Categories
All Countries Turkey

2020 RLLR 24

Citation: 2020 RLLR 24
Tribunal: Refugee Protection Division
Date of Decision: January 27, 2020
Panel: K. Khamsi
Counsel for the Claimant(s): Amedeo Clivia (Clivea Law)
Country: Turkey
RPD Number: TB9-12901
ATIP Number: A-2021-00540
ATIP Pages: 000143-0000145


DECISION

[1]       MEMBER: This is the decision in the claim for refugee protection made by [XXX]. So you claim to be a citizen of Turkey and you are claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act. Your allegation are detailed in your-, in the narrative portion of your Basis of Claim form but to summarize, you fear persecution in Turkey due to your Kurdish ethnicity and your Alevi faith and also your support of the HDP. You mentioned that you have been discriminated and bullied because of your Kurdish ethnicity and also because of your religion.

[2]       You were arrested twice by the police in-, in Turkey. You were also involved with the HDP and you have relatives who were arrested and held in custody because of their involvement with the HDP. So, now you are afraid to return to Turkey and be discriminated because of your-, of your faith and also because of you are a supporter of the HDP and you are afraid that if you become involved in politics and you are arrested by the police, they find out that-, about your record and you would be in much more trouble. You also testified that you were involved in social media and that you have been criticizing the government and all that maybe held against you.

[3]       So, determination. I find that you are a Convention refugee based on your ethnicity and your political opinion.

[4]       Now, the identified issues are identity and credibility, your ethnicity. So, with respect to your personal identity, I find that you are a citizen of Turkey based on your testimony and documents that you have provided, including your passports.

[5]       With respect to your ethnicity and religious identity, I find on a balance of probabilities that you are of Turkish descent and Alevi faith. You needed prompting, your testimony was not that forthcoming when you were asked about your religion but you also provided some evidence with regarding the Alevi Cultural Centre here and a letter from the Kurdish Association. Too, you also explained that you did not speak Kurdish because your parents wanted to protect you, however, it’ s not something that you were hiding and that led to-, to-, to-, to travel as you have alleged in-, in your story.

[6]       Now with the regard to credibility, I find that your oral testimony did not contradict your written evidence. You needed prompting but there was no contradiction between your oral and written evidence. You were able to explain all the questions that I asked you. You have also provided evidence to support all your allegations. You have provided as I said, a letter from the Alevi Cultural Centre and from the Kurdish-, Toronto Kurdish Centre. You have provided evidence from your social media. I have a letter from your sister who corroborated your-, your story with regard to your arrest in [XXX] 2018.

[7]       I have reviewed also all country conditions documents that we provided in the NDP and by your counsel and the documentary evidence supports your allegations were always targeted and the information that we have in the NDP. They confirm that Kurds were already-, in Turkey, however, the situation has worsened since the-, the 2016 attempted coup and lots of people are-, were arrested in Turkey just because of-, of their background. Who-, so when you are Kurd and Alevi, it makes things worse and we have lots of evidence with regard to discrimination, with regards to Alevi.

[8]       Now, with regard to your political activities. The evidence indicates that if you are perceived to be a member or-, or of any political group, any opposition group sorry, in-, in Turkey, you may be subjected to human right violations and in-, in Turkey, those who are viewed as anti-government are subjected to lots of mistreatment. Specifically, Kurdish and Alevi’s, they are viewed as a threat to the government and as sometimes associated with the-, sorry, I’m trying to find the-, sometimes they can viewed-, be viewed as-, as associated to terrorist activities.

[9]       So, I find that your profile as a Kurdish and Alevi and your political activities may put you at risk of detention and torture at the hand of the government if you were to turn-, to return to Turkey, based on the objective evidence that we have on file. There were other issues that I did not touch, for example, delay in claiming and you went back to Turkey as well, it could have been considered as re-availment, however, you explained in your narrative and that’s I was-, the reason why that happened and you provided evidence with-, with regard to your delay. A letter from your friends who I did not held that against you.

[10]     Now I looked at state protection and given that the State is the agent of persecution, I find that, there is no state protection for you in Turkey and for the same reasons, I find that there is no internal flight alternative available to you in Turkey.

[11]     And to conclude, I find that you are Convention refugee and I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries China

2019 RLLR 26

Citation: 2019 RLLR 26
Tribunal: Refugee Protection Division
Date of Decision: December 2, 2019
Panel: Daniel Mckeown
Counsel for the Claimant(s): Mohammed Tohti
Country: China
RPD Number: TB8-31053
Associated RPD Number(s): TB8-31087, TB8-31110
ATIP Number: A-2021-01124
ATIP Pages: 000159-000161


DECISION

[1]       MEMBER: I’ve considered the testimony and evidence in this claim and I am now prepared to render a decision in IRB file number TB8-31053. The claimants seek refugee protection against China pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act. For the following reasons, the Panel finds that the claimants are Convention refugees and this claim is accepted.

[2]       This claim was based on the following allegations. The claimants are ethnic Uyghurs. They left China in 2014 so that the adult male claimant could work in Malaysia fearing current pol-, Chinese policies towards Uyghurs. The claimants fear for their lives if they were to return to China. The claimants left Malaysia and came to Canada on November 20th, 2018. They signed their Basis of Claims on December 8th, 2018.

[3]       The identity of the claimants were established on the basis of their Chinese passports. The originals of which were seized by the Minister.

[4]       The Panel had no significant concerns about this claim. There was one potential exclusion issue, given that the claimants had Malaysian residence permits in their passports. However, those residence permits are also-, also clearly state that their residence was dependent upon the validity of their passports. Which means that in order for the claimants to continue legally residing in Malaysia, they would have to renew their passports with the Chinese government at some point in the foreseeable future. Given the claimants ethnicity and the government of China is the agent of persecution, it would not be reasonable to expect the claimants to have their Chinese passports renewed. They could not reasonably exercise any right to residency in Malaysia, therefore even if it was available to them and of akin to Malaysian citizenship.

[5]       The sole determinative issue in Uyghurs-, in Uyghur claims in this Panel’s view is the identity of the claimants as Uyghur. That is because of the brutally persecutory nature of the Chinese government towards the Uyghur people. This Panel has access to reliable and credible resources such as the U.K. Home Office report and the US DOS report. Each of which make clear that the Chinese government has oppressed the Uyghur people in virtually every aspect of their lives. Some reports even suggest that as many as two million Uyghur people are now detained in concentration camps.

[6]       The country conditions evidence is suggestive that the Chinese policy of assimilation has now arguably moved into the realm of genocide. For this reason, in this Panel’s view, identity as an ethnic Uyghur is sufficient to establish persecution.

[7]       In this claim, the claimant presented their passports which noted their places of birth in [XXX] province. The claimants spoke Uyghur. And the Panel had no reason to disbelieve any of the evidence or testimony. The Panel finds that the claimants are indeed likely ethnic Uyghurs. Whereas the State is the agent of persecution, the claimants have rebutted the presumption that state protection would be adequate and forthcoming to them. Likewise, there is no location in China where they can go where they would not face a serious possibility of persecution.

[8]       For all these reasons, the Panel finds that this claim is credible. The claimants’ fear is well-founded. The claimants face a serious possibility of persecution on account of their ethnicity.

[9]       The claimants are Convention refugees and this claim is accepted.

———- REASONS CONCLUDED ———-

Categories
All Countries Cameroon

2019 RLLR 99

Citation: 2019 RLLR 99
Tribunal: Refugee Protection Division
Date of Decision: January 28, 2019
Panel: A. Shaffer
Counsel for the claimant(s): Ugochukwu Udogu
Country: Cameroon
RPD Number: TB8-07480
ATIP Number: A-2020-01459
ATIP Pages: 000114-000118


DECISION

[1]       MEMBER: Okay, I am sorry for the delay again. I took a few moments to consider the evidence and I am going to accept your claim. I just have to read my reasons, okay. It is going to take me a few minutes.

[2]       [XXX], you are a citizen of Cameroon and you are seeking refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.

[3]       Your allegations are more fully set out in your Basis of Claim Form and in your testimony.

[4]       In summary, you allege that you fear persecution based on your political opinion and based on your ethnicity as an Anglophone Cameroonian. I find that you are a Convention refugee for the following reasons.

