworthy evidence to determine that there is more than a mere possibility that the claimants would be persecuted if they returned to Egypt.

[7] The principal claimant was questioned as to his political opinions and beliefs and he was genuine and credible as to his political knowledge, and I find that more likely than not that these are deeply held beliefs and concerns and that he has a right to share those opinions and belief. The claimant submitted Facebook posts from 2011 onwards regarding the political situation in Egypt.⁴ Overall, I accept that the claimants are of Nubian descent and that the principal claimant has been repeatedly targeted for discrimination, including political repression for his identity and political opinion as an Egyptian of Nubian descent.

[8] According to the World Dictionary of Indigenous and Minority Peoples for Egypt 2017:

Frustration has mounted for Egypt’s ethnic minority Nubian community, culminating on 2 January 2017 in the first ever arrest of Nubian activists in direct relation to their struggle against the state. Six were charged with gathering illegally, protesting without a permit, and attacking security forces, after being detained by police on their way to protest a new presidential decree concerning land ownership. They sought to voice opposition to Presidential Decrees 355 and 498, issued in August and November, which stipulate the confiscation of 1,100 acres of land and could yield a new wave of forced evictions of Nubians already forcibly uprooted from their historical homeland with the construction of the Aswan High Dam in the 1960s. A sit-in demonstration in late November 2016 succeeded in pressuring the government into negotiations and Nubian activists and civil society organizations threatened to pursue international arbitration, but suspended their campaign to allow the state to resolve the issue.⁵

[9] In the U.S. DOS report, that Nubians face discrimination, harassment. It speaks of the political arrests and the resulting protests.⁶

[10] Further country condition evidence before the panel further supports his allegations of political repression:

A February 2017 Reuters article states that “[h]uman rights groups estimate [that] about 40,000 people have been detained for political reasons” since Morsi was deposed Freedom House’s Freedom in the World report for 2017 similarly indicates that civil society organizations “estimate that as many as [40,000] people were being detained for political reasons as of 2016, most of them for real or suspected links to the Muslim Brotherhood”[…]In its 2016 report entitled Egypt: ‘Officially, You Do Not Exist’: Disappeared and Tortured in the Name of Counter-terrorism, Amnesty International states that a “pattern of abuse” that includes arbitrary arrests, arbitrary detention and enforced disappearances by state agents became “particularly evident since March 2015[…]According to lawyers involved in their cases, around 90% of those who are subjected to enforced disappearance are subsequently processed through the criminal justice system on charges such as planning or participating in unauthorized protests or attacking members of the security forces.”⁷

[11] Currently the situation is devolving for those individuals wanted by authorities for questioning on their political or imputed political opinion given the new Emergency Law.

While the exact details of the Emergency Law and how it will be applied were unclear at the publication date, it is likely that the military will be granted extended powers. DFAT assesses that detentions and arrests are likely to increase as a result of the declaration of a nation-wide state of emergency. Sisi also proposed the establishment of a Supreme Council to combat Terrorism and extremism, which would consider new powers for police and intelligence investigators and allow for the fast-tracking of terrorism cases through the court system.⁸

[12] Further evidence submitted by the claimants further supports the increasing repression from the state against Nubian activists.⁹

[13] The principal claimant has been active on social media, and according to the International Journal of Not for-Profit Law:

Egypt’s parliament preliminarily approved the cybercrime draft law on May 14, 2018. The draft “Anti- Cyber and Information Technology Crimes Law” primarily targets the illegal use of private data and other crimes that can take place online, but some of its provisions use broad terminology that could be used to penalize lawful online expression and shutter independent media outlets.¹⁰

Concerns have been raised of the authorities’ capacity and legal ability to target and silence online dissent from the new law.

[14] The principal claimant, which I accept, was arrested and interrogated due to his political opinions. The principal claimant submitted evidence of his online posts against the political situation which the panel has found to be credible. I do find that the risk of loss of liberty is a serious infringement on the human right to liberty and personal integrity. Given the objective evidence of the situation of similarly situated persons, and the claimants’ evidence of having been previously sought, I find that there is more than a serious possibility of political persecution for the claimant throughout Egypt.

