2024 RLLR 35

Citation: 2024 RLLR 35
Tribunal: Refugee Protection Division
Date of Decision: July 15, 2024
Panel: R. Jackson
Counsel for the Claimant(s): Adela Crossley
Country: Democratic Republic of Congo
RPD Number: TC1-13837
Associated RPD Number(s): N/A
ATIP Number: A-2025-00128
ATIP Pages: N/A

REASONS FOR DECISION

[1] XXXX XXXX XXXX is a citizen of the Democratic Republic of Congo (DRC) who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (Guideline 4). I considered that various factors may affect a claimant’s ability to provide evidence, such as the sensitive nature of the allegations, cross-cultural misunderstandings, social, religious, and economic differences. These Guidelines also state that gender is an innate characteristic, and it may form a particular social group, and I considered whether this applies to the circumstances of the claimant.

ALLEGATIONS

[3] The claimant alleges she was targeted for sexual assault and threats by XXXX XXXX because she refused to XXXX XXXX XXXX. She fears harm from the government.

DETERMINATION

[4] I find that the claimant is a Convention refugee as she has established a serious possibility of persecution on account of her membership in a particular social group of based on her gender, as a woman who has experienced gender-based violence and who fears such violence in the future.

INTERLOCUTORY ISSUES

[5] The claimant first appeared before the Board in June 2023, with a different Board Member and a different interpreter. Therefore, the first sitting of the hearing for this claim actually took place in November 2023 with the current Board Member. In 2023 the XXXX report indicated that the claimant was stressed and may need time to compose herself during the hearing when recounting XXXX memories, and as such breaks were taken. However, the claimant was quite upset at the conclusion of that sitting, at which time counsel left abruptly. Prior to the July 2024 sitting, counsel submitted an application to appoint the claimant’s aunt as designated representative (DR) because the claimant was unable to appreciate the nature of the proceedings. More specifically, a new XXXX report was provided indicating that the claimant’s XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX The application was accepted, and the DR was appointed.

[6] Prior to and at the second sitting, counsel referred to the “Vulnerable Persons” Guideline 8, but the panel notes that the Chairperson’s Guideline 8 has been changed to “Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations.” No formal applications were made for procedural accommodations, but informal requests were made through the DR to acknowledge that the claimant may need more time to answer questions and may need breaks. The panel provided the claimant as much time as needed to answer questions, and breaks were taken.

ANALYSIS

Identity

[7] The claimant’s identity was established based on her passport.

Credibility

[8] Referring to Guidelines 4 and 8, the panel notes that there were barriers to trauma-informed adjudication for this claim, because the allegations of sexual assault by hospital administrators were not clearly stated in the Basis of Claim (BOC); they were referred to as “exploitation” in a BOC amendment (page 72 of claimant’s disclosures) and general statements about the treatment of women “like” the claimant in the Congo were made. Thus, the panel was required to ask the claimant clarifying questions, which, although the panel ensured not to ask any unnecessary questions, appeared to have brought up traumatic memories for the claimant.

[9] At the second sitting, the DR explained that sometimes the claimant XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The claimant currently resides with the DR and takes some medication to XXXX XXXX XXXX XXXX XXXX.

[10] The claimant had difficulty testifying, some of which may be attributable to her XXXX XXXX situation. Guideline 4, particularly section 7, explains that sometimes trauma may interfere with the recollection of events. However, some of her allegations were deemed not credible due to problems with the documents she presented as evidence.

Avis de recherche (wanted notice) likely fraudulent

[11] The panel places no weight on the Avis de recherche (page 76 of claimant’s disclosures) document purporting to show that the state security services (ANR) wanted to apprehend/question the claimant in 2020. The claimant’s testimony at the first and second sitting was inconsistent as to when she heard that she was wanted (2020 or 2021). However, the problems with the document do not solely arise from when she heard about it, but rather the information on the face of the document. Reasonably, if the security services of the DRC wanted to apprehend her in XXXX 2020, as stated on the document, they could easily have done so at her workplace where she continued to work until XXXX 2020, or at her home address, which her workplace would have had information about.

[12] Moreover, this document states that it would be copied to “INTERPOOL”. Counsel submitted that it’s possible that these are unintentional mistakes. Even if the panel took this as a simple typographical error, it is not likely that the security services would have informed Interpol of the claimant’s being wanted, since her allegation is that they wanted to silence or punish her for XXXX XXXX XXXX XXXX. Reasonably, if Interpol had interacted with her, she could have told them about the XXXX XXXX XXXX, thus exposing the fraud to the international law enforcement community.

[13] The claimant testified that the Avis de recherche was sent to her by her father. She showed the DHL courier envelope at the hearing, and when the name of the sender was revealed (not her father’s name), she stated that the person who sent it to her is an employee at her father’s business. But she could provide no testimony as to the nature of her father’s business. She testified that she had not seen this paper before coming to Canada; that a friend of her father’s had told her father in 2020 that she was wanted. While it may be that this employee of her father’s sent the Avis de recherche, that is insufficient under the circumstances to find that the document is authentic. In summary, as noted above, it does not make sense that the claimant was never actually apprehended by the ANR in 2020, or that they would have copied the wanted notice to Interpol, or that they would have misspelled Interpol as “Interpool.” More likely than not, the Avis de recherche is fraudulent.