[5]       I find that you have established your identity on a balance of probabilities based on the certified true copies of your passport on files forwarded to the Refugee protection division by Immigration, Refugees, and Citizenship Canada.

[6]       I find that you have established a nexus to a Convention ground to your ethnicity as an Anglophone Cameroonian.

[7]       With respect to credibility, I have serious concerns about your alleged Sur Place political opinion. I find much of your evidence about your political activity within the Southern Cameroon’s relief organisation suspect.

[8]       You alleged that you joined the party in early 2017 and attended a protest with this organisation in August 2017. You alleged that this protest is what led you to becoming of interest to the Cameroonian government. I am not persuaded by the evidence you presented on this matter.

[9]       All of your letters from this organisation indicate that you joined the organisation almost a year later than you said you did. You have no reasonable explanation for why you did not bring documentary evidence to correct the alleged error.

[10]     You had no documentary evidence to show that you attend this protest. I am not persuaded based on the evidence before me that you attended this protest.

[11]     I note that your documentary evidence indicates that you joined the organisation either shortly before or after you prepared your refugee claim.

[12]     You did not name the organisation correctly in your BOC, Basis of Claim Form and you had no reasonable explanation for why you would misname an organisation that you had allegedly joined which put your life at risk.

[13]     I had serious concerns about your motivation for joining this organisation and many other concerns about the evidence that you presented with respect to your alleged political activities.

[14]     However, I have no valid reason to doubt that you are an Anglophone from Cameron. I will rely on the Response to Information Request, CMR106141.E even though it was not disclosed prior to the hearing, but because the evidence contained within it is to your benefit.

[15]     I will excerpt the portion that I find particularly relevant, “A joint statement by a group of UN independent experts expressed concerns over reports of the violence in the South West and North West at the end of 2017 where the country’s Anglophone minority was reportedly suffering worsening human rights violations including excessive force by the security services, injuries, mass arrest, arbitrary detentions, torture, and other ill- treatments”, UN November 17th, 2017.

[16]     According to US country report 2017, “there continue to be reports of arrest and disappearances of individuals by security forces in Cameroon’s Anglophone regions, US, April 20th, 2018, 2.

[17]     A report by Amnesty International documents “unlawful killings and extrajudicial executions, destruction of private property, arbitrary arrest and torture committed by the Cameroonian security forces during military operations in the Anglophone regions including the burning down of villages”, Amnesty International, June 12th, 2018, 6.

[18]     Similarly, in correspondence with the research directorate or researcher in transnational African migration indicated that, more than 78 localities in Anglophone Cameroon have been burned down by the Cameroon military and that the civilians are killed on a daily basis, the Researcher, August 9th, 2018.

[19]     Correspondence with a Research Directorate, representative from International Crises Group indicated that in Bamenda, the regional capital of the predominantly Anglophone Northwest region the security of the Anglophones and Francophones too is not guaranteed.

[20]     This is because violence has been rising as a result of confrontation between security forces and armed separatists as well as several abuses on the population committed by both military and armed groups.

[21]     Security and military officers brutalise and then carry out arbitrary arrest, extort money from the population, intimidate girls and boys with guns and even rape girls. The above information on Bamenda also applies to Buea, Kumba, Menji, Mamfe, Bangu and other Anglophone localities especially rural areas”. International Crises Groups, August 3rd, 2018.

[22]     Similarly, in correspondence with the Research Directorate, a representative at Nouveaux droits de l’homme Cameroon, NDH Cameroon, an Yaounde-based NGO indicated in the document she prepared on the situation of Anglophones in Cameroon that armed forces in Bamenda <inaudible> fire live ammunitions, sometimes occupy houses at night for searches, carry out arbitrary arrest and use excessive force in all circumstances against individuals and Anglophone residents are caught in the crossfire of separatists and government forces”, NDH Cameroon, August 2018.

[23]     According to sources, people have fled the violence in Anglophone regions <inaudible> Cameroon May 29th, 2018, Caritas May 15th, 2018.

[24]     The UN reports that, “Anglophone Cameroonians began fleeing violence in October 2017 and continue to pour into Nigeria’s Cross River, Taraba, Enugu, Akwa, Ibom states and total over 20000 refugees have been arrested in the area, UN March 20th, 2018.

[25]     Amnesty International similarly reports that as a result of the security operations conducted in Cameroon’s Anglophone regions and the consequent violence, more than 20000 people fled to Nigeria and over 15000 people became internally displaced, Amnesty International June 12th,2018, page 6.

[26]     Similarly, the UN Office for the Coordination of Humanitarian Affairs OCHA reports that at least 160,000 people have been internally displaced in Cameroon’s Anglophone region, UN, 29th May, 2018.

[27]     In an emergency response for these regions, OCHA further explained that clashes between non­State armed groups and defence and security forces have displaced the civilian population into the surrounding forest and villages and that 80% of the displaced population have found refuge in the forest, UN, May 2018, page 3.

[28]     I find that the information contained in this RIR as well as other information from the National Documentation Package indicates that there is a serious possibility that Anglophones even ones that are not politically active, accordingly I find that as an Anglophone Cameroonian you face a serious possibility of persecution based on this ethnicity.

[29]     As the State is the agent of persecution against Anglophone Cameroonians, I find that here is no State protection available to you. For the same reason I find that, there is no internal flight alternative available to you.

[30]     Having considered all the evidence, I find that you are a Convention refugee for the above noted reason.

[31]     I am going to return your original documents. Thank you for your testimony today.

[32]     CLAIMANT: Thank you madam member.

[33]     MEMBER: That’s it.

[34]     This hearing is now concluded.

[35]     CLAIMANT: Are we off the record?

[36]     MEMBER: No, I don’t have discussions off the record. So if you would like to say something, go ahead?

[37]     CLAIMANT: Okay, So he did mean, additional, it is not why I mean it..

[38]     MEMBER: It’s fine. Everything is done. So it doesn’t matter. Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Sri Lanka

2019 RLLR 90

Citation: 2019 RLLR 90
Tribunal: Refugee Protection Division
Date of Decision: November 6, 2019
Panel: James Waters
Counsel for the claimant(s): Raoul Boulakia
Country: Sri Lanka
RPD Number: TB8-00236
ATIP Number: A-2020-01459
ATIP Pages: 000048-000054


REASONS FOR DECISION

[1]       The 29-year-old claimant, [XXX], claims to be a citizen of Sri Lanka, and claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The allegations in support of his claim are set out in detail in his Basis of Claim Form (BOC) narrative.2 The following is a short summary.

[3]       The claimant left Sri Lanka for India with his mother and siblings in 1999, to escape the fighting between the Sri Lankan Army and the Liberation Tigers of Tamil Eelam (LTTE). The claimant returned to Ukulankulam, Sri Lanka in 2003, and studied at [XXX], where he was a student prefect.

[4]       In April 2006, the claimant was kicked while being interrogated at home by the Sri Lankan Army, concerning his attendance as a representative of his school at what had been a Tamil cultural event, which turned out to be an event organized by the LTTE to promote their cause and recruit students.

[5]       The claimant returned to India on [XXX] 2006. His activity as an [XXX] of a 2009 protest at the Pooluvapatti Refugee Camp, demanding a halt to the war in Sri Lanka, brought him to the attention of the Q Branch of the Indian police. In 2013, the claimant attended a large student protest in Chennai, accusing the Sri Lankan Army and government of genocide, and demanding that the Sri Lankan government and Army be held accountable for the atrocities committed against the Tamil people during and after the conflict with the LTEE.

[6]       The claimant alleges that his younger brother, [XXX], who had returned to Sri Lanka in 2014, was arrested and detained at an army camp in Vavuniya for his participation at a student protest held on October 24, 2016, after police killed two Jaffna University students. During his detention, [XXX] was questioned about the whereabouts of the claimant, and instructed to inform the claimant that he must attend for an inquiry whenever he returned from abroad.

[7]       The claimant became involved in publicizing an intrusion by members of an extreme wing of the Bharatiya Janata Party (BJP), a Hindu nationalist party, riding motorcycles into the Pooluvatti Refugee Camp on July 8, 2017. The claimant alleges that he was harassed and targeted by the Q Branch police in India, who pressured him to apply for a travel document to return to Sri Lanka.