State Protection

[15] State protection would not be reasonably forthcoming in this particular case, as the particular agent of harm is the state authorities. The country condition evidence supports that many citizens are deprived of their rights of due process, are arrested without warrants, face harassment and physical and psychological abuse from officials throughout Egypt.¹¹

Internal Flight Alternative

[16] The panel finds that there is a serious possibility of persecution throughout Egypt. There is no obligation for the claimants to be in hiding. The state has control of its territories and has used state authorities in order to intimidate the claimant. The principal claimant’s profile is to such a level that it would more likely than not continue to cause the claimant to be persecuted throughout Egypt.

CONCLUSION

[17] For the foregoing reasons the panel finds that, principal and associate claimants are Convention refugees as set out in section 96. Therefore, their claims are accepted.

U.S. Born Minor Children

[18] The principal claimant acted as the designated representative for the minor children. No evidence was adduced and no submissions were made against the U.S. as a country of persecution or risk.

[19] I find that no evidence was adduced that the minor claimants would face a serious possibility of harm amounting to persecution, or that they would on a balance of probabilities, face a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture whether under section 96 or section 97(1) of IRPA. Since the minor claimants have adduced no evidence of a risk of return to the U.S., their claims for refugee protection are rejected.

(signed) J. Schmalzbauer

April 18, 2019

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

2 Exhibit 2.

3 Exhibit 1.

4 Exhibit 4, Item 5.

5 Exhibit 3, National Documentation Package (NDP), Egypt, March 29, 2019, Item 12.2.

6 Exhibit 3, NDP, Item 2.1.

7 Exhibit 3, NDP, Item 4.5 Response to Information Request (RIR) EGY105804.E.

8 Exhibit 3, NDP, Item 1 .8.

9 Exhibit 4.

10 Exhibit 3, NDP, Item 4.2.

11 Exhibit 3, NDP, Item 2.1.

All Countries Egypt

2019 RLLR 170

Citation: 2019 RLLR 170
Tribunal: Refugee Protection Division
Date of Decision: February 15, 2019
Panel: M. Vega
Counsel for the Claimant(s): Latoya Graham
Country: Egypt
RPD Number: TB7-13974
Associated RPD Number(s): TB7-14095
ATIP Number: A-2020-00518
ATIP Pages: 000437-000441

DECISION

[1] MEMBER: This is the decision in the claims with respect to XXXX XXXX XXXX XXXX and XXXX XXXX XXXX. The principal File Number is TB7-13974.

[2] The adult claimant claims to be a citizen of Egypt and her son XXXX XXXX XXXX claims to be a citizen of United States of America. Both claimants are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3] This decision is being rendered orally today; a written form of these reasons may be edited for spelling, syntax, grammar; and references to the applicable case law, legislation and Exhibits may also be included.

[4] Furthermore, the adult claimant Ms. XXXX is the designated representative of her minor child XXXX. In this claim, I have also taken into consideration the Chairperson’s Guidelines with respect to women refugee or gender refugee claims and this is Guideline 4.

[5] I find that the principal claimant is a national of Egypt as is established by her testimony as well as by the supporting documentation filed, namely, her passport which is found in Exhibit 1, and from this evidence I conclude on a balance of probabilities that she has Egyptian citizenship.

[6] With respect to XXXX, I find that he is also a citizen of the United States of America and I conclude this from his American passport as well as his American birth certificate, both the documents have been filed as Exhibits.

[7] I find, Ms. XXXX, that you are a Convention refugee for the following reasons, and I also find that your son, XXXX XXXX, is not a Convention refugee and I will explain it a little later.

[8] In this case, the issue of the claimant’s identity is partly that she is not only an Egyptian citizen but she is also, and perhaps foremost, she is identified as a Palestinian, and that is because both her parents were and all her family members are Palestinians, and one could say that then the nexus could be either under the issue of national or rather, because it is not a State, the lack of nationality, but it is in her case as in other persons who are Palestinians of Palestinian heritage, it is part of their identity.

[9] In the case of the claimant, she is not a stateless Palestinian because she has the nationality of an Egyptian citizen, but this claim is based on the fact that the treatment that she has received repeatedly over the years has been that of imputed or that she is imputed as though she were a stateless Palestinian even though she is not.

