Categories
All Countries Rwanda

2020 RLLR 55

Citation: 2020 RLLR 55
Tribunal: Refugee Protection Division
Date of Decision: October 16, 2020
Panel: Tim Crowhurst
Counsel for the Claimant(s): El-Farouk Khaki
Country: Rwanda 
RPD Number: TB7-23803
ATIP Number: A-2021-00655
ATIP Pages: 000171-000176


REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claim of [XXX], who claims to be a citizen of Rwanda, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The claimant alleges that he and his family are long time friends of Diane Rwigara, who ran for the Presidency of Rwanda in 2017.

[3]       The claimant alleges that he provided support to her campaign in the form of a vehicle, as well as providing signatures for her nomination form [XXX].

[4]       Shortly after the election, police arrested and detained the claimant for a period of about two weeks, during which he was tortured and psychologically abused.

[5]       Following his release, which was secured by a family member, police continued to visit his home and threaten the claimant and his parents.

[6]       The claimant’s parents fled to Kenya.

[7]       Prior to the arrest and detention, the claimant had already secured a student visa to come to Canada.

[8]       A relative then bribed a police officer and helped the claimant flee Rwanda and travel to Canada.

[9]       A friend of the family picked him up at the airport and helped the claimant recover from his injuries and find a lawyer in order to make a refugee claim.

DETERMINATION

[10]     The panel finds the claimant to be Convention refugee as he has established a serious possibility of persecution should he return to Rwanda, based on the grounds in section 96 of the Immigration and Refugee Protection Act (IRPA)

ANALYSIS

Identity

[11]     The panel finds that the claimant’s identity as a citizen of Rwanda is established by the certified true copy of his Rwandan Passport.2

Nexus

[12]     The panel find that the claimant has established a nexus to section 96 by reason of the claimant’s political opinion as a supporter of the Rwandan Opposition

Credibility

[13]     The panel finds the claimant to be a credible witness, and therefore believes what he has alleged in support of his claim. The claimant testified in a straightforward and concise manner during the oral hearing, testifying in English. The panel found that the claimant’s testimony was in no way inconsistent or contradictory with the documentary evidence, including the supportive objective evidence contained in the National Documentation Package (NDP).3

[14]     The claimant’s allegations of detention and torture at the hands of the Rwandan government, are consistent with information contained in the NDP document, excerpts of which are reproduced here for context.

“Treatment of Diana Rwigara’s Supporters After the August 2017 Electoral Period”

According to the German magazine Der Spiegel, Diane Rwigara’s supporters no longer dare mention their support for her in public (Der Spiegel 29 Apr. 2019). (…)the following information on the treatment of President Kagamé’s opponents in general may be useful.

In a telephone interview with the Research Directorate, an assistant professor at the University of Denver’s Josef Korbel School of International Studies who has conducted research in Rwanda, notably on the impacts of violence on women’s political mobilization, explained that, generally, opponents or critics of President Kagamé avoid expressing their views in public, even in a casual setting like a café or bar, for fear of being overheard by intelligence services or government informants (Assistant Professor 25 Apr. 2019). Similarly, in a telephone interview with the Research Directorate, an associate professor of development at the University of Ottawa’s School of International Development and Global Studies working on issues of governance in Rwanda indicated that the Rwandan government’s control apparatus is very developed, encompassing local forms of surveillance as well as informants in local governance structures (Associate Professor 2 May 2019). Similarly, in its Freedom in the World 2019 report, Freedom House states that “[t]he authorities reportedly use informants to infiltrate civil society, further discouraging citizens from expressing dissent” (Freedom House 29 Jan. 2019, sec. D4).

According to the US Department of State’s Country Reports on Human Rights Practices for 2018, laws prohibiting “divisionism, genocide ideology, and genocide denial” were broadly applied by the Rwandan government, including to silence political dissent and those critical of the government (US 13 Mar. 2019, 14). The Associate Professor added that the government has instituted a [translation] “legal control apparatus” such that accusations of “denial or criticism [of the official version] of the genocide” are often levelled against political opponents who may be imprisoned as a result (Associate Professor 2 May 2019). An article in the Wall Street Journal (WSJ), commenting on the treatment of certain opposition figures in Rwanda, also reports that the authorities used genocide denial charges to “silence … opponents” (WSJ 31 Oct. 2017).

According to the Associate Professor, those openly critical of the government or opposing the government and who hold [translation] “locally important” positions (for example, a local prominent citizen or teacher) are especially at risk of being targeted by these forms of surveillance and control and of being threatened, arrested or physically injured (Associate Professor 2 May 2019).

The Assistant Professor indicated that “even low members [of opposition parties] who try to run, for instance, in local elections,” as well as supporters of those opposition parties, risk being harassed by law enforcement, or arrested, and face risks of “disappearance, even murders”(Assistant Professor 25 Apr. 2019). According to the Assistant Professor, the consequences can also be material, such as confiscation of property by the government or expropriation (Assistant Professor 25 Apr. 2019). Similarly, the Wall Street Journal cites an exiled Rwandan economist as stating that the authorities have proceeded with “‘arbitrary'” seizures of businesses and properties based on accusations of financial crimes, such as tax evasion or fraud (WSJ 31 Oct. 2017).4

[15]     The claimant provided copies of his Facebook Messenger conversations5 with Diane Rwigara wherein she professes concern for the claimant’s wellbeing and is wary of having any conversations that may be monitored by the government.

