Category: Democratic Republic of Congo

All Countries Democratic Republic of Congo

2020 RLLR 6

Citation: 2020 RLLR 6
Tribunal: Refugee Protection Division
Date of Decision: February 13, 2020
Panel: Kristelle De Rop
Counsel for the Claimant(s): Russell L Kaplan
Country: Democratic Republic of Congo
RPD Number: MB7-18074
ATIP Number: A-2021-00540
ATIP Pages: 000037-000043

REASONS FOR DECISION

INTRODUCTION

[1] [XXX] (the claimant) is a citizen of the Democratic Republic of the Congo (DRC) and is claiming refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2] The claimant’s complete allegations are set out in his Basis of Claim Form (BOC Form).¹ The following is a short summary.

[3] The claimant alleges that he joined a not-for-profit organization (NGO) entitled Congo Handicap in [XXX] 2013 as a [XXX].

[4] The claimant alleges that the NGO’s goals are to advocate and stand up for persons with disabilities in South Kivu and to fight against all crimes, including rape.

[5] The claimant states that, on [XXX], 2017, he was summoned to the national intelligence agency office (ANR), where he was detained and criticized for his involvement in a report exposing [XXX] who allegedly committed rape.

[6] The claimant alleges that he fears he will be arrested again and killed should he return to his country as a result of his involvement in the NGO and in published reports exposing [XXX].

DETERMINATION

[7] For the reasons set out below, the panel concludes that the claimant is a Convention refugee by reason of his imputed political opinion as a result of his involvement in an NGO that exposed military officers for their crimes against persons with disabilities.

Identity

[8] The claimant’s identity was established to the panel’s satisfaction by means of a copy of his passport issued by the Congolese authorities filed on the record.²

ANALYSIS

Credibility

[9] The panel finds that the claimant was a credible witness. The panel did not identify any serious contradictions, omissions or inconsistencies that could not be reasonably explained during his testimony. The panel considers that the claimant gave credible testimony on the essential aspects of his claim. As a result, the panel believes that the claimant’s allegations in his BOC Form are truthful, on a balance of probabilities.

[10] The panel considers that the claimant gave credible testimony on his involvement and role in Congo Handicap and in reports exposing armed forces officers. The panel also considers that the claimant gave spontaneous and credible testimony on his and his parents’ detention at the ANR.

[11] The panel notes that the claimant submitted as evidence the following documents that corroborate his testimony: Congo Handicap membership card with proof of payment, [XXX] card, letters from the ANR, article from the awareness campaign held in [XXX] 2015, and a number of photographs taken at events related to his duties.³

[12] The claimant explained that, before his detention, he presented a detailed and complete dossier at his NGO’s quarterly meeting concerning cases of rape by officers in the DRC’s [XXX], the FARDC, including [XXX], [XXX], [XXX], [XXX] and [XXX]. He explained that his role in the NGO was to [XXX] in the community of persons with disabilities and to identify information likely to bring the culprits to justice.

[13] The claimant testified that [XXX] wanted to use him as a spy in his NGO and that he had an informer in his group and should be smart and accept the offer.

[14] While the claimant was already in Canada to attend a work-related conference, his brother called to inform him that a convoy of soldiers visited their home, that the soldiers were looking for him and that, after searching his room, they left with all his personal effects. The soldiers also took his parents away with them. After being detained for two days, his parents were released on a promise to report to the ANR every two weeks until the claimant returned home.

[15] The claimant testified that another report exposing cases of abuse and rape was supposed to be released when he returned from Canada in [XXX] and that the soldiers left with his information.

[16] The claimant also referred to the murder of Dr. [XXX]⁴ on [XXX], 2017. The claimant had worked with this [XXX] when persons with disabilities were raped and needed care. The claimant testified that the doctor’s cause of death was never disclosed. The claimant is convinced that the doctor was killed because of his involvement with victims and his possible possession of incriminating information regarding certain [XXX].

Change of circumstance

[17] At the hearing, the panel asked the claimant why he thought that he would be at risk should he return to the country, given the change in circumstances, namely, the election of the new president in January 2019. He explained that only the leader changed, but that all the rest remains unchanged. He stated, as an example, that the security service and police [XXX] remain the same. He added that the new president does not have a majority in either parliament or the serrate.

[18] The panel notes that, on December 30, 2018, Félix Tshisekedi, the leader of the UDPS party, was elected president. However, sources state that the transfer of real power is debatable. The former president Kabila is now Senator-for-Life, and his party won sweeping majorities in the parliament and provincial assemblies.⁵ Some contest the legitimacy of the elections.⁶ The post-election demonstrations turned violent, and the security forces responded with excessive force.⁷ The authorities are still being accused of political killings and arbitrary arrests. After Tshisekedi’s election, student demonstrations against power and water cuts and rising tuition fees led to an intervention in which the police shot and killed demonstrators.⁸

[19] The panel notes that the documentary evidence⁹ states that an [translation] “easing” of political tensions occurred. The same document states that the country had a [translation] “new openness,” that opposition radios reopened, that exiled politicians returned to the country and that political prisoners were released. However, the same evidence also states that, after the release of some political prisoners, human rights advocates were still waiting for the conditional release of the 700 prisoners who had been pardoned.¹⁰

[20] In light of the foregoing and in the claimant’s specific case, the panel concludes that the claimant would not be safe in the DRC, which remains unstable despite the recent change in government. The claimant stated that he would continue to face a risk since the same repressive structures remain in place and that, despite the change in leader, the situation remains unchanged. On the basis of the claimant’s testimony and the documentary evidence, the panel concludes that the claimant established that he faces a risk of persecution by reason of his imputed political opinion linked to his role and involvement in the NGO.

State protection

[21] In light of the objective evidence, the panel concludes that the presumption of state protection is rebutted. The claimant would not obtain adequate state protection in the DRC because the agents of persecution are part of the state.