[10] So, the Basis of Claim Form contains the allegations of this case, I have briefly touched on it. The claimant was married once before. It was in that marriage that she acquired her Egyptian citizenship. She is currently divorced from that husband, she had a child with that first spouse and she later, after the divorce, married her current husband.

[11] Her current husband is also of Palestinian origin and lived also in Saudi Arabia, and that marriage was arranged by her mother, but nonetheless that husband or current husband has no legal status in Egypt. He is not a part of this claim. His circumstances have been testified to by the claimant as through his circumstances she has been able to speak about how persons that have no other citizenship or that are stateless such as her husband, how they are treated, and also I mean her mother is also in a similar situation but they are not part of this claim.

[12] So, the claimants left Egypt, and in 2017, went to the United States of America where she stayed for 1 day and then crossed into Canada or tried to, at the border she made her claim for refugee protection. She had a sister in Canada who has been living here for 21 years, and it was on the basis of having a sister here that she was allowed into Canada with her son to make the claim.

[13] Her testimony as well as her Basis of Claim Form speaks about many times being harassed and humiliated at checkpoints because her identification indicates that she is of Palestinian origin and not of Egyptian origin.

[14] She indicates that on her visits when she would leave Egypt and return either to Saudi Arabia mostly, then she would face about twice a year for about 4 years she said she would face hours of being made to wait by the security officials at the airport and she felt humiliated at this all the time.

[15] She also puts in her Basis of Claim Form and later spoke in testimony about how she suffered discrimination repeatedly because she is a Palestinian, and that whenever she went for a job application or an interview, jobs for which she was very qualified, as she had worked in Saudi Arabia on a work permit and worked in these jobs, and yet in Egypt as soon as they notice the identifiers in her ID card or in her passport, the first two digits would indicate that she is a Palestinian, she never received the job in all the years that she kept trying to find employment in Egypt.

[16] She testified that she was often told by some of the employers or prospective employers that the reason she was being denied the job was because of her Palestinian origin.

[17] She also spoke within her Basis of Claim Form how she was also subjected to car searches and personal searches at checkpoints by police and the questioning that was asked was because of her Palestinian status despite being an Egyptian citizen.

[18] So, Ms. XXXX, I have found you to be a credible witness. You did provide your answers at this hearing without embellishment. You answered all the questions without discrepancies in your evidence and your responses were consistent with your Basis of Claim Form and the amendments as well as with your other evidence. I did ask you many questions and I find that these have assisted in establishing your credibility in a favourable manner.

[19] Now, I have considered the documentary material, much of which speaks mostly about stateless Palestinians and your situation is not the same as theirs, but counsel in her submissions made some interesting points, which are especially about how, while you have the protection so to speak of having an Egyptian passport, that’s the official position and in theory, that it is a de facto situation you do not benefit it seems from that Egyptian citizenship, and that you are humiliated and questioned longer than anybody else who has an Egyptian passport and that is because of your ties to Palestinian origins, and this no matter what citizenship you seem to have keeps following you.

[20] The counsel made reference to the Federal Court decision of Xie about the systematic denial of a right to work.

[21] Now, the right to work of your husband is also existent, but I am not looking at his situation am looking at the fact that even though you have the benefit of an Egyptian passport in Egypt, you have still been denied systematically, I would say, the ability or to secure employment to support yourself, and when this happens on a systematic basis, I consider the right to support yourself to be a core human right, and therefore I find that you have faced cumulative discrimination that amounts to persecution.

[22] There has been, I believe in your case, a pattern of repression and the effects of which are that the institutions such as the authority of the Egyptian government which should be protecting you, it would seem from the evidence that you have been denied and that you are not provided with that protection, partly because it is the government itself that made the decrees and certain laws making it harder or practically for stateless Palestinians they have no rights, but for persons such as yourself, there doesn’t seem to, even though you are not a stateless Palestinian, the distinction and the protection you should have been afforded, I don’t believe has been afforded to you.

[23] The document referred by counsel, which is in the National Documentation Package found in Item 3.4, it speaks more generally there about Palestinians in Egypt. It speaks about how the policy changes, or what I refer to as a decree, were made by Mubarak, but these have continued and they have not improved. These have restricted work and the ability of families to reunite.