[16]     The claimant has also provided documentary evidence of the Public Prosecutor6 granting provisional release as well as Minutes of Detention,7 which speak to the charges against him based on his political involvement.

[17]     The panel accepts, on a balance of probabilities, that the claimant’s allegations did occur as he testified and as expressed in his Basis of Claim narrative.

Objective Basis of Future Risk

[18]     Based on the credibility of the claimant’s allegations, the documentary evidence provided and the objective evidence which supports these allegations, the panel finds that the claimant has established serious possibility of a future risk that he will be subjected to persecution.

[19]     To be considered persecution, the prospective risk of harm must be sufficiently serious, either individually or cumulatively, to constitute persecution.

[20]     The claimant has faced arrest, detention, inhumane treatment and punishment in detention. He fears he will be arrested again if he were to return to Rwanda. The panel find that the types of harm that the claimant has faced in the past and may face in the future are persecutory.

[21]     The fact that the claimant faces this risk is corroborated by the following documents: National Documentation Package (NDP) for Rwanda- September 1, 2020, item 2.2, Rwanda. Human Rights in Africa: Review of 2019, and item 4.1, Rwanda: Politically Closed Elections.

State Protection

[22]     The panel finds that it would be objectively unreasonable for the claimant to seek the protection of the state in light of his particular circumstances. It is the government that the claimant fears.

Internal Flight Alternative (IFA)

[23]     The panel considered whether a viable internal flight alternative exists for the claimant. On the evidence before me, the panel finds that there is a serious possibility of persecution throughout Rwanda. The government has effective control throughout the country and in the NDP, item 3.7, it describes the system of registration to account for citizens, through birth, death, and health, making the government capable of tracking the claimant should he return to Rwanda.

CONCLUSION

[24]     Based on the analysis above, the panel concludes that the claimant has established a serious possibility of persecution based on a Convention ground pursuant to Section 96 of IRPA. Accordingly, the claim is accepted.

(signed)           Tim Crowhurst

October 16, 2020

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 1, Package of Information from the Referring CBSA/IRCC.
3 Exhibit 3, National Documentation Package (NDP) for Rwanda (September 1 2020).
4 NDP, item 4.6 at pgs. 2-3.
5 Exhibit 6.
6 Exhibit 7.
7 Ibid.

Categories
All Countries Rwanda

2020 RLLR 48

Citation: 2020 RLLR 48
Tribunal: Refugee Protection Division
Date of Decision: March 10, 2020
Panel: Nick Bower
Counsel for the Claimant(s): N/A
Country: Rwanda
RPD Number: VB9-00586
ATIP Number: A-2021-00655
ATIP Pages: 000119-000127


— DECISION

[1]       PRESIDING MEMBER: These are my reasons for a decision in the claim for protection for [XXX], a citizen of Rwanda who seeks protection under the Immigration and Refugee Protection Act as a Convention refugee pursuant to section 96 and a person in need of protection, pursuant to section 97.

[2]       I’ve considered your testimony and all of the other evidence before me today. I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution. As a preliminary matter you applied for late disclosure of a document, your employment contract, it’s relevant, probative, one relatively brief document which I was able to review completely before the hearing, it’s late admission does not prejudice any party and you provided a, I find, reasonable explanation for the late disclosure. Considering all of the relevant factors I accepted the document into evidence and added it to the list of documents as Exhibit 5.

ALLEGATIONS

[3]       Very briefly, you allege the following. When you were young, about [XXX], you got a job as a [XXX] at a law firm to help pay for your university. You worked there as a [XXX]

[4]       The firm employed two drivers on staff, the drivers were there to drive partners, associates and sometimes yourself when needed for work. One of the drivers was a man named [XXX]. He drove you sometimes including giving you rides sometimes to your university where you took classes in the evening after working a full workday at the law firm.

[5]       On one occasion, [XXX] drove you to his home and sexually assaulted you after drugging you. When he was finished, he threatened you and told you that if you told anyone, if his wife and family found out he would kill you.

[6]       You went to the hospital, you were examined, you went to the police and reported the sexual assault. The police said they would get back to you if things progressed. You waited 11 months without hearing anything from the police. And from what you know from hearing about other women it’s happened to, that’s not unusual.

[7]       You did not tell anyone at your work, and you were afraid. You have not told your family. You did tell some of your friends at university, they told you that they had heard from [XXX] who he knew from dropping you off at the university that you had initiated a sexual encounter. They blamed you and insulted you calling you a slut.

[8]       You have seen [XXX] just on the road outside of work, although you actively avoided contact with him on that occasion. You fear that if you were to return to Rwanda [XXX] could carry out his threat to kill you if his wife or family finds out.

[9]       After the sexual assault, you noted that you have been not just uncomfortable around men, but you have actively avoided being in the company of men. And comparing your experiences around men in Rwanda after the sexual assault to your experiences around men in Canada, even in Canada you are not comfortable or able to internet comfortably with men.

[10]     You fear that if you were to return to Rwanda, you might be sexually assaulted again. You don’t know much about [XXX]; you don’t know anything about his family. You only know him through work.

DETERMINATION

[11]     I find that you are a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act.

ANALYSIS

Identity

[12]     I find that you are a citizen of Rwanda, you’ve provided in Exhibit 1 a copy of your current Rwandan passport with the still-valid multi-entry Canadian visa that you used to enter Canada.