[22] According to the objective documentary evidence, sources indicate that the state security forces, including the police, are undisciplined and corrupt.¹¹ They are often accused of arbitrary, political and extrajudicial killings.¹² State security forces are also accused of having weak leadership, low capacity and a lack of training and of engaging in extortion.¹³

[23] The panel concludes that the objective evidence constitutes clear and convincing evidence that rebuts the presumption of adequate state protection in the DRC for the claimant.

Internal flight alternative

[24] The panel also assessed whether the claimant had an internal flight alternative (IFA).

[25] In this case, the agents of persecution are state agents, namely, the Congolese government intelligence agency. According to the objective documentary evidence, people in situations similar to that of the claimant face the same difficulties throughout the country. The claimant has reason to fear the authorities because the police and military forces are present and in control throughout the country. The panel considers that the claimant would face a serious possibility of persecution throughout the DRC. As a result, the panel considers that it would be unreasonable to expect the claimant to return to the DRC.

[26] The panel therefore concludes that an IFA is not available to the claimant.

CONCLUSION

[27] In light of the foregoing and after reviewing all the evidence, the panel determines that the claimant, [XXX], has established that he faces a serious possibility of persecution in his country of origin, the DRC. Therefore, the refugee protection claim is allowed.

(signed) Kristelle De Rop

February 13, 2020

¹ Document 2 – Basis of Claim Form.
² Document 1 – Information package provided by the Canada Border Services Agency and/or Immigration, Refugees and Citizenship Canada, formerly Citizenship and Immigration Canada, Claimant’s Congolese passport.
³ Document 5 – Evidence submitted by the claimant (exhibits 1 to 14).
⁴ Document 5 – Exhibits 12 and 13 (articles concerning the death of Dr. [XXX]).
⁵ Document 3 – National Documentation Package (NDP), Congo, Democratic Republic of the (DRC), July 31, 2019, Tab 4.3: Democratic Republic a/Congo: Background and US. Relations. United States. Congressional Research Service. April 30, 2019.
⁶ Document 3 – NDP, DRC, Tab 4.11: DR Congo: Post-Election Killings Test New President. Human Rights Watch. February 14, 2019.
⁷ Idem.
⁸ Idem.
⁹ Document 3 – NDP, Tab 4.2.
¹⁰ Idem.
¹¹ Document 3 – NDP on the DRC, March 29, 2019, Tab 2.1: Democratic Republic of the Congo. Country Reports on Human Rights Practices for 2018. United States. Department of State. March 13, 2019.
¹² Idem.
¹³ Idem.

All Countries Democratic Republic of Congo

2020 RLLR 3

Citation: 2020 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: August 20, 2020
Panel: Anika Marcotte
Counsel for the Claimant(s): Nico Breed
Country: Democratic Republic of Congo
RPD Number: VB9-08742
Associated RPD Number(s): VB9-08743
ATIP Number: A-2021-00540
ATIP Pages: 000020-000027

REASONS FOR DECISION

[1] This is the decision of the Refugee Protection Division (RPD) in the claim of [XXX] as a citizen of Congo-Brazzaville and her minor child [XXX] who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the ” Act”).¹ The claimants’ minor son, [XXX], is a citizen of the United States (US). As such, his claim will be assessed against that country.

[2] At the start of the hearing, the principal claimant was designated as the representative for the minor claimant.

[3] In rendering my reasons, I have considered and applied the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

ALLEGATIONS

[4] The principal claimant has outlined her reasons for seeking Canada’ s protection in her Basis of Claim (BOC) form², as well as through her testimony. The principal claimant fears returning to Congo- Brazzaville because she fears further physical and sexual violence at the hands of Mr. [XXX] the minor claimant’ s father.

DETERMINATION

[5] I find that the principal claimant is a Convention refugee pursuant to section 96 of the Act.

[6] I find that the minor claimant is neither a Convention refugee pursuant to section 96 of the Act nor a person in need of protection pursuant to subsection 97(1).

Identity

[7] The principal claimant’s identity as a national of Congo-Brazzaville is established by her testimony and passport³ in evidence. The claimant’s minor son’s identity as a national of the US is established by his passport.⁴ I am satisfied of their identity by these documents.

Countries of Reference

[8] In order for a claim for refugee protection to be successful, the Act requires that a claimant must establish a claim against each of their countries of nationality.

[9] The minor male claimant did not advance a claim against the US. Indeed, there is no evidence before me that he faces a risk of persecution or a risk to life or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture, in the US. Accordingly, his claim for protection is rejected.

Credibility

[10] In refugee determination cases, there is a presumption that claimants and their allegations are truthful, unless there are reasons to doubt it. I found the principal claimant to be a credible witness and therefore believe what she alleged in support of her claim. She testified in a straightforward manner, offering spontaneous answers to my questions. In this case, there were no material inconsistencies or contradictions within the claimant’s testimony that were not reasonably explained or that undermined her credibility with respect to her allegations.

[11] I find the principal claimant’s testimony credible and believed the allegations in support of her claim. She met the agent of harm in 2015 while she worked in her grandmother’s restaurant. His bodyguard approached her asking for her phone number telling her Mr. [XXX] found her attractive. The claimant noted that she was aware that the agent of harm was the [XXX] of the President, a [XXX] She also knew that he had two [XXX]. She provided her phone number and Mr. [XXX] called her to set up a meeting. Over the course of 2015 to 2017 the agent of harm provided the claimant with an apartment in Pointe Noir and Brazzaville where he would come spend time with her. He also provided her with two bodyguards who would act as chauffeurs, run errands for her and monitor her. A few months into their arrangement the agent of harm started to physically and sexually assault her. She never sought protection from the police as she feared her assailant’ s power over the police and that they would not take claims of domestic abuse seriously. In [XXX] 2017, the violence escalated to such a point that the claimant passed out and was brought to the hospital the next day by a maid. At the hospital she learned that she was pregnant and decided to leave for the US in [XXX] 2017.