[24] While that was perhaps more so to address the situation of those that were not granted the benefit of an Egyptian citizenship, in your case, as I have already mentioned, you are perceived to be Palestinian and that you have then experienced similar discriminatory practices that they have had imposed on them in Egypt, and so therefore, if you were being denied your rights as an Egyptian citizen over and over again because of your origins as a Palestinian, then that in my opinion amounts to persecution.

[25] Given this current situation that is described in the National Documentation Package with how the government since the revolution in 2011 and then again afterwards which brought in the current government, the situation does not appear to have become better with respect to human rights.

[26] On the contrary, it appears that human rights have deteriorated according to many sources, and the preponderance of documents including Amnesty International, Human Rights Watch, Freedom House and the United States Department of State, they speak about the rights, the authorities arbitrarily restricting rights to the population, and in your case if you are imputed to be a Palestinian national or a person who is of Palestinian origin, then I don’t believe you would be protected.

[27] So, I don’t believe that there is State protection that is adequate in your situation given that you are overall perceived to be of the Palestinian origin and often treated as though you were stateless.

[28] Also with respect to internal flight alternative, the situation for you will be the same throughout the country in my opinion. I don’t believe that you would have an internal flight alternative. So, you cannot go elsewhere in the country apart from out of Cairo and stay safe because you would face the same serious grounds of persecution.

[29] So, for these reasons, I find that you, XXXX XXXX XXXX XXXX are a Convention refugee, and I therefore accept your claim.

[30] With respect to XXXX, however, there has been no evidence submitted regarding the United States of America that would refute the presumption of State protection for your son in that country of which I find that he is a citizen by virtue of his having a United States of America passport.

[31] Therefore, I find that XXXX XXXX XXXX is not a Convention refugee and I reject his claim for protection. Do you understand that?

[32] Thank you. This hearing is now ended and the hearing is concluded.

[33] Thanks Mr. Interpreter for all your assistance. Good day counsel. Good day everyone.

[34] INTERPRETER: Thank you.

[35] COUNSEL: Thank you.

[36] MEMBER: All the best to you ma’am.

———- REASONS CONCLUDED ———-

All Countries Egypt

2020 RLLR 179

Citation: 2020 RLLR 179
Tribunal: Refugee Protection Division
Date of Decision: January 30, 2020
Panel: Paulina Gueller
Counsel for the Claimant(s): Diane B. Coulthard
Country: Egypt
RPD Number: TB9-15833
Associated RPD Number(s): TB9-15834, TB9-15835
ATIP Number: A-2020-00518
ATIP Pages: 000957-000960

DECISION

[1] MEMBER: I have considered your testimony and the other evidence in the case and I’m ready to render my decision orally. These are the reasons for the decision in the claims of XXXX XXXX XXXX XXXX, a 33-year-old woman and her two children, XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX who claim to be citizens of Egypt and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. I have appointed XXXX XXXX XXXX XXXX as designated representative for the minor children, XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX.

Allegations

[2] You alleged that you fear persecution by the Egyptian authorities because your Nubian ethnicity and your active membership with the Nubian community. You allege that the Nubian community believes that the current regime in Egypt has taken Nubian lands contrary to what was promised to them in the 2014 Constitution. In 2008, you moved from Egypt to Kuwait and you became an active member of the Nubian organization in Kuwait. In 2012, you became a member of the Nubian General Union in Egypt that tried to find solutions to the Nubian problems. On June 12^th, 2018, while you were visiting your family in Aswan, Egypt, you attended a meeting to discuss a new law that authorized the Egyptian government to take land from Nubians in upper Egypt.

[3] Police officers entered the home where you gathered and tooked-, took you to the police station and the other 4 members. The police interrogated you and after about 4 hours of detention, when the police was going to transfer you somewhere else, you were able to escape from their custody. After hiding for 5 days in different family members’ homes, you went to Cairo and finally returned to Kuwait on XXXX XXXX, 2018. Your employment and temporary residency visa in Kuwait terminated in December 2018. Because you were afraid of going back to Egypt, you flew to the United States and crossed the border into Canada, making a port of entry asylum claim in XXXX XXXX XXXX 2018. You fear Egyptian authorities should you return to Egypt and that’s because of your activities on behalf of the Nubian community. You alleged that your two children are not being persecuted but you fear for their education and because the government may potentially use them to pro-, apprehend you.