Credibility

[13]     I find that you are a credible witness and I accept your allegations. You’ve testified in a responsive, meaningful and spontaneous manner. You have not taken opportunities to tailor or to exaggerate your evidence. Your evidence is consistent with the other evidence before me.

[14]     You have provided some documents to corroborate your allegations, in particular, you’ve provided a copy of your employment contract corroborating your work with the Lawfirm. You’ve also provided a copy of the medical report from the hospital following your complaint. The report is consistent with a complaint and investigation resulting from a sexual assault.

[15]     I note that a recent Federal Court decision, Volasko Chavaro (phonetic) -v- Canada [2020]

[16]     FC310 speaks to the issue of the delay in filing a refugee claim after arriving in Canada. The court finds, and I agree, that any finding on credibility based only on that delay in cases of sexual assault relies on,

“The discredited and stereotypical myth that all women who are victims of sexual assault react in the same manner and will report a sexual assault in a timely manner. This is an ancient but rejected stereotypical myth about victims of sexual assault known as the Doctrine of Recent Complaint. For the reasons that follow, I find this Doctrine should form no part of Canada’s Immigration Law. The Doctrine of Recent Complaint was thoroughly discredited decades ago because it is demonstrably false and because it is sexist being almost universally applied against female victims of sexual violence. It has been rejected by both the courts and Parliament in the context of criminal law. It has been denounced by this court in the immigration context”.

[17]     The decision goes on to state that it should not be applied in a refugee context as a way to find a claimant uncredible simply because, in a case of sexual assault, it took a period of time to gather the courage to come forward to seek protection.

Nexus

[18]     I find that there is a nexus between the persecution alleged and the Convention ground of membership in a particular social group as a woman whose a victim of gender-based violence or GBV.

[19]     At tab 5.3 is a report by the United Nations Committee on the Elimination of Discrimination Against Women. That report states,

“The Committee welcomes the awareness-raising measures taken by the State party (meaning Rwanda’s Government) to address discriminatory stereotypes about the roles and responsibilities of women and men in the family and in society. However, the Committee is concerned that those measures insufficiently tackle the prevalence of deep-rooted patriarchal attitudes and stereotypes that give a higher status to men and boys and the resulting subordination of women and girls, which undermines their social status, autonomy, educational opportunities and professional careers, as well as constitutes a underlying cause of gender-based violence against women”.

[20]     Women are seen in Rwanda as a group, as a particular group, based on their gender and subject to, as the report states, deep-rooted patriarchal attitudes which not only hinder their lives in a variety of aspects, but also leave women particularly vulnerable to violence as gender-based violence.

Well-founded Fear of Persecution

[21]     You have testified that you fear persecution if you return to Rwanda. I accept your testimony and so I accept that you do have a subjective fear of persecution.

[22]     Considering all of the evidence before me in this particular case, I find that your subjective fear is objectively well-founded.

[23]     I am satisfied, considering all of the evidence before me in this claim, that you would face a serious risk of persecution as a woman if you were to return to Rwanda.

[24]     I do not find that that serious risk of persecution is specific to Isaac. Considering all of the evidence, including the documentary evidence, I find that the serious risk is from men in Rwandan society in general, not tied to one particular man.

[25]     Returning to the United Nations Committee Report at tab 5.3, the report states,

“The Committee appreciates the measures taken by the State party to eliminate gender-based violence against women and provide assistance to victims, including the adoption of the National Policy Against Gender-Based Violence and a corresponding strategic plan and the establishment of the Asanji (phonetic) One-Stop Centres Anti-Gender-Based Violence Clubs in schools that involve both girls and boys and gender desks in the Rwandan National Police and the Rwanda Defence Force. The Committee notes with concern, however, that the number of women who are victims of gender-based violence including sexual violence is particularly high in the State party. It is further concerned that (a) gender-based violence against women is widely accepted by society, a situation that is exacerbated by the common perception that the traditional patriarchal system is under threat and younger men are inclined to consider that it is justified to beat their wives; (b) gender-based violence against women is largely under-reported because of the victims fear of stigma, retaliation and women’s economic dependence on the perpetrator as well as their lack of awareness of their rights and how to claim them, and continues; (f) the resources allocated to the provision of medical, psychological and legal assistance to victims are insufficient”.

[26]     At tab 2.5 is a report by the National Commission for Human Rights. That report specifically states that women and daughters with mental-illness are victims of gender-based violence such as sexual abuse.

[27]     At tab 5.6 is a report from Rwanda’s National Institute of Statistics on Gender Statistics. That report finds that 14-percent of women aged 15 to 49-years-old experienced physical violence within the 12 months proceeding the report. And 35 experienced physical violence since the age of 15.

[28]     Statistically, according to the report, 22-percent, or more than one in five women, have experienced sexual violence since the age of 15, and eight percent, or almost one in 10, experienced sexual violence within the 12 months proceeding the date of the report.

[29]     Of those women the proportion of women subjected to sexual violence by persons other than an intimate partner was 60.9, a significant amount of sexual violence against women in Rwanda comes from non-intimate partners, either friends, associates or strangers.