[8]       The claimant was issued a passport that restricted his travel to refugee repatriation to Sri Lanka.

[9]       The claimant fears he will be detained and tortured on his return to Sri Lanka, as someone returning from abroad, suspected of fleeing Sri Lanka because of his association with the LTTE, and of supporting their cause abroad.

IDENTITY

[10]     The national identity of the claimant as a citizen of Sri Lanka was established by his oral testimony in the Tamil language, and the supporting documentation filed. The supporting documentation included: a certified true copy of his most recent Sri Lankan passport,3 as well as copies of his expired Sri Lankan passport, birth certificate, and birth registrations for his parents.4

CREDIBILITY

[11]     When a claimant swears that certain facts are true, this creates a presumption that they are indeed true, unless there is valid reason to doubt their veracity.5 The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.6

[12]     The claimant testified in a spontaneous direct manner. There were no significant discrepancies between his oral testimony and the information contained in his written narrative.

[13]     The claimant’s oral and written testimony as to returning to Sri Lanka from India in 2003 was supported by a copy of his Sri Lanka Deputy High Commission Emergency Travel Document, issued to his mother and her accompanying children, dated April 3, 2003.7 Similarly, his oral and written testimony as to returning to India on [XXX] 2006 was supported by an entry stamp in his expired Sri Lanka passport.8

[14]     The claimant’s oral and written testimony as to attending high school in Sri Lanka after his return was supported by a copy of his General Certificate of Education (O.L.) Examination results, dated May 4, 2005.9

[15]     The claimant’s oral and written testimony as to being a refugee from Sri Lanka, housed in refugee camps in the Indian state of Tamil Nadu after his return to India, was supported by a copy of his family identity card.10

[16]     His testimony as to his younger brother, [XXX], attending an October 24, 2016 large student demonstration in Colombo, protesting the killing of two Jaffna University students by the police was supported by an article from the Tamil Guardian which included a picture of [XXX] waving a sign.11

[17]     The claimant’s testimony as to his involvement in publicizing a violent incursion into the refugee camp he stayed at, by militants aligned with the BJP, was supported by a newspaper article and a copy of the photograph of the damaged motorcycles abandoned by the militants in the fracas that ensued after they entered.12

[18]     Having regard to all of the evidence, the claimant established, on a balance of probabilities, the main allegations outlined in his narrative. He established problems with the Sri Lankan Army that caused him to return to India in 2006. He established participation in demonstrations in India against the Sri Lankan government in 2009 and 2013. He did not use the expired 2017 Sri Lanka passport that permitted travel only to Sri Lanka.

OBJECTIVE BASIS

[19]     A British Home Office Report indicates that:

‘The focus of the Sri Lankan government’s concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka is a spent force…’

‘The government’s present objective is to identify Tamil activists in the Diaspora who are working for Tamil separatism …’

‘If a person is detained by the Sri Lankan security services there remains a real risk of mistreatment or harm requiring international protection.’ …

‘Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days…’

For persons whose names appear on either the ‘watch list’ or ‘stop list’ the risk of ill-treatment following arrival in Sri Lanka will be as a result of arrest and detention by authorities, rather than any prosecution itself for the crime or crimes for which the person is wanted.13 [footnotes omitted]

[20]     The latest Department of State (DOS) report indicates that the “[e]xcessive use of force against civilians by police and security officials remained a concern.”14

[21]     Amnesty International maintains that:

Individuals removed from Canada and suspected of having ties to the LTTE may be detained, interrogated and arrested by the CID or SIS upon arrival at the airport with respect to their reasons for return to Sri Lanka, activities in Canada and possible links to the LTTE. Such a person is at risk as a person returned from abroad, who may be presumed to have access to financial resources and/or international connections which could be exploited for financial gain by Tamil paramilitary groups or state agents.15

[22]     The documentary evidence provides an objective basis for the claim. The claimant has rebutted the presumption of state protection.

[23]     The claimant has established a serious possibility of persecution should he return to Vavuniya, based on his Tamil ethnicity and imputed political opinion.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[24]     An IFA arises when a claimant, who has a well-founded fear of persecution in his or her home area of the country, is not a Convention refugee, because he or she has an IFA elsewhere in the country.

[25]     The test to be applied in determining whether there is an IFA is two-pronged:

… 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.

…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 the claimant to seek refuge there.16

[26]     The Federal Court of Appeal sets a very high threshold for the unreasonableness test, requiring “nothing less than the existence of conditions which would jeopardize the life or safety of a claimant.”17 There must be “actual and concrete evidence of such conditions.”18 I identified Colombo as a prospective IFA.

[27]     Sri Lanka is an island country, and the Australian Department of Foreign Affairs and Trade report notes that, “Sri Lankan security forces maintain effective control throughout Sri Lanka and it is unlikely that individuals would be able to relocate internally with any degree of anonymity.”19

[28]     The claimant fears the Sri Lankan Army and police who are important parts of the state apparatus. The claimant has established a serious possibility of persecution throughout Sri Lanka.

CONCLUSION

[29]     I find the claimant, [XXX], to be a Convention refugee. I therefore accept his claim.

(signed)           James Waters

November 6, 2019

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC).
3 Exhibit 1, Package of information from the referring CBSA/IRCC, Certified True Copy of Passport.
4 Exhibit 4, Package of Personal Disclosure, at pp. 3-10, and 18-19.
5 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
6 Orelien, Joseph v. M.E.I. (F.C.A., no. A-993-90), Heald, Mahoney, Stone, November 22, 1991. Reported: Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.); (1991), 15 Imm. L.R. (2d) 1 (F.C.A.).
7 Exhibit 4, Package of Personal Disclosure, at pp. 16-17.
8 Ibid., at p. 19.
9 Ibid., at pp. 31-32.
10 Ibid., at pp. 20-25.
11 Ibid., at pp. 41-43.
12 Ibid., at pp. 46-47.
13 Exhibit 3, National Documentation Package (NDP) for Sri Lanka (March 29, 2019), item 1.4.
14 Ibid., item 2.1.
15 Exhibit 5, Country Conditions Package, at p. 23.
16 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] I F.C. 706 (C.A.), at paras 6 and 9.
17 Ranganathan: M.C.I. v. Ranganathan, Rohini (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. Reported: Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.), at para 15.
18 Ibid.
19 Exhibit 3, NDP for Sri Lanka (March 29, 2019), item 1.4.

Categories
All Countries Democratic Republic of Congo

2019 RLLR 78

Citation: 2019 RLLR 78
Tribunal: Refugee Protection Division
Date of Decision: November 6, 2019
Panel: Chad Prowse
Country: Democratic Republic of Congo
RPD Number: VB8-05510
ATIP Number: A-2020-01274
ATIP Pages: 000250-000254


— DECISION AND REASONS BY THE MEMBER

[1]       PRESIDING MEMBER: Mr. [XXX] I’ve considered your testimony and the other evidence in your case and I’m ready to render my decision orally. I would like to add that in the event that written reasons are issued they will reflect those that I’m giving you now.

[2]       Mr. [XXX], the claimant, is a citizen of Democratic Republic of Congo, hereafter referred to as DRC who claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       The claimant alleges the following in his Basis of Claim form and narrative: that he belongs to the Banyamulenge Tutsi ethnic group. His refugee claim is based on his fear of persecution at the hands of various militia groups, government authorities and other Congolese tribes who consider the Banyamulenge community as foreigners in the DRC.

[4]       The claimant states that he has suffered a great deal in his country on the basis of his membership in this ethnic group. He says that he cannot count how many times he has walked in fear, been tortured, attended funerals of innocent Banyamulenge who are massacred including his own family members, relatives, friends and neighbours, all from this community.

[5]       He alleges that violence against his ethnic group is country-wide in Congo and has intensified after the recent elections due to the fact that the current government campaigned on the promise of uprooting foreigners and leaving Congo to the Congolese.

[6]       He refers to a few recent incidents of personal persecution leading to his departure from the country. In [XXX] 2017 he alleges that he was captured by rebels and tortured along with some of his workers. One of his workers died and [XXX] of his cows were stolen.