Determination

[4] I found that you are a Convention refugee as you have established a serious possibility of persecution on account of your membership to a particular social group as a Nubian.

ANALYSIS

Identity

[5] I find that your identity as a national of Egypt is established by your testimony and the supporting documentation filed, including the copy of your passports at Exhibit 1. You stated that you do not have any permanent status in Kuwait as you only had a temporary working visa that ended when your employment was terminated. You also confirmed that you have no permanent resident or citizenship status in any other country other than Egypt.

Credibility

[6] The determinative issue in this case are credibility and state protection. In making this assessment, I have considered all the evidence including your oral testimony and the documentary evidence entered (inaudible). I find you to be credible-, I find you to be a credible witness and therefore believe what you allege in support of your claim. You testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions within your testimony and the other evidence before me which have not been sa-, satisfactorily explained. You testified with clear and convincing evidence about your claim. You were spontaneous with details about your background and knowledge of Nubian nationality. You also provided details of the discrimination that Nubians have been suffering in Egypt. You also testified that one person that was arrested with you on XXXX-, on June 12^this still in detention. You provided corroborating doctum-, documentation to support the core aspects of the claim.

[7] A letter from Al-, Alaqi Association in Kuwait acknowledging your membergy-, membership. Alagi is A-L-A-Q-I. Your Nubian membership card from the General Nubian Union, marriage certificate and authorization from your husband to travel with your children to Canada, a notice against you issued by the Egyptian authorities to appear to a hearing to be held on August 15, 2018 in Aswan, Egypt that states you are a fugitive. After reviewing the documents, I have no reasons to doubt their authenticity. They corroborate that you are an active member of the Nubian Association, you have been arrested by the police and the Egyptian authorities are persecuting you. Further, I accept you are a Nubian person persecuted by the Egyptian authorities, therefore, I find on a balance of probabilities you have established that you are a member of the Nubian community and you have a subjective fear of persecution if you return to Egypt.

Objective Basis and State Protection

[8] The objective documentary evidence describing the current treatment of Nubians in Egypt recognizes that Nubians face discrimination and some harassment. They were displaced from their homeland in the 1960’s and that they may face further forced displacement due to a new government decrease concerning land ownership. The documentation also indicates that the Egyptian government had been making changes to advance the situation of minorities including Nubians but that the government had not yet followed through on certain promises affecting the Nubian minority and that they continue to be blocked from living in certain areas of their traditional territory.

[9] Nubian activist had been arrested and detained as a result of their activism to protect the people’s rights, therefore I find your allegations are corroborated by the objective evidence and more specifically, the National Documentation Package which states at Tab 2.1 that Nubians from upper Egypt face discrimination and persecution by security forces, especially, active members who participate in protests. In November 2017, six Nubians members were charged with gathering illegally, protesting without a permit and attacking security forces after being detained by police on their way to protest the new presidential decree concerning land ownership. When I take all that into consideration, you have demonstrated elements that are sufficient for me to consider you a Convention refugee because of the persecution you would face for belonging to the minority Nubian community and your political opinions that the State would perceive you have. So considering all that, you have demonstrated a well-founded fear of persecution based on your race or ethnicity and your perceived political opinions.

State Protection

[10] I find that it would be objectively unreasonable for you to seek the protection of the State in light of your particular circumstances as well the evidence cited above, especially considering that the State is the agent of persecution in your case, therefore , there’s no state protection available to you.

Internal Flight Alternative

[11] I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Egypt as the Egyptian government is the agent of persecution.

CONCLUSION

[12] Based on the analysis above, I conclude that XXXX XXXX XXXX XXXX is a Convention refugee. Accordingly I accept your claim. The two minors. You allege that your two children are not being persecuted but you fear for their education and because the government may potentially use them to apre-, apprehend ye-, yourself. You also explained that no one in Egypt was going to take care of them. I find that on a balance of probabilities, there’s insufficient evidence that the children face a serious possibility of persecution in Egypt if they were there, therefore, based on the analysis above, I conclude that the two minors, XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX are not Convention refugees under Section 96 of the IRPA or persons in need of protection within the meaning of Section 97(1)(a) or (b) of the IRPA. Accordingly I reject their claims.

———- REASONS CONCLUDED ———-

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

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 ———-

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.

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.