[30]     Putting this all together, as noted by the United Nations and by Rwanda’s own statistics, gender-based violence, including sexual assault against women in Rwanda is frequent and as noted occurs with general impunity. It is under-reported and despite the Government’s show of action in passing laws and establishing programs and centres to assist women, many of these programs that would provide assistance to vulnerable women in need are underfunded and underutilized. In particular, women who are otherwise vulnerable, such as women with mental-health issues, have a greater risk of experiencing gender-based violence.

[31]     There’s no evidence before me, there’s no documentation that you suffer a diagnosed mental­ health condition. However, you’ve testified, and I accept that since the sexual assault, understandably, you are afraid around men and you avoid socially interacting with men. That will, I find, mark you as someone vulnerable. You are still very young; you have never lived independently. You’ve had one job and– one job in Rwanda, and you were sexually assaulted within months of beginning that work.

[32]     You are — you’re a very intelligent young woman, but you are still quite young, you haven’t completed a university degree; you haven’t lived independently. All of these factors make you vulnerable and increase your risk of further gender-based violence if you were to return.

[33]     Your experiences are consistent with the documentary evidence. Gender-based violence remains under reported and the laws prohibiting rape, sexual assault, work-place harassment, are not effectively enforced.

[34]     You, yourself, experienced a stigma, not even from the sexual assaulter and his peer group, but from your own peer group following the sexual assault because they took the word of your rapist over your own word, the word of their friend. They took the word of a man they didn’t know that well over the word of a woman with whom they’ve been friends and classmates.

[35]     Considering all of the evidence before me in this particular claim, in particular the high, as stated, particularly high pervasive rate of gender-based violence in Rwanda. The lack of effective protection from the State in large part due to entrenched patriarchal attitudes that justify gender-based violence against women. And your particular characteristics as a young woman who has already experienced not just gender-based violence, not just a sexual assault, but also the stigma, harassment and exclusion from your friends following that assault.

[36]     You haven’t told your family and you don’t want to move away from them because they would ask why, because you’re afraid of your family’s reaction.

[37]     Considering all of the evidence before me, I find that you do face a serious risk of persecution because of your gender if you were to return to Rwanda. That persecution might take the place — might take the form of another sexual assault. It might result, it might simply be constant, ongoing harassment and discrimination amounting to persecution.

[38]     At tab 5.1 — sorry, 5.4, is a report from the Organization for Economic Cooperation and Development on Rwanda, Social Institutions and Gender Index for 2019 which makes clear that, despite Rwanda’s laws promoting gender equality, women are still subject to pervasive discrimination at home, at work, economically and at law. Not under the law, but when trying to access the protection of the law. This discrimination may certainly amount to persecution, particularly when it’s combined with your individual factors as a young, dependent women, already the victim once of gender-based violence.

State Protection

[39]     I find that adequate State protection would not be reasonably forthcoming. You have rebutted, in this case, the presumption of State protection.

[40]     You testified and I accept that you went to the police, they were dismissive and over a year, possibly more, the police took no action that you could see. There’s no reason to expect that they have done more since. You were there, you were available. The criminal, the man who sexually assaulted you was there, the police could have investigated, nothing has happened.

[41]     That is not inconsistent with the documentary evidence. Going back to the report at tab 5.4 the OECD states,

“Despite these efforts GBV remains pervasive as it was widely accepted by the society as a result of entrenched traditional patriarchal norms. Although reporting rates for GBV cases have increased as a result of the Government’s prevention and protection efforts, it remains under-reported due to victim’s fear of stigma, retaliation and women’s economic dependence on the perpetrator.

[42]     It goes on to state,

While the MAJ’s (Access to Justice Bureaus) provide a system of legal aid, there are no legal aid schemes for women that address their specific barriers in access to justice, including lack of economic independence and sociocultural norms that constrain them from filing a GBV or land-inheritance claims. The Government has identified lack of information about the legal system as a key constraint as women’s access to justice”.

[43]     Taking that into account, the Government has specifically identified lack of information as a key constraint on women’s access to justice. However, as the U.N. report at tab 5.3 notes, a particular reason for concern about ongoing risk faced by women in Rwanda is that the resources allocated to the provision of medical, psychological and legal assistance to victims of gender-based violence are insufficient.

[44]     Gender-based violence remains particularly high, in the words of the U.N., in Rwanda. It remains under-reported despite the Government’s efforts. And as you experienced and as you’ve seen in other cases, even when reported it does not necessarily lead to — it does not reliably lead to enforcement of those laws and consequences for the perpetrator of gender­ based violence.

[45]     So considering all of the information before me in this claim, I’m satisfied you would not receive adequate State protection if you were to return to Rwanda.

Internal Flight Alternative

[46]     I find you do not have a viable internal flight alternative. I find that you would face a serious risk of persecution throughout Rwanda.

[47]     The factors that we’ve discussed so far, the laws and the enforcement of the law, social attitudes and the prevalence of gender-based violence are not specific to Kigali, those are the general conditions that exist throughout Rwanda. If anything, one might expect that you would receive better assistance and better treatment in Kigali, the capital of the country and the largest city, the most metropolitan city, the centre of the Government. You’ve lived in Kigali all your life and this is what happened. There’s no reason to expect that conditions would be better in any other particular part of the country.

[48]     Also, if you were to relocate from Kigali, you would be even more vulnerable. You’ve never lived outside Kigali; you’ve never lived away from your parents. You have contact with some people in other cities, but it’s limited distant contact. For example, you were in contact with an uncle whose passed away. If you were to relocate, you would face an even greater risk of persecution because you would be perceived as, and you would be, even more vulnerable.