[7]       In [XXX] 2018 Mai-Mai militias escalated their attacks on Banyamulenge villages. At this time he was in Goma to purchase salt and medication for his cows. His farm was attacked and one worker was killed. He went to the police in Goma to report the incident but while there he was thrown into a police cell, tortured and had to bribe the guards to be released.

[8]       Recently while he was in Canada he learned that his farm was attacked again by militias, cows were taken and another worker was killed.

[9]       The claimant departed the DRC on the [XXX] 2018, transiting [XXX] on a Canadian visa that he had previously obtained.

[10]     The determinative issue in this case is credibility. The claimant’s identity as a citizen of DRC is established by his testimony and the supporting documentation filed, including a certified true copy of his passport.

[11]     When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.

[12]     I found the claimant to be a credible witness. He testified in straightforward manner and there were no relevant inconsistencies or omissions in his testimony or contradictions between his testimony and other evidence before me that have not been explained.

[13]     The claimant called his grandson [XXX] (ph) as a witness who was able to corroborate his allegations.

[14]     The claimant also supported this claim with adequate personal documentation including his passport and the GCMS notes pertaining to his visa application which support his tesetiony that he is from the tradition location of the Banyamulenge community in south Kivu.

[15]     On a balance of probabilities I find that the claimant has established that he is a member of the Banyamulenge Tutsi ethnic group from the province of South Kivu and that he was targeted, threatened, harmed by militia and/or other criminal armed groups on the basis of Convention grounds.

[16]     The available country evidence in the NDP establishes that there is an objective basis for the claimant’s fear of persecution. According to the Response to Information Request RIR COD 105 270 on the treatment of Banyamulenge, the Banyamulenge community in the narrow sense of the term is located in South Kivu; however, the term Banyamulenge is also used broadly to designate the Tutsi or other people of Rwandan origin in the DRC.

[17]     On a balance of probabilities the claimant is a member of the Banyamulenge located in South Kivu. The country documents establish that the Banyamulenge face some discrimination and mistreatment throughout DRC and that they are victims of ethnically motivated conflict in South Kivu and other areas at the hands of a wide variety of non-state and state actors.

[18]     According to the RIR the Banyamulenge are considered by many Congolese as recent immigrants with no rightful claim to Congolese citizenship. Anti-Tutsi ideology is still present in the DRC and some Congolese call for the return home of all Rwandan groups.

[19]     As the claimant himself expressed, his father and his father’s father and perhaps beyond that have all been born and raised in DRC. The document titled It’s not all about the land: Land disputes and conflict of the Eastern Congo explains the nexus of land, identity and conflict in South Kivu and other areas of DRC. According to this document, the most visible land-related conflicts in the Eastern Congo which have contributed to large-scale violence are those that have pitted ethnic communities against each other. Land, identity and conflict are often directly connected with competition for land undermining ethnic co-habitation leading to large scales violence.

[20]     The dramatic and long-term impact of such intercommunity struggles is illustrated by the case of Calais (ph) South Kivu. Here tensions are mainly the result of the expected return of Tutsi communities to their lands on Calais’ high plateau mountain range. These communities left the region in 1994 as a result of attacks from Hutu armed groups that were related to spill-over effects of the Rwandan genocide.

[21]     Prior to their departure, Tutsi communities made arrangements about their concessions, either selling the land or leaving it custodians or guardians. At present, however, much of this land is occupied by Hutu farmers who fear the loss of their livelihood options in case the original Tutsi land owners return. In this case land disputes have revived long-standing animosities and contribute to the enduring presence of armed groups.

[22]     While community leaders use these armed groups to ensure and protect their access to land, the persistence of these groups is also connected to land-grabbing by politico-economic elites, which further reduces the livelihood options of Hutu farmers.

[23]     The ethnically motivated violence towards Banyamulenge is well-documented in the NDP with sources referring to the death and displacement of members of these communities over the years.

[24]     United State Department of State report for 2018 reports that conflicts continued in parts of eastern DRC, particularly in the provinces of North Kivu, South Kivu, Tanganyika, lturi, Uele, and provinces in the Kasai (ph) region. Foreign rebels and militia groups, RMGs, such as the Democratic Forces for the Liberation of Rwanda, the Allied Democratic Forces National Army for the Liberation of Uganda, the National Forces of Liberation and the Lord’s Resistance Army, as well as indigenous RMGs such as various Mai-Mai local militia groups, Kamuna Nasapu (ph) and the Banamura (ph) continue to perpetrate violence against civilians.

[25]     RMGs committed abused in rural areas of North Kivu, South Kivu the Kasai provinces and the former provinces of Katanga and Noriyantal (ph) including killing, raping and torturing civilians.

[26]     I find that the claimant has rebutted the presumption of state protection and that he does not have a viable internal flight alternative. United States Department of State report states that civilian authorities did not always maintain control over the security forces.

[27]     Additionally, the government took military actions against some RMGs but had limited ability to investigate abuses and bring the accused to trial. Moreover, government security forces were one of the perpetrators of abuses, including unlawful killings, disappearances and torture.

[28]     There’s also evidence that the authorities have failed to intervene to protect the Banyamulenge. According to the RIR, sources state that the Congolese Army did not intervene to protect the violence against them in 2014.

[29]     Human Rights Watch also criticises members of the UN Peacekeeping Mission in the DRC who were based a few kilometres away for not intervening. Sources note however that the authorities initiated a Commission of Inquiry into the violence and two members of the armed forces were arrested.

[30]     Finally, the claimant has provided testimony that is presumed to be truthful that he was mistreated by the authorities when he attempted to seek police protection prior to his departure from the country.

[31]     I find that any IFA fails on the grounds that it would be unreasonably harsh. The claimant is an 82 year old man with medical conditions. He has no relatives outside the conflict zone. His immediate family members have disappeared in DRC.  He is from a rural area where he managed two farms and worked as a [XXX]. Although there is some evidence that some Banyamulenge in Kinshasa are well integrated in political, social and economic terms, the claimant has poor prospects for establishing himself there or anywhere else in the country.

[32]     I find that he has met the high threshold for establishing that an IFA would be unreasonable.

[33]     Therefore, having considered all of the evidence before me, I determine that there is a serious possibility that the claimant would be persecuted in DRC on grounds of race or nationality. Therefore, I find that Mr. [XXX] is a Convention refugee and I accept his claim for protection.

—PROCEEDINGS CONCLUDED

Categories
All Countries Hungary

2019 RLLR 60

Citation: 2019 RLLR 60
Tribunal: Refugee Protection Division
Date of Decision: June 14, 2019
Panel: M. Somers
Counsel for the claimant(s): John W. Grice
Country: Hungary
RPD Number: TB8-09172
Associated RPD Number(s): TB8-09218, TB8-09231, TB9-11 756
ATIP Number: A-2020-01274
ATIP Pages: 000145-000150


DECISION

[1]       MEMBER: The Board is prepared to render a decision orally based on the testimony of the claimants, as well as, other documentary evidence that has been filed in this matter.

[2]       The claimants, a family, the principal claimant, [XXX] (the principal claimant), his wife, [XXX] (wife) and their minor daughter, [XXX] (daughter) and the principal claimant’s mother …

[3]       Did I get something wrong, Madame Interpreter, the names?

[4]       INTERPRETER: [XXX] is the wife, the common-law wife.

[5]       MEMBER: Okay. Thank you.

[6]       INTERPRETER: [XXX] is the daughter.

[7]       MEMBER: Thank you and we’ve got … they never put these things in the right order.

[8]       So, the mother is, [XXX].

[9]       So, that it’s clear, the claimants are a family, husband/wife, mother/father, their minor daughter and the principal claimant’s mother. They are all citizens of Hungary.

[10]     They have all made refugee protection claims under Sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

[11]     The principal claimant has been designated as the representative for his minor daughter in this matter.

[12]     The Board has taken into consideration the Board’s guidelines for minor claimants in the determination of the daughter’s claim.

[13]     In addition, the Board has taken into consideration the Chairperson’s Gender Guidelines in the determination of the claims for the principal claimant’s wife, the principal claimant’s mother, the principal claimant’s daughter.

Allegations

[14]     The specifics of the claim are stated in the principal claimant’s narrative, as well as, the principal claimant’s mother’s narrative, that are found in their Basis of Claim Form (BOC).