[12] The principal claimant returned to Congo-Brazzaville in [XXX] 2017 in order to get her older child that she had left with her mother, as she feared for her safety after the agent of harm had contacted her mother asking her whereabouts. The claimant met with Mr. [XXX] in [XXX] 2017 after he reached out to her. During that encounter, he threatened her and her children. During this encounter she found the agent of harm in a sexually compromising situation with the claimant’s minor daughter. Fearing for her life and those of her children the principal claimant left for the US in [XXX] 2017.

[13] The principal claimant submitted corroborative documents including identity documents, birth certificates and letters from the hospital⁵ consistent with her BOC⁶ and testimony. The objective country conditions evidence in the National Documentation Package (NDP) also substantiates the claimant’s allegation concerning the prevalence of domestic abuse in Congo Brazzaville. Based on the presumption of truthfulness, the claimant’s testimony, and the corroborative evidence, I find, on a balance of probabilities, the principal claimant to be a credible witness who has established that she is the victim of domestic violence at the hands of her former partner.

Well-Founded Fear of Persecution and Risk of Harm

[14] I find that the principal claimant has established sufficient credible evidence to demonstrate that she faces more than a mere possibility of persecution if she returns to CongoBrazzaville.

[15] The agent of harm demonstrated his motivation in seeking out the principal claimant upon her return to the Congo-Brazzaville, as well as through ongoing inquiries as to her whereabouts with the principal claimant’s mother. The principal claimant also testified that the agent of harm did not want her to have his child and fears severe repercussions should she return to the country. This demonstrates a prospect of further violence if the claimant returns to CongoBrazzaville.

[16] I find that the claimant has a well-founded fear of persecution based on her membership in a particular social group based on her gender as a woman, which is an immutable characteristic as defined in the Ward case.⁷ As her fear of persecution is based on belonging to a particular social group, her allegations form a nexus to a Convention ground.

[17] According to Country Reports 2013, domestic violence against women, which includes rape and beatings, is “widespread” in the Republic of the Congo⁸ (US 27 Feb. 2014, 20). According to the report by APC and AZUR développement, the rate of domestic violence and incest across the country is [translation] “rather high,” and “two thirds of all cases of violence reported to the police and the gendarmerie concerns various forms of domestic violence” (ibid., 5, 7).⁹

[18] The objective evidence further highlights that among the human rights violations committed in 2013 in the Republic of the Congo, the US Department of State’s Country Reports on Human Rights Practices for 2013 reports acts of discrimination and violence against women, including acts of domestic violence and sexual violence (US 27 Feb. 2014, 1). Amnesty International (AI) points out that [AI English version] “serious human rights violations” including cases of rape and other sexual violence occurred in 2014 in the Republic of the Congo (AI 2015). In correspondence sent to the Research Directorate, the Executive Director of AZUR développement, an association [in Brazzaville] located in nine departments in the country (AZUR développement n.d.) that aims to advance women’s rights and fights violence against women (APC and AZUR développement Mar. 2015, 4), states that,

[translation] [w]omen are subjected to various forms of violence daily, in particular, physical violence, such as beatings and injuries […]; sexual violence (rape, sexual harassment […]); [and] mental violence (insults, slander, verbal threats) (AZUR développement 14 Apr. 2015).

According to the Congolese Minister for the Promotion of Women and Women’s Integration into Development (Promotion de la femme et de l’Intégration de la femme au développement), women and children are subjected to sexual harassment and psychological violence in their family, at school, at work or in the street on a daily basis (Republic of the Congo 5 Mar. 2013, 3).¹⁰

[19] Based on the claimant’ s history of abuse by the agent of harm, the influential position of the agent of harm, and the objective evidence, I find that there is a serious possibility of persecution if the claimant were to return to Congo-Brazzaville.

State Protection

[20] I find that adequate state protection would not be reasonably forthcoming in this particular case. According to the objective evidence significant human rights issues in Congo Brazzaville include (…) violence against women and girls to which government negligence significantly contributed (…). The government took limited steps to prosecute or punish officials who committed abuses, and official impunity was a problem.¹¹

[21] Though the objective evidence indicates that Congo-Brazzaville has some legislative framework for rape, Country Reports 2013 states that “the government [has] not effectively enforce[d] the law” regarding rape and sexual harassment (US 27 Feb. 2014, 20-21). According to that same source, a Congolese women’ s group stated that “the penalties for rape ranged from as little as several months’ imprisonment to rarely more than three years,” and local and international Non-Governmental Organizations (NGOs) have observed that “[f]ewer than 25 percent” of reported rape cases were prosecuted in 2013 (ibid., 20).¹²

[22] The principal claimant testified that she never sought police protection given the high- level status of the agent of harm and that police would see this as a domestic matter, which is corroborated with the objective country evidence.

[23] Given the objective evidence and the influential position of the agent of harm I find that there is no operationally effective state protection available to the claimant in this particular circumstance and that the presumption of state protection is rebutted.

Internal Flight Alternative (IFA)

[24] Based on the evidence before me, I find that the principal claimant would face a serious possibility of persecution throughout the country given the profile of the agent of harm with his political connections and as a colonel in the army. Documentary evidence points that military members can act with impunity and that given the agent of harm’s position, resources at his disposal and motivation he demonstrated in seeking the principal claimant when she initially left him and then when she returned to the Congo- Brazzaville, I do not find that there is a viable IFA available to the principal claimant in this case.

CONCLUSION

[25] Having considered all of the evidence, I find that the principal claimant is a Convention refugee as set out in section 96 of the Act. Her claim is therefore accepted.

[26] I find that the minor claimant, [XXX] is neither a Convention refugee as laid out in section 96 of the Act, nor a person in need of protection as per section 97(1) of the Act and reject his claim.