[49]     In conclusion, for these reasons, considering all of the evidence before me in this claim, I find you would face a serious risk of persecution because of your membership in a particular social group, as a woman, a victim of gender-based violence, if you were to return to Rwanda. You have a subjective fear of persecution that is objectively well-founded. You would not receive adequate State protection and you do not have a viable internal flight alternative.

[50]     For these reasons, I accept your claim.

[51]     So that concludes my reasons for the decision. Thank you for your patience through this process and thank you for being here today.

[52]     Counsel, thank you very much for your presentation. And I wish you the best of luck in the future.

[53]     CLAIMANT: Thank you. I would like to thank you and appreciate everything. I really appreciate with that understanding and belief, it’s very special.

[54]     PRESIDING MEMBER: It’s simply the hearing that you are entitled to under the laws of Canada. So, thank the law, but thank you.

— DECISION CONCLUDED

Categories
All Countries Rwanda

2019 RLLR 140

Citation: 2019 RLLR 140
Tribunal: Refugee Protection Division
Date of Decision: July 23, 2019
Panel: Me Dominique Setton
Counsel for the Claimant(s): El-Farouk Khaki
Country: Rwanda
RPD Number: TB8-31167
ATIP Number: A-2021-00256
ATIP Pages: 0000124-000127


REASONS FOR DECISION

INTRODUCTION

[1]       I have considered your testimony and the other evidence in the case and I am ready to render my decision orally.

[2]       These are the reasons for the decision in the claim of [XXX], who claims to be a citizen of Rwanda, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       In rendering my reasons, I have considered the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[4]       You allege the following: you claim to have a well-founded fear of persecution due to your sexual orientation as a homosexual man in Rwanda. You allege that you first felt that you were different at the age of 14 while in attendance at a seminary school. You confided in a friend called [XXX], who eventually lead you to connect with a group that tried to assist SOGIE people in Rwanda called Ubumwe. This lead you to meeting [XXX], also a student, with you and you became friends and lovers. You were discovered at school in the dormitory having sex by the headmaster, while the other students were class. This lead to a two week suspension, and your parents were notified. You returned long enough to write your exams to graduate, and then you returned to your hometown, but in a separate house away from the family. You continued to see [XXX]. Your father discovered this and arranged to have you arrested by police, where you were held for a week, and treated with severity. Your elder brother found a way to get you out of jail, and he made arrangements to have you sent to your grandmother’s where you stayed, in hiding. Your grandmother was ill one day and asked you to go to the store where you were spotted by people who knew you, and you fled never returning. Your bother found a safe place for you to stay and helped to make arrangements for you to leave Rwanda.

DETERMINATION

[5]       I find that you are a Convention refugee as you have established a serious possibility of persecution on account of your member of a particular social group.

ANALYSIS

[6]       The determinative issues in this case are credibility, state protection, and internal flight alternative.

Identity

[7]       I find that your identity as a national of Rwanda is established by your testimony and the supporting documentation filed including your passport, national identity card, and a letter from Black Cap Aids Prevention, and the Ubumwe from Rwanda, both of which identify you as a gay man.

Credibility

[8]       I find you to be a credible witness and therefore believe what you alleged in support of your claim. You provided educational documents and photos of you and your lover [XXX] in Rwanda, and you continue to be active in LGBTQ activities in Toronto.

[9]       You testified in a straightforward manner and, there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.

[10]     The panel also adverts to the principle from Maldonado v. M.E.I [1980] 2.F.C. 302, that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.

State protection

[11]     I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances. The objective documents in the National Documentation Package (NDP) for Rwanda, item at 6.1, The Rights of LGBTI People in Rwanda and item 6.2, Situation of sexual minorities, confirm that although homosexuality is not illegal, SOGIE persons are stigmatised and marginalised. The documents report that they are often jailed due to prevailing religious and cultural beliefs. Our research also confirms that in Rwanda, LGBT persons face arbitrary arrest and institutional discrimination, that human rights violations are underreported for fear of further persecution or stigmatisation.

Internal flight alternative

[12]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Rwanda. The country is very small, and the societal beliefs are the same everywhere. The claimant would not be able to continue to express himself freely as homosexual man in Rwanda.

CONCLUSION

[13]     Based on the analysis above, I conclude that you are a Convention refugee. Accordingly, I accept your claim.

(signed)           Me Dominique Setton

July 23, 2019

Categories
All Countries Rwanda

2019 RLLR 117

Citation: 2019 RLLR 117
Tribunal: Refugee Protection Division
Date of Decision: April 26, 2019
Panel: Miryam Molgat
Country: Rwanda
RPD Number: VB8-02636
ATIP Number: A-2020-01459
ATIP Pages: 000228-000232


— DECISION

[1]       PRESIDING MEMBER: This is the decision in the claim of Mrs. [XXX]. I have considered your testimony and the other evidence in the case and I’m ready to tender my decision orally. I would like to add that in the event that written Reasons are issued, a written form of these Reasons may be edited for spelling, syntax and grammar and references to the applicable case law and documentary evidence may also be included.

[2]       The claimant claims to be a citizen of Rwanda and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I find that the claimant is a Convention refugee as the claimant does have a well-founded fear of persecution on a Convention ground in Rwanda. My reasons are as follows.