[15]     They allege the following:

[16]     They are Hungarian citizens whose ethnicity is Roma.

[17]     They fear to return to Hungary as they believe that they will be persecuted based on their ethnicity. They claim that they have been harassed, discriminated, threatened and assaulted due to their ethnicity.

[18]     They claim that there’s systematic discrimination against the Roma in Hungary.

[19]     In addition, they fear the actions of extremists, nationalists and members of the Jobbik Party in Hungary and in general, racist attitudes of the population as a whole.

[20]     They maintain that the police in Hungary have a discriminatory attitude towards members of the Roma community and would not adequately protect them or other members of the Roma community.

[21]     The principal claimant, his wife and child, left Hungary on or about [XXX], 2018. The principal claimant’s mother left on [XXX], 2019.

[22]     When they entered Canada, they made claims for refugee protection soon thereafter.

Determination

[23]     The Board finds that the claimants are Convention refugees pursuant to Section 96 of the IRPA.

[24]     The Board’s reasons are as follows:

Analysis

[25]     The Board was concerned with the issues of credibility and state protection.

Identity and Credibility

[26]     The Board was satisfied with the personal identity of the claimants, that is, the personal identity of the claimants and that they were or are Hungarian citizens based on certified copies of their passport, as well as, other secondary identification documents filed.

[27]     In respect to the claimants’ ethnicity, that of being a Roma, the Board is satisfied that they are Roma based on the testimony of the claimants, as well as, a few secondary identification documents filed on their behalf. As such, the Board accepts that all claimants’ ethnicity is that of a Roma.

[28]     In the hearing, most of the evidence, most of the testimonies, was given by the principal claimant. The principal claimant’s mother did testify for a brief moment, as well. Overall, the Board found that the testimony of both witnesses were credible and reliable.

[29]     The principal claimant testified that he believed that the discriminatory attitude towards Roma was what at best could be described as, widespread. In fact, it would not be far fetched to state that he believed that it was 100%, that all non-Roma are discriminatory and act on that discriminatory basis towards a minority community that he belongs to, the Roma in Hungary.

[30]     The Board has carefully reviewed the country condition articles, reports, filed by both Counsel and the Refugee Protection Division. The Board notes that many of the documents, particularly found in the National Documentation Package, are from independent, reputable, international human rights organizations, as well as, reports from state agencies, departments from well-respected Western democracies such as Canada itself, the United Kingdom and the United States of America.

[31]     It would be fair to say that, the vast majority of information in these country conditions articles and reports, substantiates, supports the claimants’ testimony and allegations found in their narrative in their claim that there is a long history of discrimination towards the Roma community by the general Hungarian society, by the government, by its security apparatus.

[32]     The country conditions articles clearly describes discrimination as widespread. As noted, the principal claimant believes 100% of the population is discriminatory. I’m not sure the documentary evidence states that but it does state that it is widespread.

[33]     In its determination of whether the claimants are Convention refugees or not, the Board has to determine whether the claimants have been persecuted in the past or if they were to return, would they be persecuted as opposed to just being discriminated against?

[34]     The Board notes that there is jurisprudence that states for a matter to be considered persecution that the mistreatment suffered or anticipated by a claimant must be serious. The approach that is used by the courts is and approved by the courts, is equated to a notion of a denial of a core human right.

[35]     The documentary evidence indicates that – and will be discussed later on in this decision – that the Roma, members of the Roma communities are discriminated on a continuous basis on all facets of their life from education, employment, health services, accommodation.

[36]     The Board finds that if the claimants were to return to Hungary that they would have a well­ founded fear of persecution.

[37]     The information found in the documentary evidence acknowledges that Hungary has taken steps to improve in the moderating of the rights of the Roma in Hungary. It has maintained a Roma Council bringing in members from different facets of society to ensure that the Roma population in Hungary is not discriminated or abused.

[38]     Nevertheless, the sources clearly indicate that both government and non-government policies for Roma integration has not been implemented.

[39]     The documentary evidence indicates that there are grave problems regarding poverty in the Roma community in Hungary, in particular, child poverty. Many of the reports, particularly from the European Union, from the UN, have not been implemented.

[40]     The annual reports from the United States State Department Reports on Human Rights Practices in Hungary, each year indicates that discrimination continues to significantly limit Roma from access to education, employment, health services and social services.

[41]     The U.S. reports every year indicates that there is a racist attitude perpetrated by the police force against this particular ethnic community.

[42]     Some of the statistics mentioned in the documentary evidence are shocking. For example, 80% of the Roma aged between 15 and 64, have not completed more than 8 years of primary education, compared to 20% among non-Roma and of those Roma, 16% did not finish primary school at all while 63% completed primary school without going on to secondary school. The comparable figures for non­ Roma Hungarians are I% and 90%, respectively.

[43]     The discrepancy narrows among those students who study vocational and trade schools, 15% of Roma versus 25% of non-Roma completed vocational programs.

[44]     The unemployment rate between the Roma and non-Roma Hungarians are significant.

[45]     The Board does acknowledge that the Hungarian government has expressed the willingness to provide protection to all of its citizens. The government has made commitments to the European Union to make efforts to improve the conditions of its minority citizens, including the Roma.

[46]     However, the Federal Court of Canada has held on a number of occasions, that good intentions alone to protect and improve the plight of the Roma in Hungary are not enough. There is a general jurisprudence that states that, having legislation that protects its nationals but is not implemented at all while its nationals are being deprived of core human rights, does not amount to adequate state protection.

[47]     As such, the Board finds that he Hungarian government and its police are unable to provide adequate state protection to its Roma citizens, at this time.

[48]     As such, based on case law, the Board finds that the claimants have rebutted the presumption of state protection with clear and convincing evidence.

[49]     Although not an issue, I would mention internal flight alternative. The Board finds that the country condition articles and reports indicate that the discrimination and harassment and hostile attitudes of the Hungarian population, of the Hungarian government, of the poor services provided by police to this minority group, is systematically widespread and as such, there is no viable IFA available to the claimants should they return to Hungary.

Conclusion

[50]     Based on this brief analysis, the Board finds that the claimants are Convention refugees and accepts their claims.

[51]     This hearing is over.

———- REASONS CONCLUDED ———-

Categories
All Countries Hungary

2019 RLLR 55

Citation: 2019 RLLR 55
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2019
Panel: William T. Short
Counsel for the claimant(s): Kristina Cooke
Country: Hungary
RPD Number: TB8-04266
ATIP Number: A-2020-01274
ATIP Pages: 000104-000107


DECISION

[1]       On February 11, 2019, the Refugee Protection Division (RPD) heard the claim of [XXX], who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral positive decision and Reasons for decision. This is the written version of the oral decision and Reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate.

[2]       This is the positive decision with respect to the matter of TB8-04266 of [XXX]. He is a citizen of Hungary of Roma descent, and claims to be a Convention refugee or a person in need of protection pursuant to the provisions of 96 and Subsection 97(1) of the Immigration and Refugee Protection Act1 on account of his Roma heritage.

[3]       The claimant has asserted that he was subjected to severe and chronic societal and economic discrimination in Hungary because of his Roma ethnicity. He was further attacked on one particular occasion by some so-called “skinheads,” and the police who were called did not seem very interested in protecting this fellow.

[4]       For a more complete and detailed examination or recital of his allegations, one can regard the narrative portion of his Basis of Claim (BOC) Form,2 which has been taken into evidence as Exhibit 2.

[5]       The claimant’s assertions are in keeping with country documents with respect to the plight of the Roma in Hungary. If one were to look at Item 13.5 in the document package, this is Response to Information Request and it is HUN 105586.E and it is dated August 18th, 2016. It says:

Sources indicate that Roma in Hungary face discrimination ‘in all fields of life,’ including education, housing, employment, health care and political participation. The Hungarian Ombudsman reports that the”[d]isadvantageous social conditions of Roma is aggravated by discrimination especially in the field of education, health, employment, housing and access to services.” According to their 2016 annual report, the office, of the Ombudsman notes that Roma complainants “most often talk about prejudices present in society, discriminative treatment as well as severe social and accommodation problems.”3 [footnotes omitted]

[6]       It goes on to quote the country reports of the United States State Department of State for 2015 that “states that unemployment rates for Roma are 3-5 times higher than for non-Roma.”4 [footnotes omitted]

[7]       “In addition, 78.1 percent of Roma experienced “severe material deprivation in 2014… “5 and this is in severe contrast to the rest of the population.