[14] Due to the above findings regarding the Avis de recherche the panel finds that the claimant is not, and was not, wanted by DRC authorities.

Remaining supporting documents / letters, brief and/or vague

[15] The claimant provided a letter from her brother XXXX, indicating that the claimant had explained to him about the issues with XXXX XXXX. He did not provide details but said sometimes there was police interest in her and so her father had her leave the country. The claimant was able to confirm in her testimony that she had told her brother about the issues at the XXXX with respect to XXXX XXXX. Since the letter is vague about the police interest in the claimant, and the claimant was unable to provide testimony that the police or law enforcement officers ever interacted with her, the panel finds this letter is insufficient to establish that the claimant is of interest to authorities in the DRC.

[16] The letter from XXXX XXXX XXXX vaguely states that the claimant’s life is in danger and that other colleagues faced danger as well. The claimant testified that XXXX XXXX XXXX had similar problems with respect to the XXXX XXXX and that he had fled the DRC as a result. Having considered the content of XXXX XXXX XXXX’s letter, it generally reflects the claimant’s testimony about him. Thus, it does provide some credible evidence with respect to the claimant’s allegations of having problems with XXXX XXXX.

[17] The letter from the claimant’s friend XXXX is also vague. Letters from claimant’s father and mother do not provide details and do not explain how they know the information or what they personally witnessed. There was a letter from a friend, XXXX, but there was confusing testimony from the claimant about this person.

[18] An online post (page 99 of claimant’s disclosures) was provided about the claimant’s problems in the DRC, but it states that the claimant explained the situation to the rédaction of the website, and there do not appear to be any other sources consulted. At most, it establishes that the claimant provided her story to the writer.

[19] There were some other documents provided, but in summary, a clear picture of what happened to the claimant was not provided by the supporting evidence.

[20] The panel took into consideration the claimant’s XXXX XXXX challenges and, having considered the evidence as a whole, the panel finds that the claimant, more likely than not, was sexually assaulted by XXXX XXXX staff in the DRC. Athough a fraudulent document was presented about police involvement, in the present claim, the panel can set aside that allegation and still find the above-noted allegation to be credible, on a balance of probabilities. Based on the information before the panel, this may be a case where the claimant’s XXXX XXXX issues have created a barrier to obtaining accurate testimony. Although the panel does have reason to doubt her credibility, the DR’s witness testimony and the second XXXX report appear to indicate that the claimant is going through some kind of XXXX which occurred prior to her coming to Canada. Absent more information or evidence to the contrary, the panel accepts as credible the allegations about XXXX XXXX having harmed the claimant.

Well-Founded Fear of Persecution

[21] The documentary evidence in the National Documentation Package (NDP) points overwhelming to widespread gender-based violence against women, including forced marriages, domestic violence, and sexual violence. There is an abundance of country information in sections 5, and particularly in tabs 5.3, 5.4, 5.6, 5.7, and 5.11. Gender-based violence in the DRC is linked to certain vulnerability factors for women, such as lack of state protection, political instability, generalized violence, and lack of family support.

[22] According to the objective evidence, violence against women is alarmingly high and more frequent in recent years. Sexual violence is endemic even outside of conflict zones. Moreover, since the context of the COVID-19 pandemic, the situation for women has worsened. Cases of sexual and gender-based violence have reportedly increased dramatically across the country.

State Protection

[23] Item 5.3 of the NDP reports that victims of sexual violence in the DRC are unlikely to receive assistance in the justice system due to various factors such as excessive burden on the complainant (procedural and financial), corruption or intimidation by the rapist, and social stigma. Moreover, as noted above, many perpetrators of rape in the DRC are government actors such as members of security services.

[24] The presumption of state protection is rebutted.

[25] According to the documentary evidence, although there are laws that condemn gender violence, these laws are not effective, leading to impunity. Women have little access to justice. There are a number of barriers such as financial means, stigma, society, customs, traditions, the state’s inability to protect, as well as corruption. Therefore, the panel finds that there is clear and convincing evidence that the DRC is unable to provide adequate protection to the claimant in her particular circumstances.

Internal Flight Alternative

[26] Regarding an internal flight alternative, given all the documentary evidence that has been discussed, the situation for women with the claimant’s profile is the same across the country. Therefore, the claimant would face a serious possibility of persecution throughout the country.

CONCLUSION

[27] Having considered all of the above, it appears that the claimant does not have access to justice with respect to the sexual assaults she experienced in the past in the DRC. Moreover, her current mental condition would likely render her more vulnerable to similar assaults occurring on a forward-looking basis, given the prevalence of sexual assault in the DRC.

[28] Therefore, the claimant is a Convention refugee.

[29] Accordingly, the claim is accepted.

——— REASONS CONCLUDED ———