[3]       The claimant’s complete allegations are set out in the Basis of Claim Form at Exhibit 2 and need not be repeated here in detail. To summarize briefly, the claimant is a woman born in 1979. She left her country on [XXX], 2018. She left behind her three children, her siblings and her mother. Her claim is based on gender-related abuse from her husband, [XXX] (phonetic). The abuse was sexual and physical in nature. The certainly sought state protection to no avail. She suffered a miscarriage as a result of her husband’s abuse. She was repeatedly raped by her husband in the course of their marriage. Her husband is employed by the [XXX] and is associated with the [XXX].

[4]       The claimant alleges that neither state protection nor safe and reasonable internal flight alternatives are available in her country of nationality. The main issue is state protection.

IDENTITY

[5]       The claimant’s national identity has been established by the testimony and the supporting documentation filed and entered in the proceeding. The current passport is on file, along with other documents. I’m satisfied of the claimant’s identity.

NEXUS

[6]       For the claimant to be a Convention refugee, the fear of persecution must be by reason of one of the five grounds enumerated in the Convention refugee definition. In other words, the claimants must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. I find that the harm feared by the claimant is by reason of one of the five grounds enumerated in the Convention refugee definition, namely, as a woman victim of domestic abuse, i.e. membership in a particular social group.

[7]       Turning to credibility, when credibility is assessed there are two principles that are followed. Firstly, when the claimant swears to the truthfulness of certain facts there is a presumption that what she is saying is true unless there’s reason to doubt it. Secondly, when assessing credibility, the panel is entitled to rely on rationality and commonsense. The determination as to whether the claimant’s evidence is credible is made on a balance of probabilities.

[8]       I had concerns regarding credibility because of the significance of some of the Basis of Claim Form amendments and very specifically the amendment relating to the claimant’s husband’s association with the DMI. DMI is the [XXX]. I also had credibility concerns regarding a certain lack of corroborating evidence in support of her allegations.

[9]       Having heard the claimant’s testimony and having observed her in person, I find her credible. Her demeanour was very credible. Her face was very expressive and was a direct and contemporaneous expression of emotions that her testimony conveyed. There was a lack of embellishment to her testimony. She many times simply said, “I don’t know” when asked questions. Her testimony was direct. Her explanation for some of the omissions from the original Basis of Claim Form were reasonable. She explained that she had so many things in her head and I found that her explanation for what she meant by that was very credible and directly supported the subject matter of the Chairperson’s Gender Guidelines in terms of what one can reasonably surmise and expect in the testimony of gender-related persecution, which in this case is a history of horrific abuse at the hands of her husband. So I draw you negative inference from the fact that certain aspects of the claimant’s material allegations were not in her original Basis of Claim Form.

[10]     In addition, she added credible testimony in her hearing which was not in the Basis of Claim Form, for example, explaining that she had considered divorce and she provided a reasonable explanation for why she did not go ahead and actively take steps to obtain a divorce from her husband and she also said that her husband threatened her and said that she would only leave the house dead.

[11]     The claimant was able to reasonably and consistently explain why she had failed to mention the DMI in her original Basis of Claim Form and she was able to credibly testify to her husband’s employment history. Given the relatively secretive nature of [XXX], I found her lack of detail on his employment with the DMI and how he combined that with his [XXX] to be credible. To draw a parallel, unless the spouse worked for the [XXX] in the case of Americans, I would not reasonably expect the spouse to know a lot about what the other spouse in the marriage did while employed by the [XXX], for example.

[12]     I further note that the claimant, who has 12 years of education, came across as relatively unsophisticated and that this helped me to understand certain perceived gaps in the credibility which she was able to resolve to my satisfaction at the hearing.

[13]     Moving on to the question of subjective fear, I found her credibility in this regard to be -­ her testimony in this regard to be credible and she provided reasonable explanations for why she had not sought refugee status in the United States. She explained in a spontaneous way why she had decided to come to Canada and why she had chosen Vancouver specifically. Her explanation had to do with the lack of a significant Rwandan population here and the fact that she knew no one in Canada, unlike the situation of the people she was visiting with in the United States. So I found that that aspect of her oral testimony added to her credibility and actually positively contributed to a finding that she does have a subjective fear.

[14]     Turning to the determinative question of state protection, it was open to the claimant, according to the law, to rebut the presumption of state protection with clear and convincing evidence. Individual police figures do not prove that state protection is inadequate and it is unclear to me whether the claimant reasonably tested the effectiveness of state protection in Rwanda. I disagree with counsel as to whether there is adequate state protection for domestic violence in Rwanda but, ultimately, that’s neither here nor there because I agree with counsel that the claimant, in her specific case, is unable to access effective adequate state protection and I will start the analysis by assuming, for the purposes of analysis, that there is acceptable enough or adequate enough state protection for domestic violence in Rwanda that one needs to try to understand why the claimant did not make further efforts to obtain state protection.

[15]     I note in this regard that the Response to Information Request, RWA104588.E, which is item 5.1 of the National Documentation Package at Exhibit 3, provides detailed information on the existence of hotlines and of one-stop centres and on the fact that there are gender desks at the police station and that there is a gender desk within the Rwandan Defence Force and Ministry of Defence.

