Categories
All Countries Sudan

2019 RLLR 105

Citation: 2019 RLLR 105
Tribunal: Refugee Protection Division
Date of Decision: April 5, 2019
Panel: Eric Omeziri
Counsel for the Claimant(s): Howard P Eisenberg
Country: Sudan
RPD Number: TB8-14259
Associated RPD Number(s): TB8-14258, TB8-14260
ATIP Number: A-2020-01459
ATIP Pages: 000154-000160


REASONS FOR DECISION

[1]       The principal claimant, [XXX] and her daughter [XXX], allege that they are citizens of Sudan and no other county. The principal claimant’s daughter [XXX] is a citizen of the United States. They are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act1 (IRPA).

[2]       The principal claimant was appointed the designated representative of the minor claimants pursuant to subsection 167(2) of the IRPA.

ALLEGATIONS

[3]       The details of the claimants’ allegations are fully set out in the principal claimant’s Basis of Claim (BOC) form.2 To summarize, the principal claimant alleges a fear of persecution in Sudan based on her anti-government political opinion.

[4]       The principal claimant alleges past persecution at the hands of the Sudanese National Intelligence and Security Service (NISS), who have arrested her on multiple occasions due to her activities in opposition of the ruling government and in support of the Nubian people.

[5]       The principal claimant remained active in Sudanese politics after relocating to the United Arab Emirates (UAE) and Egypt in 2013 and 2016, respectively.

[6]       During a 2017 visit to Sudan, the principal claimant was arrested, detained for several days and physically mistreated due to her prior political activity. With the assistance of an individual within the Sudanese police, the principal claimant escaped Sudan for Egypt. Fearing that she may be returned to Sudan, as her status in Egypt was temporary, in [XXX] 2018, the principal claimant travelled to Canada via the United States (US) to seek refugee protection.

[7]       In addition to the claimants’ fear of persecution at the hands of Sudanese authorities. The claimants also fear that the female claimant’s family would force her daughters to undergo female genital mutilation if they were to return to Sudan. The panel makes no finding on this issue due to the disposition of the claim based on political opinion.

DETERMINATION

[8]       Having considered the totality of the evidence, the panel finds that the principal claimant and her dependent daughter, [XXX] are Convention refugees pursuant to section 96 of the IRPA. The principal claimant faces a serious possibility of persecution in Sudan based on her political opinion, while the dependent claimant has a derivative risk of persecution based on her membership in a particular social group-that of family member of the principal claimant.

[9]       The panel also finds that the principal claimant’s youngest daughter, [XXX], has not established that she faces a serious possibility of persecution under the Convention, nor has she established that, on a balance of probabilities, she would personally be exposed to a risk of torture, to a risk to her life, or to a risk of cruel and unusual treatment or punishment if she were to return to the US.

ANALYSIS

Identity

[10]     With respect to the principal claimant and her eldest daughter’s personal identities, the panel finds that on a balance of probabilities, their identities as a citizens of Sudan have been established by their passports and the principal claimant’s testimony.

[11]     Likewise, the personal identity of the principal claimant’s youngest daughter, has also been established, on balance, and the panel finds that her identity as a US citizen has been established by her passport and the principal claimant’s testimony.

Credibility

[12]     Overall, the claimants were found to be credible. The principal claimant provided testimony which was consistent and included spontaneous details not included in the Basis of Claim form.

[13]     The principal claimant’s testimony did not contradict the declarations within the Basis of Claim form and there were no significant inconsistencies or omissions.

[14]     The principal claimant provided credible testimony with respect to her anti-government political activity on behalf of the Nubian community, which began while she was attending high school in Sudan. She further detailed how she continued to advocate publicly for Nubian causes, protesting against dam building in the Nubian region, raising money for the anti-dam committee, participating in committee meetings, as well as participating in Nubian cultural activities and awareness campaigns.

[15]     The principal claimant’s anti-government political activity made her the subject of repeated arbitrary arrests and extra-judicial detention by the Sudanese National Intelligence and Security Service (NISS). The principal claimant provided credible testimony regarding the events leading up to her arrests, her experience in detention, as well as her activities following her release.

[16]     The panel has also considered the principal claimant’s testimony regarding her political activity online and since arriving in Canada. The principal claimant provided convincing testimony regarding her participation in anti-government protests in Toronto and St. Catharines, Ontario in late 2018. The principal claimant also provided testimony about her anti-government activity online and, using her mobile phone, she was able to spontaneously show the panel that she was subscribed to an anti-government message group on WhatsApp.