[8]       I am also looking at Item 2.1 in the document package which is Hungary: Country Reports on Human Rights Practices, and that’s again the DOS, it’s dated April 23rd, 2018.

According to the EC’s Roma integration indicators scoreboard (2011-16) one-third of Roma lived in households with no toilet, shower or bathroom….

In January the ECHR ruled that police failed to provide adequate protection to two Romani individuals who were attacked with stones and bottles during a demonstration by Jobbik and paramilitary groups in Devecser in 2012 or to conduct a proper investigation of the incident.

In February the Supreme Court ruled that local police in Gyongyospata had discriminated against the local Romani community in 2011 by failing to protect them against harassment by extremist groups.6

[9]       Then going on to Item 2.5, which is a United Nations Human Rights Report, it has:

… stated that in recent years, Roma had increasingly been victims of displays of intolerance, hostility and racially motivated violence.” [It was recommended] inter alia that Hungary take resolute measures to combat all forms of intolerance, including in political discourse and take further steps to effectively prevent, investigate and sanction all forms of discrimination by members of the police force. HHC recommended that Hungary take measures to combat ethnic profiling by the police affecting the Roma7.  [footnotes omitted]

[10]     This speaks to the fact that this young man was continually stopped and asked for identification by the police.

[11]     In Response to Information Request, HUN106145.E, which is 10.1, dated August 17th, 2018, it says;

A 2018 report by the UN Human Rights Committee indicates that in Hungary there is a “prevalence of hate crimes and … hate speech targeting minorities,” including Roma, and states that “police often fail to investigate and prosecute credible claims of hate crimes and criminal hate speech … Minority Rights Group …  reports that Roma face a “continued hostility” from police forces in Hungary, which includes a “failure to protect” them from attacks8. [footnotes omitted]

[12]     It goes on and on.

[13]     I am of the view that the country materials disclose that the Hungarian State does not offer effective protection to the Roma minority from hate crimes.

[14]     One of the other pieces of material cited says that the police have a habit of not citing hate crimes as hate crimes upon the due process, they simply process as ordinary criminal offences.9

[15]     The information I have before me indicates that the Roma are subjected to terrible societal discrimination in Hungary, they are subjected to hate crimes on an ongoing basis, they are subjected to harassment by the police, and the Hungarian State through the police force has totally failed to protect these people and for that reason, the claimant I find to be totally credible.

[16]     The claimant has a claim that he is, among other things, a Convention refugee because of his ethnicity, which is a connection or a nexus to a Convention ground.

[17]     Therefore, I find that the allegations of fact made by the claimant in his oral testimony today and in his written narrative are, on the balance of probabilities, true and for the reasons previously stated, the officials and authorities in his own country have failed to protect him. That in my humble opinion makes him a Convention refugee.

[18]     I find that he is a Convention refugee and his claim is hereby accepted.

———- REASONS CONCLUDED ———-

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC) TB8-04266, received March 5, 2018.
3 Exhibit 3, National Documentation Package (NDP) for Hungary (August 31, 2018), Item 13.5, at pp. 2-3.
4 Ibid., at p. 2.
5 Ibid., at p. 3.
6 Ibid., Item 2.1, at pp. 35-36.
7 Ibid., Item 2.5, at para. 11.
8 Ibid., Item 10.1, at p. 1.
9 Ibid.

Categories
All Countries Hungary

2019 RLLR 50

Citation: 2019 RLLR 50
Tribunal: Refugee Protection Division
Date of Decision: January 14, 2019
Panel: S. Eng
Counsel for the claimant(s): John A Salam
Country: Hungary
RPD Number: TB7-23388
Associated RPD Number(s): TB7-23443, TB7-23444, TB7-23445, TB7-23460
ATIP Number: A-2020-01274
ATIP Pages: 000069-000073


DECISION

[1]       MEMBER: This is the decision in the claims of principal claimant [XXX]; her three children [XXX], [XXX] and [XXX]; along with her common-law partner [XXX]; in RPD File Numbers TB7-23388, TB7-23443, TB7-23444, TB7-23445 and TB7-23460.

[2]       The claimants are citizens of Hungary and they are claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.

[3]       The facts and events alleged in support of their claims are set out in their respective Basis of Claim Forms. In summary, the claimants allege persecution in Hungary on the basis of their ethnic Roma identity.

[4]       The panel finds that the claimants are Convention refugees within the meaning of Section 96 of the IRPA.

[5]       The claimants’ identities were established as citizens of Hungary through their passports and the passports which were seized by CBSA. The panel is therefore satisfied that the claimants have met their burden and established their identities.

[6]       Based on its consideration of the totality of the evidence including the claimants’ testimonies, the panel finds on a balance of probabilities that the claimants are ethnic Roma. The principal claimant was the only claimant that testified at the hearing. The panel finds that the claimant testified in a straightforward fashion with regard to the central element of her claim.

[7]       The panel finds that the claimant’s overall testimony was credible and accepts on a balance of probabilities that she has faced discrimination that would rise to the level of persecution and would continue to face a serious possibility of persecution on a forward-looking basis should the claimants return to Hungary.

[8]       In their Basis of Claim Forms and in the principal claimant’s testimony, the claimant provided in detail regarding a number of incidences of discrimination in Hungary which the panel would summarise.

[9]       The claimant has around a grade [XXX] education, which she testified was the result of discriminatory attitudes towards Roma students in school and was not able to continue.

[10]     The claimant testified how her three children also experienced discrimination in school because of their Roma ethnicity. The claimant testified about housing problems in Hungary and visits from the Children’s Aid Society in Hungary. The claimant testified how unpaid debts led to the water and electricity being disconnected to the house and a visit from the Children’s Aid Society over the conditions with her children.

[11]     The claimant had testified how she had moved into this house which was her ex-husband’s around the year 2000. The claimant testified how after the visit from Children’s Aid Society, she moved into a side cabin by her parent’s house and also talked about her divorce from her ex-husband around the same time. The claimant testified about the side cabin not having proper running water or bathroom facilities.

[12]     She indicated how the Children’s Aid Society came to see her again and that she had to move in with the parents of her current common-law partner. The claimant testified how the Children’s Aid Society followed up with another visit and indicated that that house was too small for her and all the children to live in. The claimant described how she tried to find housing to rent but was turned away due to the number of children she had and also because of her Roma ethnicity. Claimant testified about the Children’s Aid Society threatening to take away her children and that being the main reason for fleeing Hungary.

[13]     The claimant also testified about her attempts to obtain employment, but how she was only able to find temporary work under the table because of her Roma identity.

[14]     The claimant spoke about not receiving proper medical treatment and suffering from an infection from a caesarean section delivery.

[15]     The claimant also testified about her common-law partner and her son being attacked by ultranationalist Hungarians by bus stop. The panel found the claimant’s testimonies to be credible and lacking in embellishment.

[16]     The panel did have concerns regarding the claimant’s testimony regarding the auction of her ex­ husband’s house after their divorce, which the claimant would have been entitled to half of the profits of the sale. The claimant testified that she did not know what happened to the house after speaking to the executor and whether it had been auctioned off. The claimant did not follow up again about the matter despite having the phone number and address for the person responsible for this sale, and did not provide any further documentation regarding the proceedings and sale of the house.

[17]     The panel finds the claimant’s testimony regarding the sale not credible as the panel finds the claimant would have sought further information on profits that she would have or might have been able to receive or even to further establish this claim. However, the panel finds that the concerns with the auction or sale of the house do not negate the panel’s other findings where the testimony and evidence were persuasive in showing that the claimants have experienced serious, systemic and repetitive discrimination.

[18]     The panel finds cumulatively that the discrimination the claimants faced including in areas of education, employment, housing and health care, that they have experienced discrimination rising to the level of persecution in Hungary.

