2022 RLLR 18

2022 RLLR 18 Citation: 2022 RLLR 18 Tribunal: Refugee Protection Division Date of Decision: February 10, 2022 Panel: Kay Scorer Counsel for the Claimant(s): Ramesh Karkee Country: Nepal RPD Number: VC1-07330 Associated RPD Number(s): N/A ATIP Number: A-2022-01960 ATIP Pages: N/A DECISION [1] MEMBER: I have considered your testimony and the other evidence before me and I am prepared to provide you with my decision orally. These are the reasons for the decision in the claim of XXXX XXXX, a citizen of Nepal, who is seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons today, I have considered and applied the Chairperson’s Guidelines on women refugee claimants fearing gender related persecution. Allegations [2] The claimant’s allegations are contained in full in her Basis of Claim form and very detailed narrative which can be found in Exhibit 2. Summarized only briefly, the claimant alleges that she is at risk of persecution in Nepal from persons associated or affiliated with Maoist groups because of her involvement with and support of the Nepal Women’s Association which is women network of the Nepali Congress Party. The claimant is a known women’s rights activist in Nepal. The claimant alleges that she has been threatened, extorted and physically attacked by Maoist persons in the past and that the attackers continue to pursue her in that country. Determination [3] I find the claimant is a Convention refugee. I find the claimant has established her claim has a nexus to the Convention ground of political opinion. I have therefore assessed this claim under section 96 of the Act. ANALYSIS Identity [4] I find the claimant has established her identity on a balance of probabilities by her testimony and by the copy of her passport which can be found in Exhibit 1. Credibility [5] Pursuant to the Maldonado principle, the claimant benefits from a presumption that her allegations are true. In this case, I have no reason to doubt the truthfulness of the claimant. She testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me. She was detailed, passionate, consistent, forthcoming. Overall, I found the claimant to be a compelling witness and I believe what she has alleged. [6] The claimant also supported her allegations with significant evidence, including plenty of identification documents, certificates for work and promoting the rights of women in Nepal and for her involvement in politics, photographs of the claimant at political events including events where she was receiving honours, membership documents for the Women Network of the Nepali Congress Party, a copy of a press release by the Nepali Congress Party relating to the claimant’s work in Nepali, a threat letter from a communist party of Nepal, police report, medical records, and a supporting statement from the claimant’s husband. I have no reason to doubt the authenticity of these documents. I assign them significant weight as they help establish the material elements of the claimant’s allegations, namely her political opinion and the risks she faces in Nepal on the basis of this opinion. [7] I have considered whether the claimant’s failure to claim in Canada and her subsequent twice return to Nepal undermines the credibility of the claimant’s subjective fear and I find it does not. The claimant made two trips to Canada before her current trip where she made her claim for protection. She first arrived in Canada in XXXX 2018 and returned to Nepal in XXXX 2018. On the second trip, she arrived in Canada in XXXX 2019 and again returned to Nepal in XXXX 2020. The claimant finally fled for the last time in XXXX 2020. [8] The claimant testified that her first return was because her visa had run out in Canada and she was hopeful the situation would have tempered in Nepal after a period of time had passed. She states she was hopeful because there had been no indications that Maoist persons had been pursuing her since leaving Nepal. Further, the claimant testified that her second return was because her husband had been in a serious motorcycle accident and she had no choice but to return to care for him and her family. She also testified to having read about Maoist members being arrested by the state. During the last trip to Nepal, the claimant took efforts to minimize her movements. Unfortunately, it was during this second trip when the claimant herself was viciously assaulted and hospitalized by Maoist persons. [9] While it is disappointing that the claimant would return to a country that she fears, I find that ultimately the evidence before me does establish on a balance that the claimant subjectively fears a return to Nepal and that she has been targeted by Maoist factions for her political activism. On a balance of probabilities and in considering the circumstances of this case, I find it reasonable that the claimant would be hopeful that the situation would become safer in Nepal. I also accept that she believed, however misplaced, that her risk had subsided at the time that