All Countries Eswatini

2020 RLLR 21

Citation: 2020 RLLR 21
Tribunal: Refugee Protection Division
Date of Decision: January 28, 2020
Panel: Sarah Charow 
Counsel for the Claimant(s): Robert Gertler
Country: Eswatini
RPD Number: TB9-01448
Associated RPD Number(s): TB9-01495, TB9-01515, TB9-01516, TB9-01517
ATIP Number: A-2021-00540
ATIP Pages: 000130-0000134

[1]       MEMBER: This is the decision for [XXX], file TB9-01448 and the associated claimants. [XXX], file TB9-01495. The associated minor claimants [XXX], file TB9-01515; [XXX], file TB9-01516; and [XXX], file TB9-01517.

[2]       I’ve considered your testimony and the other evidence in this case and I’m ready to render my decision orally.

[3]       Your claiming to be a citizen of — or you and your family are claiming to be citizens of Eswatini and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I find that you are Convention refugees for the following reasons.

[4]       The allegations of your claims can be found in your Basis of Claim Forms at Exhibit 2. In short, you allege persecution from the Eswatini authorities and police based on your imputed political opinions, as you had agreed to [XXX] for PUDEMO, P-U-D-E-M-O, a prohibited political party. You allege that you had [XXX] for the PUDEMO as an act of charity, as you had helped other people and groups in similar ways before. You had six [XXX] before completing a large order and kept two.

[5]       When you [XXX] you were arrested. You were interrogated about your involvement with various prohibited political parties before being released through the assistance with — of a lawyer. You noticed that the authorities began to follow you and monitor you. You were stopped and questioned repeatedly. You came to Canada on previously obtained visitor visas and claimed refugee protection. You fear future arrests and physical harm for yourself and fear the Eswatini authorities.

[6]       You allege that your wife and children, these seated claimants, could face harm from the same people because the Eswatini authorities would want to find you. You allege there’s no state protection available for you, nor any available internal flight alternative in Eswatini.

[7]       In terms of identity, you’ve submitted copies of your Eswatini passports, which can be found in Exhibit 1. I therefore, find that on a balance of probabilities that identity and country of reference have been established.

[8]       The adult claimants have offered evidence at Exhibit 7 that they had Pakistani citizenship. note that they — their passports state that they were born in Pakistan. However, at Exhibit 7, I note evidence about renouncing that Pakistani citizenship in order to become citizens of Swaziland or Eswatini. I note that each of the minor claimants were born after that renunciation. I note from the passports available at Exhibit 1, that each of the claimants required visas to visit Pakistan after this renunciation.

[9]       In terms of country of reference, a claimant may be considered to be a national of a country where the evidence establishes that it is within his or her control to acquire the citizenship of a country, for example, where the application for citizenship is a mere formality and the authorities of that country did not have any discretion to refuse the application. I reference the Williams case, neutral citation of 2005 FAC 126.

[10]     “After a thorough review of the documentary evidence, including the National Documentation Package for Pakistan at Exhibit 8, and an updated response to information request at Exhibit 9, the law regarding the resumption of Pakistani citizenship after renunciation as an adult is still unclear. Available Pakistani law states that in situations like this, the law is not explicit.” (as read)

[11]     All indications point to this still being good case law. Accordingly, I cannot find that an application to resume Pakistani citizenship would be a “mere formality” as it is unclear as to whether the authorities of Pakistan have any discretion to refuse that application. As such, I cannot find Pakistan to be a country of reference for any of the claimants. The only country of reference in this matter is Swaziland, or Eswatini, as it is now called.

[12]     In terms of credibility, I find that on a balance of probabilities you have established credibly that you will be at risk of persecution because of an imputed political opinion. I have found you to be credible, generally. Your testimony about your political involvement was straightforward and was in keeping with your Basis of Claim Form. There were no significant inconsistencies that went to the core of your claim that were not explained. I did note some minor omissions, however, I do believe that you’ve offered a reasonable explanation for each omission.

[13]     You were able to provide detailed testimony about your businesses, your charitable work, and why you agreed to help the PUDEMO members. You were able to describe in detail the steps you took to obtain the PUDEMO [XXX] and to deliver them to the party members. Your testimony about your arrest was specific, detailed, spontaneous, and all in all, consistent with your allegations. I place a great deal of weight on these lines of testimony.

[14]     I also note that in support of these aspects of your claim, you provided documentary evidence. I note Affidavits from employees from your store who witnessed you being arrested and witnessed that you had to close down these stores after the arrest. You also provided a medical report from the day you were released from detention.  That documented injuries that you’ve sustained while in detention. I further note the — a letter from your brother saying that the police were still searching property that used to be owned by you and that they had been questioning your brother about your location. Furthermore, I note a letter from the lawyer that you had hired in Eswatini to help you get out of detention. These documents can be found at Exhibit 6.

[15]     I further note that today you were able to provide a documentation, your travel documentation that you had used in order to travel to South Africa to obtain the [XXX] for the PUDEMO party members. I note that the travel dates are stamped specifically on this document, and this document can be found at Exhibit 10.