(signed) Anike Marcotte

August 20, 2020

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27.
² Exhibit 2.
³ Exhibit 4.
⁴ Exhibit 1.
⁵ Exhibit 6, and 7.
⁶ Exhibit 2.
⁷ Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85
⁸ Republic of the Congo and Congo-Brazzaville are the same country.
⁹ Exhibit 3, National Documentation Package (NDP, Republic of the Congo, April 30, 2020, Item 5.3, Response to Information Request (RIR) COG105144.FE.
¹⁰ Exhibit 3, NDP, Item 5.3 RIRCOG105144.FE.
¹¹ Exhibit 3, NDP, Item 2.1.
¹² Exhibit 3, NDP, Item 5.3 RIRCOG105144.FE.

All Countries Democratic Republic of Congo

2019 RLLR 75

Citation: 2019 RLLR 75
Tribunal: Refugee Protection Division
Date of Decision: February 7, 2019
Panel: Melanie Chartier
Country: Democratic Republic of Congo
RPD Number: VB8-00176
ATIP Number: A-2020-01274
ATIP Pages: 000227-000232

— DECISION AND REASONS BY THE MEMBER

[1] PRESIDING MEMBER: This is the decision of the Refugee Protection Division in the claims of Mr. [XXX] and his wife [XXX]. The file number is VB8-00176 and today’s date is [XXX], 2019.

[2] You claim to be citizens of the Democratic Republic of Congo and you are both claiming refugee protection pursuant to section 96 and paragraph 97(1) of the Immigration and Refugee Protection Act.

[3] I find that you are both Convention refugees because of your imputed political opinion. Here are my reasons.

[4] Your detailed allegations can be found in your respective Basis of Claim forms. Here’s a summary.

[5] Your problems started in 2002 when one of your sons, who is now living in Canada, was accused of being part of the rebellion of the north. He was arrested and detained many times. You finally were able to help him leave the country and seek refugee protection in Canada.

[6] That year you had agents going to your house, searching your house and filling your property on a regular basis. Mr. [XXX], you were brought for questioning by the authorities and each time you had to bribe them in order to be released. Mr. [XXX], in 2005 you were accused of being a member of the Bundi dia Kongo movement and you were arrested and detained by the government authorities on many occasions. You were also the victim of intimidation by agents of the military intelligence service of the Democratic Republic of Congo.

[7] You continued being harassed until 2010 but things were not as bad as in 2005. After the presidential elections of 2011 you felt that things had improved. The police no longer came to your house and there was no harassment.

[8] You visited your children in Canada in the [XXX] of 2011 and returned to the Democratic Republic of Congo in [XXX] 2011. At the airport in Kinshasa you were set aside and questioned about your visit in Canada. All of the gifts and new clothes you were bringing back were seized by the authorities.

[9] In [XXX] 2012 a government agent visited you at your house and questioned you about the purpose of your recent trip to Canada. You were asked to once again present yourself to the military intelligence office the next day, which you did. You were questioned once again and released at the end of the day. You were once again questioned by the same man in [XXX] 2012.

[10] You arrived in Canada on [XXX], 2012, with a super visa. At that time, despite the past issues you had with the Congolese authorities you were not planning to claim refugee protection. From 2012 until 2017 you considered claiming refugee protection but you were hoping things would get better in your country.

[11] On [XXX], 2017 you were informed by Mr. [XXX]’ s sister that a summons was left at your house in Kinshasa. Another summons was served three days later. In addition, you found out that a national search warrant was issued on July 10, 2017 for Mr. [XXX].

[12] Even though you love your country where you still have properties and friends, you both finally decided you claim refugee protection the end of 2017.

[13] I find that your identity as nationals of the Democratic Republic of Congo has been established by your testimony and the documentation filed including your passports at Exhibit 1.

[14] Both of you testified at the hearing. I find that you were both credible and I therefore believe what you have alleged in support of your claims. You both testified in a direct, straightforward and spontaneous manner and there were no material contradictions or inconsistencies between your testimony and the rest of the evidence before.

[15] You also did not embellish your evidence even when you had the chance to do so. For example, when I asked you if you had received another summons since [XXX] of 2017, you testified that you had not. Or, when I asked you if you were involved in any political parties you testified that you had not. Again, I asked you what your political opinion was and you simply stated that you were for the alternates of the president.

[16] In addition, you provided documents that corroborate your allegations, including a copy of the avis de recherche and the summons, both in Exhibit 3, which state that Mr. [XXX] is wanted for national security reasons.

[17] Your son, [XXX], also testified at the hearing about why he had to flee the Democratic Republic of Congo in 2002 and claim refugee protection in Canada. I too find him credible. He testified in a direct and straightforward manner and corroborated your evidence. He explained in detail the reason by he had to leave the country and why, even with the election of a new president, he is still afraid of going back to the Democratic Republic of Congo.

[18] I find that you have both established that you have a well-founded fear of persecution because of your imputed political opinion.

[19] I find that you have both established, on a balance of probabilities, that you are seen by the authorities of the Democratic Republic of Congo as political opponents because of your son who was accused of being a rebel in 2002 and because the authorities believe that you were or you are a member of the Bundi dia Kongo movement a religious and opposition political party.

[20] You testified that throughout the years you have been harassed, arrested and interrogated multiple times by the authorities. While things got a bit better after 2010, you testified that you were again arrested and interrogated upon your return from Canada in [XXX] of 2011 at the airport as well as in early [XXX] 2012 and [XXX] of 2012.

[21] I find that you have established a subjective fear despite having returned to the Democratic Republic of Congo in 2011 and despite the delay in claiming while in Canada.

[22] First, I note that you had valid legal status in Canada during your entire stay. In addition, you testified that even though you considered claiming refugee protection back in 2011 and 2012 and in the following years, you were hoping to eventually be able to return to Democratic Republic of Congo.

[23] Most importantly, you testified that you finally decided to claim refugee protection after receiving the summons and the search warrant in [XXX] of 2017. At that point, you were really afraid that your life was in danger.

[24] I accept your explanations that I find reasonable.

[25] The country documentation on the Democratic Republic of Congo provides the objective basis for your claims. It clearly indicates that people opposing the regime in power or seen as opposing the regime have been arbitrarily arrested, detained, kidnapped, tortured or even killed. There’s ample evidence that anyone opposing or seen as opposing the regime is a target.

