Citation: 2019 RLLR 89
Tribunal: Refugee Protection Division
Date of Decision: March 8, 2019
Panel: L. Colle
Counsel for the claimant(s): Ali Yusuf
Country: Afghanistan
RPD Number: TB7-25153
Associated RPD Numbers: TB7-25154, TB7-25155, TB7-25156, TB7-25157
ATIP Number: A-2020-01459
ATIP Pages: 000043-000047
DECISION
[1] MEMBER: I have considered your testimony and the other evidence in the case and I’m ready to render my decision orally. I would like to add that in event that written reasons are issued, a written form of these reasons may be edited for spelling, syntax, and grammar, and references to the applicable case law and documentary evidence may also be included.
[2] The claimant is Ms [XXX]. Claims to be a citizen of Afghanistan and is claiming refugee protection pursuant to subsections 96 and 97(1) of the Immigration and Refugee Protection Act.
[3] She is joined by four minor claimants her children, all with the last name [XXX] and whose names are [XXX], and you are appointed as the designated representative to the four minor age children whom I saw in the video conference at the last sitting.
[4] In deciding your claim I’ve also considered the guideline on minor refugee claims. That’s the guideline number three and also on the guideline four on women refugee claimants fearing gender related persecution.
[5] I find that all five of you are Convention refugees for the following reasons.
[6] You allege that you fear returning for two reasons to Afghanistan. One for the security situation in Afghanistan, the (inaudible) and the current war with the Taliban and also that you and the minor claimants would be targeted because your husband has been a high ranking official with the Afghan Government.
[7] Now, I note that the claimant’s husband Mr. [XXX](ph) [XXX], testified at the last sitting on March 6th and testified via phone from Kabul.
[8] And also, you explained that you … your husband was posted in Afghanistan. Not in Afghanistan but in Brussels, Belgium from [XXX] 2016 or about [XXX] 2017. You went together, a family vacation in Washington State on the Canadian border.
[9] You had previously discussed with your husband that you wanted to claim asylum in Belgium but he would not release the passports of your children, and that he also disagreed. He did not want you to cross the border ’cause he felt that it would be an illegal crossing and it would be not proper for you and the minor claimants cross the Canadian border to make refugee claims.
[10] Across … but you did cross in [XXX] 2017 made … and made refugee claims, and you spoke to your husband that day by phone and he was upset. But or … as … as we passed into 2018 and 2019 since then you’ve reconciled with your husband.
[11] Now, what happened before this reconciliation became apparent the Minister representative did not have information that the panel has now and … today … and first brought up two issues that they wanted to intervene under Articles 1(f)(b)(c). First under the United Nations Convention relating to the status of refugee, and l(f)(c) as well.
[12] Now, under 1(f)(b) the Minister believed that there were serious reason for concern that the claimant has committed … committed an act of abduction as described in Section 283 of the Criminal Code. Then under 1(f)(c) the Minister believed that there were serious reasons for considering that the claimant had committed acts contrary to the purposes and principles of the United Nations. Specifically, the United Nations Convention on the rights of the child and, however, since there was no consent letter from your husband on file.
[13] Subsequent to that on … the Minister’s representative wrote another letter on March 5th, 2019. That is Mr. Patrick Klauss, K-L-A-U-S-S, a hearings officer with the Canada Border Services Agency, and said the Minister is withdrawing their participation from … from the refugee hearing.
[14] The Minister did conduct an investigation that did not yield any adverse information. The Minister also contacted background checks via the RCMP, and they did not indicate that the minor children had been reported missing or abducted, and also … Minister’s rep also added a Hague Application has also not been filed with regards to the minor children. Hague is spelling, H-A-G-U-E.
[15] All right. And it said further, the Minister is of the understanding that the husband has now granted permission for his children to be in Canada.
[16] Now, the Minister added that the Minister’s aware of the possibility of the l(f)(b) exclusion should … could also be considered by they panel as the claimant’s action could potentially fall within the ambit, A-M-B-I-T, of Section 283 of the Criminal Code of Canada.