[19]     There is also evidence to suggest State protection has not been adequately available to the claimants. The country documentation for Hungary is broadly consistent with what the claimant has indicated will happen to them. The National Documentation Package for Hungary indicates that Roma experienced widespread discrimination in housing, employment, education and treatment and accessing health care. Based on the claimant’s testimony, the panel finds that there has been systematic societal discrimination against the claimants being Roma which affected their access to adequate education, health care and employment.

[20]     Regarding State protection, though Hungary is a functioning democracy and is a member of State of the European Union and though the documentary evidence tells me that Hungary is attempting to make changes to improve the situation for Roma, serious problems remain today.

[21]     Based on these country conditions and based on the claimant’s testimony, which the panel has found to be credible, the panel is satisfied that State protection would neither be adequate or forthcoming. There are multiple instances recorded of Roma individuals seeking protection and being subjected to racist or discriminatory actions by police. The panel finds that claimant’s own actions and failing to seek out State protection are reasonably explained.

[22]     The panel also finds that there is no internal flight alternative available to the claimants as the problems of discrimination and the response by the police and authorities seem to be nationwide.

[23]     Having considered all of the evidence, the panel finds that [XXX], [XXX], [XXX], [XXX] and [XXX] are Convention refugees and have established a serious risk of persecution, and the panel accepts their claim.

[24]     I will now allow the other members to indicate whether or not they concur with the panel’s decision.

[25]     DANIEL MCKEOWN: I concur.

[26]     KATRINA PIKE: I concur, but for slightly different reasons that I will now give.

[27]     Well, I broadly concur with the reasons of my colleagues though different from their finding in one important regard.

[28]     I find that you did not face the issues that you put forward in terms of housing and child protective services before you left Hungary.

[29]     You owned, madam, a home in Hungary. The preponderance of the evidence before me, I find, supports that you continue to live in that home. Your ID documents continue to state that you had that as your address. When you came to Canada, you have listed that as your address, and you provided no documentary evidence to support that you ever lived anywhere else.

[30]     In addition, as noted by my colleagues, you provided one document related to the sale of that home. It showed that the sale did not occur. Despite having the specific contact information for someone intimately involved in that sale, you did not provide any further evidence to support any other aspect of that sale.

[31]     And so on that important point, I do find that the evidence doesn’t support your allegations. However, on a forward-looking basis, I do find that the evidence that you have provided that is credible does support that your housing situation going forward would be precarious given the attempt to sell of the home to recover debt.

[32]     The other evidence you provided today with regard to what you faced as Roma in education and work and with regard to experiencing racist incidents was credible, as it was internally consistent and consistent with the broader country documentation. You are all likely to experience discrimination in housing going forward given the country documentation.

[33]     So, I do agree with the reasons put forward by my colleagues regarding how and why the evidence supports that given what you face upon return to Hungary, you do face persecution, as well as their reasons for why there is no State protection or internal flight alternative available to you.

[34]     MEMBER: Thank you.

[35]     So, that concludes the decision.

———- REASONS CONCLUDED ———-

Categories
All Countries Hungary

2019 RLLR 47

Citation: 2019 RLLR 47
Tribunal: Refugee Protection Division
Date of Decision: March 21, 2019
Panel: B. Popatia
Counsel for the claimant(s): Vanessa M. Leigh
Country: Hungary
RPD Number: TB6-18781
ATIP Number: A-2020-01274
ATIP Pages: 000050-000054


[1]       MEMBER: [XXX] you are a citizen of Hungary who claims Convention refugee status and refugee protection in Canada based on your alleged well-founded fear of persecution in Hungary for Convention reasons and the alleged risk there to your life risk of cruel and unusual treatment, or danger of torture.

[2]       You state that you are at risk of serious harm in Hungary at the hands of various agents of persecution based on your Roma ethnicity, female gender, young age, and family status. You allege that were you to return to Hungary you would continue to experience serious harm without the prospect of effective state protection there.

[3]       I determine you to be a Convention refugee. In my view there has been supplied sufficient reliable evidence on which to find that you have a well-founded fear of persecution in Hungary for Convention reasons.

[4]       It has been established that there is more than a mere possibility that were you to return to Hungary you would experience the serious harm of persecution, either cumulatively or in isolation, harm that would continue to have on you a substantially prejudicial effect, physically or morally.

[5]       I am satisfied that there has been supplied clear and convincing confirmation of the state’s inability or unwillingness to protect you based on your particular circumstances and prevailing country conditions.

Analysis

Identity

[6]       I am satisfied that you have the personal, national, ethnic, gender and other identity alleged in the claim. You came to Canada with family and made a refugee claim within weeks of your arrival. You testified in the Hungarian language through an interpreter at the hearing. You provided extensive oral testimony, written documentation and allegations in an affidavit and in your Basis of Claim form that credibly situates you within a Hungarian context.

[7]       You state that with the exception of a short period of time in Germany to visit a close family member you have lived only in Hungary and Canada. You came to Canada on your own Hungarian travel document that was issued in 2016. A copy of that document is before me and at the Port of Entry and at the time that you made your refugee claim inland, there does not appear to have been any concern about your nationality as a Hungarian citizen. Extensive personal documentation has also been filed from Hungary.

[8]       I’m also satisfied that your Roma background has been established on the balance of probabilities. Here too the testimony and written declarations you have provided situate you within a reliable Roma context.

[9]       You have stated that while you don’t know or understand how and why you were identified as a Roma, you testified that it could be because of your dark or brown skin even though you stated that it is not that brown.  It is clear, however, that you have been closely associated with Roma persons, including close family members and that you have experienced individual and collective mistreatment, likely based on your Roma ethnicity and at times because of that ethnicity and your female gender and young age. You stated that when a close family member was mistreated, it was as if you were being abused.

[10]     You’ve conceded that you did not know the sub-group of Roma that either your mother or father belonged to but stated that they both have Roma background. You also testified that a large number of your family members have come to Canada and somehow or the other have received permanent status in Canada.

[11]     Your claim was made with your father and your elder brother. Your father’s claim was disjoined from yours because you were alleging serious harm in Hungary on grounds beyond your ethnic background and that it could be uncomfortable and difficult for you to participate in your hearing with your father present. That request was granted.

[12]     You testified about your education and stated that you got to grade [XXX] but because you did not complete one of the final exams, that having to do with language and literature, you would be unable to continue your education in Hungary. While this may have limited basis, I do accept that based on your own personal mistreatment over many years throughout grade school, your family economic and social experience, and other factors, it would be impracticable for you to expect that you would be able to continue your education in Hungary, at least at the university level.

[13]     You stated that you believed that your literature teacher was racist and anti-Roma and did not permit you to write the final exam even though a fellow student, a non-Rome was permitted to sit the final exam despite absence for about half the school year.

[14]     When counsel asked you if you had been sexually harassed in Hungary you responded affirmatively. It was deemed unnecessary to have you elaborate on that in oral testimony.

[15]     I have your written declarations and based on my assessment of your credibility, your identity and other aspects of your claim throughout the hearing, I’m satisfied that more likely than not you have had the gender-based mistreatment alleged.

[16]     Your residential identity is also compelling. You testified that on two occasions about a year apart, you, your father and your elder brother were evicted. You testified that your nuclear family has never owned any property in Hungary and that you have only rented accommodation from the city. In your written declarations you have cited at least three or four residential addresses in and around Budapest and you confirmed those street addresses when you gave testimony in the hearing.

[17]     You stated that local authorities relocated you from your rental accommodation, promising to allow you to return once the renovations were concluded, but neither you nor any other Roma family were permitted to go back to that renovated building.

[18]     You were then evicted from the other building that you had been relocated to and at that time you father, having an interest in fishing, lived in a tent with your elder brother beside the lake. You moved in for a period of time with a friend of yours you described as your best friend. You stated spontaneously that this friend was non-Roma.

[19]     You testified that Roma experience mistreatment in the health care system and while your own experience in the health care system appears to have been more positive most times, at least based on your own testimony, you did concede that that would be one of the reasons for you to fear returning to Hungary. If you were able to pay large amounts of money to physicians you would receive medical care but you stated and fear that if you were to return to Hungary based on your age and other circumstances you would not qualify for health and other social benefits.

[20]     You testified about your recreational life, street life, life on the street cars and stated that you had been mistreated by groups of racist men and that among incidents of mistreatment, that you and closely situated persons including family members experienced. Your elder brother was thrown off public transit and suffered a concussion but received no police help.