[26] For example, I’d like to refer to item 2.1 of the National Documentation Package and I read from page 10:

“Throughout the year security forces regularly held protestors and civil society activists incommunicado and without charge for extended periods. For example, on June 15, state agents arrested opposition Union For Democracy and Social Progress Youth League president David Mukeba in Kisangani for raising concerns about the country’s voter registration. The ANR allegedly held Mukeba incommunicado until August 31, when he was released.

On July 31, the SSF arbitrarily arrested at least 131 civil society activists and civilians following nationwide protests. While most were released within two days, five individuals who attempted to deliver a letter to the local CENI office in Lubumbashi were prosecuted. In August a court convicted four of the activists for disturbing the peace and sentenced them to eight months in prison. In November a court convicted the fifth activist, Timothee Mbuya, of provocation and incitation of disobedience and sentenced him to 12 months in prison.”

[27] As another example, I’d like to refer to item 2.2 of the National Documentation Package and I read from page 2:

“Authorities continued to ban and repress public dissent and peaceful assemblies organized by civil society organizations and the opposition, especially protests concerning the political crisis and elections. Opposition peaceful protesters were intimidated, harassed and arrested by security forces; government supporters demonstrations took place without interference from the authorities.”

[28] With respect to the treatment of the Bundi dia Kongo followers, I’d like to refer you to item 4.7 of the National Documentation Package

“ADIAC indicates that BDK followers are on the radar of the Congolese authorities and that they are being sought by the security services, forcing some to live in hiding. Similarly, the Congolese daily Le Potentiel reports that BDK/BDM followers are mistreated by security services, including arbitrary arrest and torture. The same source states that this is the situation in Kinshasa and in the Congo Central province.”

[29] I also find that your risk of persecution would be increased if you were to return to Congo as failed asylum seekers, especially given that you have made a claim against the authorities of the Democratic Republic of Congo and I’d like to refer to item 14.3 of the National Documentation Package which states that there is reports to instruct security chiefs to track down and arrest opponents of the government including members of the main opposition party and that they could use torture with discretion upon their return to the Democratic Republic of Congo.

[30] Finally, I know that even though a new president was elected recently, I have no evidence before me that things have changed for the better in Democratic Republic of Congo. To the contrary, it appears that the election results are now being contested.

[31] According to the articles found in Exhibit 5 many suspect that Kabila made a deal with the new president Tshisekide. In addition, according to your testimony, many of the people who worked under Kabila remain in place and the article in Exhibit 5 confirms this, stating for example, at page 5 that most of the security establishment remain loyal to Kabila.

[32] Therefore, should you return to Democratic Republic of Congo I find that there is a serious possibility that you would be persecuted because of your imputed political opinion.

[33] I find that you have rebutted the presumption of state protection since the agents of harm in this case is the government and the security forces in the Democratic Republic of Congo, it is clear that state protection would not be reasonably forthcoming.

[34] Finally, I have assessed whether or not there is a viable internal flight alternative available to you in Democratic Republic of Congo.

[35] Since the state authorities are the agent of persecution and since they control the entire territory, I find that there is no viable internal flight alternative for you anywhere in the country as there would be a serious possibility of persecution throughout the country.

[36] For the foregoing reasons, I find that you are both Convention refugees and I therefore accept your claims.

[37] Thank you and end of the decision.

—PROCEEDINGS CONCLUDED

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

All Countries Democratic Republic of Congo

2019 RLLR 46

Citation: 2019 RLLR 46
Tribunal: Refugee Protection Division
Date of Decision: October 31, 2019
Panel: Sarah Cote
Country: Democratic Republic of Congo
RPD Number: MB9-00088
ATIP Number: A-2020-01274
ATIP Pages: 000037-000041

[1] This is the decision for the refugee claim of Mr. [XXX]. The Claimant, [XXX], a citizen of Republic of Congo is claiming refugee protection under Sections 96 and 97.1 of the Immigration and Refugee Protection Act.

[2] The Claimant, that is you, alleges a well-founded fear of persecution for reason of his membership in a particular social group, as being a homosexual man.

[3] The tribunal finds that the Claimant has established that there is a serious possibility of persecution on a convention ground. As for your allegations in support of your claim you allege the following.

[4] You discovered that you were a homosexual at the age of twelve when you kissed a friend or you were kissed by a friend named [XXX] [phonetic] with whom you would continue to have about a three-year relationship. That relationship ended when [XXX] was severely attacked when you both were in a bar and he was attacked because he was perceived as a homosexual man and he was killed.

[5] After that event you tried to commit suicide and it failed. You then left for South Africa in 2008. You also stated that over the years you had been on a number of occasions detained by the police because of your sexual orientation and then released upon the payment of bribes. When you left for South Africa you entered the country illegally with the help of a friend, [XXX] with whom you would have a relationship for a few years. And then [XXX] when he expressed his sexuality to his father you allege that he was killed by his father for his sexual orientation and you feared for your life as well.

[6] You also tried living in Namibia with your brother who works as a pastor and because of his association with you and your sexual orientation or perceived sexual orientation by the community, your brother’s church was attacked. Your sister-in-law was also attacked. Her car was attacked and they were threatened and pointed at as performing demonic activities because of your association with them and the fact that you are a homosexual man.

[7] You fear should you return to the Republic of Congo the police, the community which you describe as homophobic that would randomly attack you knowing or perceiving your sexuality. And you also fear the family of your deceased boyfriend which who attacked your family after [XXX] death and also would hold you responsible for the death of their son.

[8] As for your identity I find that your identity has been established through the copy of your Congolese passport on file.

[9] As for credibility the tribunal is bound by the principle laid out in Maldonado whereby a refugee Claimant swears that certain facts are true this creates a presumption that they are true and unless there is a valid reason to doubt their truthfulness. The tribunal did not find any relevant inconsistencies, omissions or implausibilities that weren’t reasonably explained or that would lead it to draw negative conclusions regarding your credibility as to your sexual orientation as a homosexual man.