[17] However, the panel has considered Section 283 of the Criminal Code and conducted a teleconference with the claimant’s husband from Kabul on Wednesday March the 6th, and the claimant’s husband gave credible testimony. Also, provided important dates including birthdates, marriage dates for the children and the claimant. His testimony was also very consistent with the claimant’s Basis of Claim Form, and he gave credible and very, very detailed information about the security situation in Afghanistan and in Kabul.
[18] Now, I’ll go into that again, but I also noted that through counsel we also received a written consent letter Exhibit 13 from the claimant’s husband as well as the verbal consent. So, I find that given the Minister’s new position examining Criminal Code Section 283 the … the claimant does not fall under the exclusions Articles either l(f)(b) or l(f)(c). And so, I have no reasons to believe … there’s no evidence that those article … exclusion Articles are in play in this case.
[19] Now, your identities, all your identities as nationals of Afghanistan is established by your testimony in Dari and also the supporting documentation including the certified true copies of your Afghan passports in Exhibit 1.
[20] All right. I found you and your husband as a witness are … to be credible witness and … witnesses and therefore I believe what you have alleged in support of your claims. You both testified in a straightforward manner and there are no relevant inconsistencies in either of your testimony or contradictions between your testimony and the other evidence before me such as country documents, personal documents, or the Basis of Claim Forms.
[21] Now, the … your husband testified that he was a foreign … in the foreign service and is seeking a new position either in the securities … internal security or the Defense Department in Afghanistan.
[22] He gave a candid assessment of the security situation in Afghanistan today. At least 40 to 50 percent of the territory of Afghanistan is controlled by the Taliban. The … he explained the difficulties in containing the Taliban including the porous borders and other factors that made it very documents to control this insurgency.
[23] He also explained as an adult. He’s about 45-years-old. His … he lives with his mother and his mother is afraid for his life and fears … doesn’t want him to go out definitely in the evening time at all, to stay close to home. And your husband also said that … that daily security precautions have to be taken. There’d have to be frequent changes in departures and entrances into the house from different situations. For … for example, if someone … if he were to work again he’d have to change his route daily or almost two times a week, biweekly to be safe.
[24] So … so, I find that in your particular case given that you are family members of a former diplomat with the Afghan Government, that State protection would not be reasonably forthcoming in this particular case. Given that you and your family members the minor claimants would be high valued targets of the Taliban since you are, since you would be targeted because of your family membership and your … your husband’s relatively high profile.
[25] I … I also considered Exhibit 7 the latest National Documentation Package for Afghanistan from February 28, 2019 and note the tenuous security situation. The State is willing to provide protection but in many instances is unable to do so.
[26] Given the targeted attacks on women and children by the Taliban, for … for example, I see that in the Department of State report for Afghanistan in Section 2.1 and other human rights documents in the Index.
[27] Now, going back briefly credibility, I … I accept your explanation why you didn’t claim in Belgium. You were under your husband’s … well, he had the passports and wouldn’t let you even try to claim there. And … and in July 2017 there was again, you were at … disagreement about what to do with yourself and the children, and you took action to … because of your fear of returning to Afghanistan to make claims in Canada.
[28] And I must say also Mr. [XXX] gave phenomenally detailed information about the security situation in Afghanistan and he obviously, on a balance of probabilities, was a diplomat, has been involved with the Afghan Government.
[29] Now, I’ve considered whether a viable internal flight alternative exits for you in Kabul. But on the evidence before me I find that there is a serious possibility of persecution throughout Afghanistan including Kabul if you were to return to Afghanistan.
[30] Now, I considered the fact your husband is in Kabul, but he basically is semi-hiding, and the security situation has outlined in the National Documentation Package including the Department of State report is very tenuous right now. That’s why I find that there’s more than a mere possibility of persecution should you return to Kabul since you and the children would be obvious and visible targets of … of blood thirsty Taliban forces.
[31] Therefore, for all those reasons I conclude all five of you are Convention refugees and therefore accept your claims.
[32] The hearing … okay. Thank you, Mr. Yusuf, and Mr. Noor, here in Toronto. Thank you.
[33] This hearing is now concluded.
[34] CLAIMANT: Thank you.
[35] INTERPRETER: Thank you very much, Mr. Member.
[36] MEMBER: Okay, bye-bye.
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