[21]     You testified that you fear the police themselves, the very agents one could rely on for protection. When asked why you had this fear you stated that they did not provide any material assistance to you or those you knew. On one occasion although a family member of your experienced mistreatment and made a police report, promises to keep you informed were not met by the police.

[22]     Years earlier a close relative experienced serious harm at the hands of her male partner. Despite repeated incidents by him against her, he was given merely a fine for all of that ordeal.

Credibility

[23]     I find that you have been a credible witness in the proceeding. You provided testimony spontaneously, directly and with the ring of truth. At times it contained extensive detail. Your testimony conformed with the written declarations in all material areas of the claim. I find that you did not embellish or exaggerate. These are the hallmarks of reliable testimony in my view.

[24]     You also maintained eye contact consistently and had a somber disposition in the hearing.

Objective basis

[25]     In my view there is a credible objective basis to your allegations. The country conditions documents from wide variety of sources, having no interest in the outcome of your proceeding, indicate that each of the forms of mistreatment you have referred to continues to impact Roma communities in Hungary and that Roma continue to experience serious forms of mistreatment, including discrimination, harassment, humiliation, marginalisation and exclusion in every sector of their civic lives: education, employment, housing, recreation, heath care.

[26]     Sources agree and you also stated in various ways, repeatedly throughout the hearing and in your written claim, that Roma experience serious personal insecurity. This is despite periods of serious efforts by the state to improve conditions for Roma and other national minorities in Hungary and to orient front line police officials and other state authorities on providing improved response and assistance to Roma communities and communities of national minorities in Hungary.

[27]     In view, although you fear serious physical harm were you to return to Hungary, such as from interactions with street groups, it is sufficient that you fear serious discrimination across the sectors of your civic life and there is a reliable objective basis to those fears. These social and economic risks are such that frontline police cannot be expected to provide protection against, and indeed, no state authority can provide immediate response for such conditions. Extensive social and political change would be required for greater security, in your case in particular.

[28]     In my view, were you to return to Hungary, there is more than a mere possibility that you would experience the serious harm of persecution cumulatively. There’s clear and convincing confirmation of the state’s inability or unwillingness to protect you. Accordingly I determine you to be a Convention refugee. The Division therefore accepts your claim.

[29]     That’s it for this hearing. Thank you, Mr. Interpreter.

[30]     INTERPRETER: Thank you.

[31]     MEMBER: Counsel. All the best to you, Ms. XXXX.

[32]     CLAIMANT: Thank you very much.

[33]     MEMBER: Off the record.

– – – DECISION CONCLUDED – – –

Categories
All Countries Bangladesh

2019 RLLR 42

Citation: 2019 RLLR 42
Tribunal: Refugee Protection Division
Date of Decision: April 26, 2019
Panel: Daniel Carens-Nedelsky
Country: Bangladesh
RPD Number: MB7-18164
Associated RPD Number: MB7-18193
ATIP Number: A-2020-01274 
ATIP Pages: 000012-000016


[1]       This is the decision for the claimant [XXX] and [XXX], under principal file number MB7-18164. I note for the record these claims were initially joined with that of the minor claimant [XXX] (phonetic) [XXX]. Immediately prior to rendering my decision, the claimants withdrew the claim, as he is a US citizen. I have considered your testimony and the documents you have provided, and I am ready to render my decision orally. You are claiming to be citizens of Bangladesh and are claiming refugee protection pursuant to sections 96 and 97 sub 1 of the Immigration and Refugee Protection Act.

[2]       BY THE INTERPRETER:

96 and… ?

[3]       BY THE PANEL:

97 sub 1.

DETERMINATION

[4]       I find that you are “Convention refugees” for the following reasons.

ALLEGATIONS

[5]       Your full allegations are set out in your Basis of Claim forms. In brief, you fear persecution because of Mr. XXXX status as a Bihari. You have faced discrimination through much of your life because you are a Bihari, or a stranded Pakistani. This discrimination reached a tipping point when members of an Awami League Cadre began extorting you for money. They assaulted you multiple times, and ultimately kidnapped your wife and child, during which time you, Madam, were treated very terribly. After this, they continued to threaten you and you sought refuge in another part of your country, but the threats continued, making you realize you would not be safe anywhere in Bangladesh and sought Canada’s protection.

ANALYSIS

IDENTITY

[6]       I find on a balance of probabilities that your personal identity and identity as nationals of Bangladesh, have been established through your testimony and your documents, in particular your Bangladeshi passports.

CREDIBILITY

[7]       There were no significant omissions, errors, or contradictions in your testimony and you both testified in a spontaneous and forthcoming manner. I therefore accept that events have occurred as you allege. Sir, you testified credibly about your experience as a Bihari and the discrimination you faced. You testified in detail about a couple of the assaults you received from the Awami League, including who attacked you, where they attacked you, what they looked like, and what you did after you were attacked. Your wife credibly testified on how she met you, about what it was like to move into the neighbourhood where you lived, and why she felt unsafe there. You supported your testimony with a number of documents, including hospital and… hospital reports corroborating your claim, police reports you filed, a number of documents showing your parents’ and your status as a Bihari, psychological reports of your wife following her traumatic events, and affidavits from friends and family. I note there is…  was a minor inconsistency between the letter that your friend wrote in support of your testimony and your testimony and your Basis of Claim form. You explained part of this discrepancy, and given your otherwise wholly credible testimony and well-supported documenting evidence, I do not find that this minor inconsistency undermines your credibility. Based on your credible testimony, I find that you have a subjective fear of returning to Bangladesh.

NEXUS

[8]      I find that the persecution, you Sir, face has a nexus to the Convention due to your membership in a particular social group, specifically as a Bihari. And, Madam, I find that you have a nexus to the Convention also as a member of a particular social group, in this case as a woman fearing gender-based violence as well as being… as well as being targeted for being the family member of an individual facing persecution. In this case, for marrying a Bihari.

OBJECTIVE BASIS

[9]       The country condition documents support your allegation that Biharis face persecution in Bangladesh. Tab 1.15 of the National Documentation Package, states that Bihari tend to live in ghettos, that the government sees them as an enemy, and that…  and discusses that they only recently received citizenship in Bangladesh due to a Supreme Court decision. Tab 1.17 of the National Documentation Package notes that following independence, many Biharis faced reprisal including violence, that laws intended to manage properties caused many Biharis to lose their possessions and forced them into camps, and that many Biharis have reported difficulties obtaining passports as well as jobs in government. Item 9.3 of the National Documentation Package notes that in 2014, nine Biharis were burned alive and one killed by police shots, and that the first response of law enforcement was to pick up seven local Biharis

[10]     BY THE INTERPRETER:

Nine or seven, Sir?

[11]     BY THE PANEL:

Seven. And, that calls to bring the allegedly involved local Awami League leaders to justice remained unheeded. You also supported newspaper articles referring to these events. Based on this evidence, I find that there is an objective basis for your fear.

STATE PROTECTION

[12]     The individuals you fear have a connection with the government. One of those you fear is the nephew of a local Awami League member. You provided some documentary support of this with an online post that specifically mentions this member of parliament in relation to these events. And, you sought the protection of police on a number of occasions, and found that they were either unable or unwilling to help you as the persecution remained constant. In these circumstances, I find that adequate State protection would not be forthcoming to you if you were to return.

INTERNAL FLIGHT ALTERNATIVE

[13]     You credibly testified that you sought safe haven in Chittagong after the kidnapping of your wife and son, but that the (inaudible) discovered you there and threatened the friend you were staying with. You… you fear you will be found anywhere you go in Bangladesh, and you will be located because you will be forced to show your I.D. card that will also show your parents’ status. Given that your agents of persecution have already found you when you sought to flee quite far away from where you had lived, that they have a connection to the ruling party, and that there is a serious possibility you will face the same discrimination for being a Bihari anywhere you go in Bangladesh, I find that you do not have an internal flight alternative available to you.

CONCLUSION

[14]     Based on the totality of the evidence, I find that you face more than a mere possibility of persecution for the nexus reasons discussed above. I therefore find that you are “Convention refugees”. Your claims are therefore accepted. Thank you both for your testimony.