[10] In support of your allegations regarding your sexual orientation you had a few supporting letters. You also have a copy of your social media activities which contain photos but also homophobic remarks that are made against you. And you also had a witness that was ready to testify today but since your testimony was found to be very creditable by the board the tribunal did not think it would be necessary today to hear your witness.

[11] As for testimony, I find that you had a very forthcoming and creditable and spontaneous testimony. You did not try to embellish your testimony and as your lawyer asked you more questions more details arise but it was plain to see that you have lived through some very difficult times and the reminiscing of all these events was emotional at some points and difficult. And this made your testimony very creditable.

[12] You were able to speak about how you discovered your sexual orientation or you felt different as a child and that your gender expression is different as you said that people told you that you acted like a girl and ostracized you in school and you had a very hard time because of it. You also were able to speak about your relationship with [XXX] and the incident that led to his death.

[13] As for the time spent in South Africa you were able to reasonably explain why you were not able to stay there with the death of your partner, [XXX], by the hands of his father and xenophobic climate that made you fear for your safety. And you tried to have a better life in Namibia which turned out to be even harder for you in terms of safety because of your sexual orientation.

[14] Your allegations are supported by the documentary evidence so the National Documentation Package for the Democratic Republic of Congo, the U.S. country report indicates that there is no law that specifically prohibits homosexuality or homosexual conduct but article 330 of the Penal Code of the DRC proscribes imprisonment for three to two years and a fine for those who commit public outrage against decency and this is used by the police officers to persecute the LGBT community in Congo, in the DRC.

[15] The National Documentation Package also indicates that there is a law that is being studied to criminalize officially homosexuality in the DRC and sexual minorities in this country are stigmatized and ostracized by the general population. They cannot have access to normal schooling as you have also told us about today. They have difficulty obtaining work, access to credit, or other financial or economic means.

[16] The sexual minorities in the DRC are also victimized by the security forces of the state and are arbitrarily detained, are attacked physically and sexually and threatened. There are no support systems for sexual minorities in Congo, in DRC as you have also told us and this is seen in the National Documentation Package.

[17] As for state protection and the internal flight alternative. Since state protection is not available as the police themselves persecute homosexuals and the LGBT community the tribunal finds that you would not obtain state protection from the Congolese authorities and they are an agent of persecution.

[18] As for the IFA, the tribunal finds that you cannot be expected to deny your sexual orientation to live in your country and no matter where you would reside you would continue to have your sexual orientation and it would cause problems across the country so there is not viable IFA for you.

[19] In conclusion, the tribunal having analyzed the evidence as a whole finds that you have discharged the burden of establishing that there is a serious possibility that you would be persecuted on a Convention ground and therefore the tribunal concludes that you, [XXX] are a “Convention Refugee”. Thank you.

All Countries Democratic Republic of Congo

2019 RLLR 41

Citation: 2019 RLLR 41
Tribunal: Refugee Protection Division
Date of Decision: April 24, 2019
Panel: Jason Benovoy
Counsel for the claimant(s): Kibondo Max M Kilongozi
Country: Democratic Republic of Congo
RPD Number: MB7-10366
Associated RPD Number: MB7-10385
ATIP Number: A-2020-01274
ATIP Pages: 000001-000011

REASONS FOR DECISION

INTRODUCTION

[1] Mr. [XXX] is a citizen of the Democratic Republic of the Congo (DRC). His son, [XXX] is a citizen of South Africa. They are seeking asylum in Canada under sections 96 and 97(1) of the IRPA.

ALLEGATIONS

[2] The claimant is seeking asylum in Canada because of the threats and mistreatments he endured following his activism in the lesbian, gay, bisexual, and transgender (LGBT) community in the DRC and South Africa

[3] He also claims to fear a return because of his involvement in UNAFEC, the Union National des Federalistes du Congo.

[4] If he were to return to South Africa, he fears that underground militias working for Kabila would mistreat him, or that he would be detained and secretly deported to DRC. He also fears that he would be mistreated in South Africa because of his work with the LGBT community.

[5] He claims to have been detained in [XXX] 2014 in the DRC when he was returning from a UNAFEC meeting. He claims to have been beaten, and suffered serious injuries as a result of this detention. He claims to have been released on bail after this detention by bribing a guard.

[6] After this incident, the claimant alleges that he left the DRC for South Africa, where he had permanent residency. He claims to have been attacked and raped in South Africa because of his advocacy work to further the rights of members of the LGBT community.

[7] He sought medical treatment and made a police report after this attack, yet he claims that no action was taken by the authorities. He left South Africa on [XXX], 2017 for Canada. He signed his Basis of Claim form (BOC) on August 14 2017.

[8] His son, [XXX] bases his claim on the allegations of his father.

DECISION

[9] The tribunal concludes that [XXX] is a “Convention refugee”. However, the tribunal does not believe that his son, [XXX] is a “Convention refugee”, or a “person in need of protection”.

ANALYSIS

Identity

[10] The claimants’ identity was established by their passports, issued by Congolese and South African authorities.¹

Exclusion under section 1E – Permanent Residency in South Africa

[11] As mentioned, the claimant declared that he was a permanent resident of South Africa. The tribunal therefore examined whether the claimant had a reasonable fear of persecution or if there exists, on a balance of probabilities, a risk of harm under section 97(1) of the IRPA in this country.

[12] At the hearing, the claimant testified credibly about a brutal attack that he endured while living in South Africa. The claimant testified that he was attacked and raped in his home by unknown agents, as a means to repress his work advancing the rights of the LGBT community in South Africa. The claimant also submitted credible evidence confirming this attack, such as a detailed medical report describing his injuries.

[13] The tribunal noted the visible effort, anguish, and pain required to recall these events at the hearing. The tribunal noted no contradictions, omissions, or incoherencies that could affects its appreciation of the claimant’s credibility concerning these allegations.