[16]     I did note some issue with some of the Court documents that you had provided. This would be bail documents and an Affidavit in order to obtain bail. Also, at Exhibit 7, I noted some issues in — regarding stamps or lack of stamps, lack of signatures. I do have concerns about these documents, however, overall these concerns are not enough to find that on a balance of probabilities that these documents are non-genuine, or non-credible. I put some weight on those documents specifically. Those Court documents, again, can be found at Exhibit 6. The other documents, as noted at Exhibit 7 and 10.

[17]     In terms of documentary support, although this is not technically a document, I note that you were also able to show me one of the extra PUDEMO [XXX] here today at the hearing. I do place a great amount of weight on the documents that had no issues. They do go to help establish your credibility.

[18]     I further note that you had travelled outside of Eswatini to South Africa and then returned to Eswatini. This travel happened after your arrest. I must assess whether this travel impacts your credibility in terms of the failure to claim asylum and then reavailment, as you did not claim protection in South Africa at that time and indeed returned to Eswatini. I asked you about these issues and you explained that it was because South Africa was dangerous for foreigners because of issues with Xenophobia. I also note that your family did not travel with you on these trips. You explained that this travel was necessary because you were wrapping up your business in order to obtain funds to flee Eswatini.

[19]     In light of your other credible evidence regarding your imputed political opinion, I find that you’ve offered a reasonable explanation for both the failure to claim refugee protection and the reavailment. These issues do not impact your credibility.

[20]     Overall, as I said before, I do find you to be a credible witness. I find that you’ve established your profile as someone with an imputed political opinion on a balance of probabilities, and as such, your family’s profile as family members of somebody with a imputed political opinion, I find that your allegations about the risks that you face due to these political opinions, real or imputed, as outlined in your Basis of Claim Forms and your testimony, to be credible.

[21]     I find that you’ve established your subjective fear. I find that there’s a link between what you fear and two of the five Convention grounds, specifically, you ‘ve been persecuted by the Eswatini government because of an imputed political opinion, therefore your claim has been assessed under section 96 of the Immigration and Refugee Protection Act. Your family faces persecution because of their membership in a particular social group as family members of someone with an imputed political opinion. Their claims as well has been — have been assessed under section 96.

[22]     In terms of objective documentation, I note that the available documentation supports your allegations that individuals in your circumstances face persecution in Eswatini. I’ve referenced the National Documentation Package as found at Exhibit 3, specifically Item 2.1:

[23]     “Human rights issues included restrictions on political participation and corruption. The Government often did not investigate, prosecute, or administratively punish officials who committed human rights abuses. With very few exceptions, the government did not identify officials who committed abuses. Impunity was widespread.”

[24]     I note Item 2.7:

“Individuals have been charges with terrorism and sedition for participating in peaceful assemblies and/or associated — associating with political parties, especially PUDEMO.” (as read)

[25]     I note Item 4.1 which states that “PUDEMO was officially banned in the country under the Suppression of Terrorism Act.” Excuse me. It’s also noted that “those found associating with PUDEMO may face prison terms of between 25 years and life.” The same item states that:

“Persons or groups that abet, aid, sympathize with, shelter, or provide logistical support to the organizations invite ‘the wrath of the law’.” (as read)

[26]     I’ve considered these — this documentary evidence in conjunction with your credible allegations about your experiences in Eswatini. Having considered these factors, I find that you face a serious possibility of persecution based on your imputed political opinion.

[27]     In regards to your family members, the associated claimants, I note the claimant’ s Exhibit 6 at page 35, this is Objective Country Condition Evidence. It states that:

“The use of various forms of intimidation, torture, and murder to silence dissidence is a long­ standing tradition in Eswatini.” (as read)

[28]     I do find that this is enough to establish that there is more than a mere possibility of persecution for the associated claimants, as well as the family members of a political dissident, again, whether real or imputed. I find there is an objective basis to their fears as well, and that a well­ founded fear of persecution has been established for each of the claimants.

[29]     As the agent of persecution is the state, which acts with impunity, I find that there is clear and convincing evidence that state protection would not be available to you, nor would it be reasonable for you to seek such protection.

[30]     Likewise, as the agent of persecution is the state and membership in PUDEMO has been criminalized across the country, I find that there would be no safe place for you anywhere in Swaziland where you would not face a risk of persecution because of your imputed political opinions. And your family, in terms of their association with somebody with a political opinion, real or imputed. As the test for an internai flight alternative fails on the first prong, I find there is no viable IFA or internal flight alternative for you anywhere in Swaziland or Eswatini.

[31]     Based on the totality of the evidence, I find the claimants to be Convention refugees. Your claims are therefore accepted. So this will conclude today’s hearing.

[32]     I would like to thank everyone for their participation. Thank you, Mr. Interpreter, and thank you counsel, and thank you sir. Counsel, l’m going to ask that you explain this to the associated claimant and remind her that a copy of this decision will corne in the mail to remedy any issue caused by her not being present for this decision.