[16]     I note, and I agree with counsel, that there are shortcomings to the state protection measures in place in Rwanda for domestic violence, but I do note, for example, still from this Response to Information Request, that there have been several convictions perpetrated of domestic violence. For example, there was a conviction of 115 perpetrators of spousal harassment and there was a conviction of 53 perpetrators of adult rape. I note that the possible sentence for spousal rape is notably lower than that of adult rape outside of marriage and I note that, in general, the attitude in Rwanda appears to be that this is often a private matter which should be resolved, probably to the detriment of the victim, within the family. But all the same, when I look at the extensive information in this Response to Information Request, I found that there were more avenues that the claimant could have pursued and did not.

[17]     However, I find that in her case she would not have been able to access adequate state protection, not because of a problem with the Rwandan Police, who are the first level of response to complaints of domestic abuse, but rather because of her husband’s association with the DMT.  This matters not only because of what I find is objective evidence supportive of an adequate level of state protection for domestic violence in Rwanda, but also because the claimant twice testified that had her husband not worked for the DMI, she would have been able to get state protection. I can’t ignore that testimony and even less so when it was clear and direct, unsolicited. It was not in response to a direct question and it came twice during the hearing.

[18]     Now, turning to the DMI, as was well argued by counsel, it’s not surprising that there’s little information on the DMI, given the nature of its work. I find that the DMI does exist. As is indicated by Exhibit 6, it is a notorious agency and I find that, on a balance of probability, it is an agency with malevolent goals and practices. Unlike the evidence on the Rwandan Police, which seems to be more mixed, the evidence on the DMI would point to an agency which has specialized in human rights abuses conducted in a covert way and, as the claimant’s testimony on what little she knew of her husband’s work, fully supported this. She said that she went out at night. She said that he came back with bloodstained clothes and she provided during the hearing testimony that was shocking with regards to what the DMI seem to do, which in that case was to blow up the home with the family inside the home of people who are political opponents of the Rwandan government, and this was in addition to information that she had already provided in her Basis of Claim Form of people being persecuted in front of her and her husband showing her the abuse as a way of further intimidating her.

[19]     In addition to her husband working for the DMI, she has established that he is someone who is evil and who continues to want to harm her and her family members. Her testimony on what has happened to her family members since she left was credible. I note that at one point he was sentenced to a criminal sentence, but I found that that is not enough for me to conclude that he no longer has the profile or the motivation or the capacity to persecute her should she return to Rwanda and I further find that this profile of his is such that I find that he would thwart any serious attempt on the claimant’s part to obtain state protection.

[20]     When asked why she did not complain at a police station where her husband was not employed, the claimant spontaneously testified that that is not how it works and that it’s not possible to do so. I accept that explanation and I accept that she did complain twice to the police of her husband’s domestic abuse and that there was an utter failure of state protection in response to this. So given all of this, I find that the claimant has rebutted the presumption of state protection with clear and convincing evidence.

[21]     Turning to the last question, which is that of internal flight alternative, it was not canvassed at the hearing, but I find that, given her husband’s profile and the fact that he is employed by the DMI, I find that the claimant faces a serious possibility of persecution throughout Rwanda as the state is in control of the entire territory and it would not be difficult for the claimant to locate her should she return. It’s clear that he’s motivated to do so and, in addition, Rwanda is a geographically quite small country.

[22]     In conclusion, having considered all of the evidence, I determine that there’s a serious possibility that the claimant would be persecuted in Rwanda for one of the five grounds enumerated in the Refugee Convention.  I find that the claimant is credible. She has established that her husband works for the DMI and has the motivation and capacity to continue to persecute her should she return to Rwanda. This matters, as it relates to the determinative issue of state protection.

[23]     Having come to this conclusion, I have not conducted further assessment under section 97(1) of the Act. I conclude that the claimant, Mrs. [XXX], is a Convention refugee and I, therefore, accept her claim.

— DECISION CONCLUDED

Categories
All Countries Rwanda

2019 RLLR 80

Citation: 2019 RLLR 80
Tribunal: Refugee Protection Division
Date of Decision: September 26, 2019
Panel: Julie Morin
Country: Rwanda
RPD Number: MB9-02867
ATIP Number: A-2020-01459
ATIP Pages: 000006-000010


[1]       So, I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally today. These are the reasons for the decision in the claim of [XXX], who claims to be a citizen of Rwanda, and is claiming refugee protection pursuant to section 96 and paragraph 97(1) of the Immigration and Refugee Protection Act.

ALLEGATIONS

[2]       You allege the following. You are a political activist. You are against the government of Paul Kagame, who is the current President in Rwanda right now. You’re coming from a family with a history because your father was targeted by the regime. He was part of the same party, but your father opposed the President and he was, you said in your testimony actually, that he was killed by the regime, from what I understood. Yourself, in 2013, you started your social involvement by funding a non-governmental organization called “Help a Child Initiative” which was in 2013, as I mentioned, until 2015. But you explained to me as well that the government asked you… You were able to gather a lot of parents to take care of children, and the government wanted you to promote the referendum and ask the parents to vote “yes” to the referendum. At that time, you refused to do that, and you left the organization.

[3]       You left Rwanda for a few years, two years actually. You worked in Dubai. Then, you came back to Rwanda and then, there, you started to work with, I should say closely, with Diane Rwigara. Supporting her in her… in her… in her campaign, and she was running for President at that time. You said that, even like you were in Dubai, you called her to give her your support. Then, after that, the government just did not allow her to continue to run as President, but you decided with her and with a group of people to continue your political involvement. And, you founded a movement called “[XXX] Movement”. And, the election took place in August 4th,  2017. You…  Diane Rwigara was not a candidate; she was not allowed as I mentioned.