[14] Given the nature of his advocacy work – working with LGBT youth – and the credible account of the claimant being brutally attacked because of this work, the tribunal examined the documentary evidence pertaining to the treatment of LGBT activists and members of this community to ascertain whether an objective basis for his claim exist against South Africa.

[15] The NDP points to systemic patterns of abuse and violence towards members of the LGBT community, including incidents of rape by security forces, and “secondary victimization” by state actors of members that reported abuse. The evidence also points to a higher degree of vulnerability of members of this community because of societal and police attitudes against them².

[16] The tribunal concludes that the documentary evidence establishes that there is an objective basis to support his fear of persecution if he were to return to this country. This establishes that there is exist a serious possibility of persecution for the claimant in South Africa, as someone with an imputed sexual orientation as belonging to the LGBT community.

State Protection

[17] Although South Africa does not criminalise same-sex relationships, the documentary evidence consulted by the tribunal indicates that members of the LGBT community face violence and victimization by the police, with investigations in crimes committed against this community “often insufficient”. There are also reported incidents of security forces members raping members of the LGBT community during arrests³. Given this evidence, the tribunal does not believe there is adequate state protection in South Africa for the claimant.

Internal Flight Alternative

[18] Given the documentary evidence that indicates that a majority of the South African population believed that same-sex activity was morally wrong⁴, and that state agents have been found to commit some of the more brutal acts of violence against the LGBT population, the tribunal believes that there exist no viable internal flight alternative in the country as the claimant would face a serious possibility of persecution throughout South Africa.

[19] In summary, given that the tribunal believes the claimant in his account of being brutally attacked for his activism in the LGBT sector in South Africa, coupled with the documentary evidence of systemic abuse and violence against this community, the tribunal believes that the claimant faces a serious possibility of persecution because of activism and imputed sexual orientation where he to return to South Africa. For this reason, the tribunal determines that he is not excluded following section 1E of the Convention because of his status as a permanent resident of South Africa.

Inclusion

Credibility

[20] The tribunal found significant credibility issues with the claimant’s testimony concerning the specific allegations of political involvement and mistreatment in the DRC.

[21] Firstly, the tribunal noted a contradiction between the claimant’s written narrative, and the declarations he made in the IMM5669 form, at question 9 concerning his political involvement in the DRC.

[22] In his written narrative, the claimant alleges that he belonged to the UNAFEC political organization. He claims to have been designated to represent this party in South Africa, as part of an international expansion effort. Additionally, at the hearing, the claimant further explained that he was drawn to the organization because he adhered to their programs, and believed in their philosophy. He finally stated that he joined in 2010.

[23] However, the tribunal noted that the claimant did not indicate any form of participation in this party in his IMM5669 form, at question 9. When confronted by this contradiction, the claimant answered that he disclosed his involved with this organization in his written narrative, and did not want to duplicate the information.

[24] The tribunal considers that this explanation in unreasonable.

[25] The claimant’s alleged participation in this organization seems to be the main reason he was arrested, detained, and mistreated in his home country. It is therefore a central allegation of his claim, and as such the tribunal would have expected the claimant to mention his participation in this organization when asked to declare “what organizations you supported, been a member, or been associated with?”⁵. The tribunal does not see how “duplicating” the declaration that he belonged to this political organization would be detrimental in establishing this central allegation of his claim. Moreover, the tribunal noted that the claimant listed a number of other organizations he supported, such as the Liberal Party of Canada, Amnesty International, and others. The tribunal finds it therefore further unreasonable that he omitted to indicate his participation in UNAFEC in this form.

[26] The tribunal draws a negative finding from this contradiction, which undermines the claimant’s credibility.

[27] Moreover, the tribunal noted a significant incoherence in his oral testimony concerning the means by which he was released from detention.

[28] At the hearing, the claimant testified that one of the prison guards told him that he looked like one of his old professor, Mr. [XXX]. The claimant then alleges to have answered that professor XXXX was in fact his brother. The claimant would have then pleaded with the guard, asking him to contact his brother, which eventually led to his release through the payment of a bribe. However, the tribunal noted in the claimant’s BOC form indicates that his brother [XXX] passed away on XXXX XXXX, 2013⁶, before the claimant was allegedly placed in detention in [XXX] 2014. Consequently, the claimant’s brother could not have arranged the alleged bribe that would have secured his released.

[29] When confronted by this incoherence, the claimant answered that his brother passed away in 2014, and not 2013.

[30] The tribunal finds that this explanation is unreasonable.

[31] At the beginning of the hearing, the claimant confirmed that his BOC form was true, complete, and accurate, and that he had no amendments of modifications to make. Indeed, the claimant seems to have added the date at which his brother passed away after the initial signature of the form, as this information was added by hand next to his typewritten answers. The tribunal therefore believes that the claimant had all the opportunities to make changes to his BOC form and notice this alleged mistake, yet no changes were made.

[32] Given the significance of the claimant’s brother’s involvement in securing his released from detention that allegedly occurred in [XXX] 2014, the tribunal draws an important negative finding from this incoherence, which once again affects the claimant’s credibility.

[33] Moreover, the tribunal noted that the claimant’s Congolese passport⁷ was renewed after he had been released, and while he was residing in South Africa. The claimant mentioned at the hearing that after his released from detention, and subsequent trip to South Africa, he had not returned to his home country. He added that he believes that the Congolese government still “has eyes on [me]”, that he is still in their system because he was detained and escaped (through bribery), and if he were to return, he could be persecuted, tortured, and killed.

[34] However, the tribunal noted that his current passport was issued in Kinshasa. When asked to explain how his passport was issued in Kinshasa if he hadn’t returned to his country, the claimant mentioned that his brother renewed his passport on his behalf.

[35] Although not an expert in Congolese administration, the tribunal finds it at the very least unusual that the claimant’s new passport contained his signature, despite being renewed without his direct involvement. When asked to explain how his new passport could contain his signature if he did not renew it himself, the claimant answered that the Congolese authorities already had his information from his previous passport, which they copied into his new one. The claimant added that there was no security background check when they issued him the new passport.