she returned for the first time. Obviously, for me it’s clear that she’s passionate about the work she does in Nepal. I also find that in the face of an exceptional family emergency, her return to care for her husband and her family was reasonable. I do not make a negative inference against the claimant for her failure to claim in Canada earlier or for her return to Nepal in light of the circumstances of this case. [10] I find the claimant has established her subjective fear and risk profile on a balance of probabilities. I find the claimant is a political activist in Nepal and a supporter of the Women’s Association and vis-a-vie the Congress Party. I find she has a higher profile, given she has been publicly acknowledged for her political work. I find she has been targeted by Maoist persons threatened, assaulted and extorted. Further, I find these agents of persecution do continue to pursue and threaten the claimant in Nepal and that she fears persecution by these groups should she return. Objective Basis [11] The country condition evidence is outlined in the National Documentation Package (NDP) which is in Exhibit 3 and supports the claimant’s allegations regarding the treatment of political members of the Nepal Congress such as the claimant herself. In Item 4.7 of the NDP, sources report that factions of Maoists described as a dissenting splinter group from the ruling Maoist party engaged in a pattern of kidnapping and extortion against various targets. Item 4.6 of the NDP likewise details instances of violence and extortion committed by a number of groups in Nepal, including the youth communist league which the claimant spoke about today and the Nepal Communist Party of Maoist individuals. It goes on to note that political pressure and corruption means that law enforcement is largely not able to serve the public or protect them. These attacks were often against supporters of the Nepali Congress Party like the claimant herself. [12] According to Item 4.4 of the NDP, political incidents were the primary driver of violent incidents in Nepal and also made up the majority of non-violent incidents. This report notes activities by Maoist splinter groups to attempt to disrupt the election processes. Moreover, as of 2019, the situation in Nepal is growing worse with an increase of both violent and non-violence incidents. [13] According to an RIR at Item 4.7 of the NDP, a hard line communist faction of Maoists have been involved in kidnapping and extortion. The faction of Biplav Maoists make coercive demands for donation. The extent is under-reported as victims do not seek — often do not seek the assistance of police out of fear of a violent backlash from the Maoist groups. Party cadres have made threatening visits, phone calls and sent letters and texts seeking funds. Biplav Maoists have also captured land from civilians and companies. [14] Given these country conditions and how they do corroborate material elements of the claimant’s allegations herself, I find the claimant’s fear of persecution because of her political opinion has an objective basis and is well-founded and forward facing. State Protection [15] There is a presumption that countries can protect their citizens unless there’s clear and convincing evidence otherwise. In this case, based on the aforementioned objective evidence, I find that there is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection. As another example, Item 1.6 of the NDP states “police effectiveness is limited by a lack of resources, corruption, nepotism and a culture of impunity, particularly among low-level officers. Nepali police agencies are hindered by a lack of adequate transportation, training and equipment”. NDP Item 1.6 also states that many Nepalese have only limited access to justice and that courts are vulnerable to political pressure, bribery and intimidation. [16] In light of the circumstances and based on the objective evidence, I find that the adequate state protection would not be forthcoming to the claimant in Nepal. I note that the claimant did seek state protection on a number of occasions and the country condition evidence that I’ve already cited applied in her case as well. I find the presumption of state protection therefore has been rebutted. Internal Flight Alternative [17] I have also considered whether there is a viable Internal Flight Alternative available to this claimant. Based on the evidence in this file including a lack of reasonable state protection persisting throughout the country and the Maoist influence that continues also throughout the country, I find the claimant faces a serious possibility of persecution throughout Nepal. Further, I find the agents of persecution have demonstrated an ongoing motivation to continue to pursue this claimant in Nepal. I find, therefore, that she does not have a viable IFA in that country. CONCLUSION [18] Based on the foregoing analysis, I find the claimant is a Convention refugee and I accept her claim. ——— REASONS CONCLUDED ———