[4]       Then, yourself, you started to have problems. You left Rwanda for the United States in [XXX], 2018, but during that year there was a lot of problems you had. You were arrested twice in August 2017, and in October as well. You were interrogated. You were even accu… You appeared in court and you provided the judgement from the court. You were accused of being… of having influence or wanted to… like an enemy of the nation, being against the government and bringing the youth in your movement. You were…  You had to report to the police every week, then, until December 2017, but that continued after. You received phone calls, and in January threats. You were worried, but finally after a few months you…  you left for the U.S. And, after, even like… When you left, and in October 17, you received a second summons. The government was still after you. You had to report to the authorities for criminal case… for a criminal case. There is no detail, but you, of course, you didn’t go. You were in the U.S.A friend … A co-worker actually sent you the summons, so you were able to provide the original today. So, you’re… The authorities are still looking for you and you’re afraid of going back to Rwanda because of your political activities, your political opinion.

DETERMINATION

[5]       This is my decision. I find that you are a “Convention refugee” as you have established a serious possibility of persecution on account of your political opinion.

ANALYSIS

IDENTITY

[6]       I find that your identity as a national of Rwanda has been established through your testimony and also the supporting documentation filed, namely your passport from Rwanda. In the passport, there was also your American Visa, and your identity was established through that process as well.

CREDIBILITY

[7]       I find you to be a credible witness and therefore I believe what you have alleged in support of your claim. You testified in a straightforward manner, and I didn’t find contradictions or omissions between your testimony and the other evidence I have. I think that you had   you had a lot to say. For instance, you wanted to speak about your family background. I think you were influenced by your father’s decisions in your activities and the way you… in your thoughts as well. So, for that, I find that you were credible.

[8]       Also, you provided important documentation, the membership card from the [XXX], Diane Rwigara’s movement. You provided this card in P-2. You provided as well in P-3 the decision of the court. You were accused, most precisely, you were accused of crime of discrimination, divisionism among the youth, instigating divisions to hate the country and leaders, as well as genocide ideology, as stated in your case. So, this is a serious accusation in the judgement, but from the evidence I have, you only express your political opinion and you were fighting for your ideas. There’s also P-4, the summons you received from… the second summons you received while you were… while you were in the United States in October 2018. It says, as I mentioned, it refers to “criminal cases”. It doesn’t say precisely what it is, but it says if you will not appear, you will be apprehended by authorities in charge. So, they are ready to arrest you. But you didn’t. So, I took all these exhibits into consideration, and I find that they contribute to your allegations … in supporting your allegations.

OBJECTIVE BASIS OF FUTURE RISK

[9]       Based on the credibility of your allegations, and the documentary evidence that I have, I find that you have established a future risk that you will be subjected to the following harm: arrest, detention, torture, and death, possibly, death. The torture… You were submitted to torture before, and also, you also mentioned that you have… there are people who are involved in your movement who have simply disappeared. The fact that you face this risk is corroborated by the following documents, and this is the last version of the NDP. So, there are a lot of documents about how the authorities are treating opposition in Rwanda. So, for instance, on the Rwandan authorities suppressing dissent through violence and intimidation, and on individuals who are subjected to arbitrary arrest and physical abuse in custody, this is in tab 2.3. On the fact that political parties are unable to function normally in Rwanda because of arrest and harassment of their members, this is in tab 2.4. There is only one opposition party registered in Rwanda. The other parties, they cannot be… they are not allowed, and this is in tab 2.4. On the repression of any dissident voice qualified as being enemy of the nation, this is in tab 2.7. And, on opposition parties and media reduced to silence, this is in tab 2.7. Now, we spoke about the father of Diane Rwigara, Assinapol Rwigara, who died in 2015, officially it’s from an automobile accident, but the family suspects that… the family believe that it was orchestrated, and this is in tab 4.12 and also in tab 9.1.

NATURE OF HARM

[10]     This harm clearly amounts to persecution.

STATE PROTECTION

[11]     I find that there is clear and convincing evidence before me that the State is unable or unwilling to provide you with adequate protection. In fact, the State is the agent of persecution, and the State is looking for you. You provided this… this evidence, the second summons, that they want to arrest you. So, I don’t think that it would be reasonable for me to tell you “well, you go and ask for protection from the State”. You would be at risk I believe. There are a lot of arrests of members of the opposition, leaders, activists and journalists right now in Rwanda, and this is in tab 4.1. This is a Human Rights Watch report that details this information. There are also disappearances. People, they disappear simply or they are like you are… you were, actually. They are… They have… They are charged with criminal cases. So, that is not State protection. In fact, the State wants to punish these people.

INTERNAL FLIGHT ALTERNATIVE

[12]     I have considered whether you would be able to go to another region of Rwanda and on the evidence before me, I find that there is serious possibility of persecution throughout Rwanda. There is, in a report in tab 2.7, which explains that though in Rwanda there is some economic success, and it appears to be a great country. But in fact, there is a repression and it is an authoritarian State now in Rwanda. People have a fear of expressing their ideas. There is, again, disappearances of people or opposition members, assassinations. So, this is all in this report, as I mentioned.

CONCLUSION

[13]     Based on the analysis above, I conclude that you are a “Convention refugee” and therefore I accept your claim.