[36] Given the circumstances that led the claimant to flee his country, the tribunal confronted the claimant with section 3.5 of the National Documentation Package for the DRC which states that the government had refused to issue new passports to civil society activists and opposition members critical of the government.

[37] When confronted with this information, which is drawn from credible sources, the claimant answered the people were bribed, and that they simply copied the information from his old passport to his new one.

[38] The tribunal notes that the information contained in the NDP indicates that passport agents are easily influenced by bribes. On the other hand, the tribunal finds it unusual that an alleged prominent member of civil society, and a member of an opposition party that had the mandate to expand the party’s reach internationally, and that was allegedly jailed as a result of this political involvement would have been able to renew his passport. The tribunal does not impute a direct credibility finding from this incoherence, but it does raise some doubt as to whether the claimant returned to Kinshasa to obtain his passport, and whether he is, as alleged, sought after by the Congolese government.

[39] Nevertheless, upon review of the other credibility issues outlined above, the tribunal concludes that the claimant did not establish, on a balance of probabilities, that he was a member of an opposition party, nor that he was arrested, detained, and mistreated because of this involvement.

Profile as civil society member and imputed sexual orientation

[40] Although the tribunal does not believe that that claimant was mistreated in relation to his work as a political activist in the Democratic Republic of the Congo, his residual profile as an active civil society member was analyzed to ascertain the prospective risk for him if he were to return to his home country.

[41] Despite the credibility issues outlined above, the tribunal does believe that the claimant was indeed an active member of Congolese civil society, work that he continued in South Africa and in Canada. Because of this profile, especially his work related to LGBT issues, the tribunal believes that the claimant would face a serious possibility of persecution if he were to return to the DRC.

[42] The tribunal noted that the claimant was interviewed in the media about this work on this subject, and that these articles appear extensively online⁸. Consequently, the tribunal believes that the claimant has demonstrated on a balance of probabilities that he was, and continues to be extensively involved in advocating for LGBT rights.

[43] The tribunal is aware of the documentary evidence contained in the National Documentation Package for the DRC. It states that although homosexuality itself is not a crime, the state does use accusations of “indecency” to criminalize homosexual acts⁹. Furthermore, the NDP states sexual minorities face “societal discrimination and abuse”, affecting their chances of having a normal education and employment. The NDP also states that “sexual minorities are viewed poorly and mistreated by the government”, and victims of harassment from authorities.

[44] Considering the visible and extensive advocacy work done by the claimant in this domain, the tribunal believes that he may be perceived as a member of the LGBT community. Consequently, the tribunal believes that the imputed sexual orientation of the claimant as a member of the LGBT community would create for him a serious possibility of persecution if he were to return to his country.

State Protection

[45] The tribunal believes that there is clear and convincing documentary evidence establishing that sexual minorities are harassed and mistreated in the DRC by state authorities¹⁰. Therefore, the tribunal does not believe that the Congolese state could offer adequate protection to the claimant if he were to return to his home country.

Internal Flight Alternative

[46] Given the pervasiveness of the harsh societal attitudes that considers homosexuality a “taboo” in the DRC, and that it is generally not accepted in the country, the tribunal does not believe that there is a viable internal flight alternative for the claimant in his country. The tribunal also notes the extensive documentary evidence about the claimant’s advocacy work in this domain available online and that is available by a simple search of the claimant’s name. Consequently, the tribunal believes that there exist a serious possibility of persecution for the claimant throughout his home country.

[XXX]

[47] The tribunal examined the claim for the claimant’s son, [XXX], who is a citizen of South Africa. For the following reasons, the tribunal does not believe that the claimant established that his son would face a serious possibility of persecution, or, by balance of probabilities, a risk under section 97(1) of the IRPA if he were to return to his home country.

[48] At the hearing, the claimant testified that he fears for his son, since he has always been under his care, and that he fears that he could also be a target in South Africa. He also states that there may be psychological issues of being separated by his father.

[49] The tribunal considered these allegations, but does not believe that the claimant has demonstrated any prospective risk for his son upon a return to South Africa. Indeed, the tribunal believes that the claimant’s attack was targeted toward him in response of his advocacy work. There is no indication that these attackers were interested in also targeting his family members.

[50] Furthermore, [XXX] mother still lives in South Africa, with his half-sister. There is no indication that either of these individuals have been targeted.

[51] For these reasons, the tribunal believes that the claimant has not established that there exist a serious possibility of persecution, or, by balance of probabilities, a risk under section 97(1) of the IRPA if he were to return to his home country.

CONCLUSION

[52] The tribunal concludes that there is a serious possibility of persecution for Mr. [XXX] based on his imputed sexual orientation and activism. His claim is accepted.

[53] Having considered all the evidence, the tribunal finds that Mr. [XXX] has not met his burden of establishing a serious possibility of persecution on a Convention ground, or that it is more likely than not that he would be personally subjected to a danger of torture or face a risk to his life or a risk of cruel and unusual treatment or punishment, were he to return to his country. As a result, he is neither a “Convention refugee”, nor a “person in need of protection”. Therefore, the tribunal rejects his claim.

(signed) Jason Benovoy

April 24, 2019

¹Document 2 – Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada.
²Document 3 – NDP for South Africa, Section 2.13
³Document 3 – NDP for South Africa, Section 2.1
⁴Document 3 – NDP for South Africa, Section 6.1
⁵Document 2 – Supra note 1, IMM 5669 form, Question 9.
⁶Document 1 – Basis of Claim form, Question 5
⁷Document 2 – Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada.
⁸Document 4 – Exhibit C-2
⁹National Documentation Package, Congo, Democratic Republic of the, 31 July 2018, Tab 6.1: Response to Information Request, Immigration and Refugee Board of Canada, 22 April 2014, COD104815.FE.
¹⁰National Documentation Package, Congo, Democratic Republic of the, 31 July 2018, Tab 2.1