[17]     In addition to the principal claimant’s credible testimony, the claimants also provided supporting documents which I found to be credible, they include:

a.         Letter of support from the Secretary General of the Nubian House in Abu Dhabi

b.         Letter of support from the Anti-dam youth committee of Dal and Kajbar Dams

c.         Letters of support from friends and family which corroborate the claimants’ allegations

d.         Photographs of the principal claimant’s participation in anti-government protests in Canada

[18]     As such, the panel finds that, on a balance of probabilities, the claimants have established that the principal claimant has a subjective fear of persecution due to her anti-government political opinion.

Nexus Section 96

[19]     The panel finds that there is a link between the principal claimant’s fear of persecution and the Convention grounds, specifically that the principal claimant has been persecuted by the Sudanese Government because of her anti-government political opinion, therefore this claim has been assessed under Section 96 of the Immigration and Refugee Protection Act.

Objective Basis

[20]     The evidence before the panel establishes, on a balance of probabilities, an objective basis for the claimant’s fear of persecution. Item 1.4 of the National Documentation Package for Sudan states that the NISS is responsible for the management of operations for national security, and under Sudanese law individuals suspected of a threat to the State may be detained by the NISS indefinitely.

[21]     The same law provides NISS officials with impunity for acts involving their official duties and that its current human rights violations have reached unprecedented levels. The objective documentary evidence also cites examples of the NISS using excessive and sometimes lethal force in breaking up demonstrations, protests, and rallies as well as conducting raids and confiscations.

[22]     The NISS arbitrarily arrests and detains Sudanese citizens, often detaining these individuals for a few days before releasing them without charge. The Sudanese government often targets political opponents and suspected rebel supporters and the NDP also makes reference to several reports of individuals being detained for their actual or assumed political or anti¬≠ government political opinion.

[23]     The panel has also considered the risk to the principal claimant’s Sudanese child. The NDP for Sudan provides evidence of the targeting of family members of political opponents. Item 1.7 describes the situation of the brother of [XXX] – a noted Darfuri Sudanese Human Rights Defender-who was kidnapped in Khartoum by members of the NISS and taken to a deserted location in Khartoum, and beaten and subsequently released.

[24]     Item 2.1 of the NDP also make reference to numerous reports of violence by Sudanese government authorities against the family members of Darfuri student activists.

[25]     Therefore, I find that the principal claimant’s Sudanese born child has a risk of persecution based on the membership in a particular social group, that of a family member of the principal claimant.

[26]     The panel has considered the documentary evidence in conjunction with the principal claimant’s credible allegations about her identity as an individual with an anti-government political opinion. Having considered these factors, the panel finds that the principal claimant and her eldest daughter do have a well-founded fear of persecution.

State Protection

[27]     As the agent of persecution is the State which, as mentioned above, does act with impunity, the panel finds that there is clear and convincing evidence that adequate State protection would not be available to the claimant.

Internal Flight Alternative

[28]     Likewise, since the Sudanese government is in control of the entirety of the country, the panel finds that there would be no safe place for the claimants throughout the country and that there is no viable internal flight alternative for the claimants anywhere in Sudan.

CONCLUSION

[29]     Based on the totality of the evidence before it, the panel concludes that the principal claimant, [XXX], and her daughter, [XXX], are Convention refugees and accepts their claim.

[30]     The minor claimant, [XXX], has not established she faces a serious possibility of persecution in the US and is not a person in need of protection without recourse to state protection. The panel must find the minor claimant is not a Convention refugee under section 96 or person in need of protection, under section 97(1) of the IRPA and rejects her claim.

(signed)           E. Omeziri

April 5, 2019

1 Immigration and Refugee Protection Act (IRPA), sc, 2001, c 27, as amended.
2 Exhibit 2, BOC.

Categories
All Countries Sudan

2019 RLLR 96

Citation: 2019 RLLR 96
Tribunal: Refugee Protection Division
Date of Decision: September 10, 2019
Panel: S. Charow
Counsel for the claimant(s): Aishah Nofal
Country: Sudan
RPD Number: TB8-03866
Associated RPD Numbers: TB8-03910, TB8-03947, TB8-03948
ATIP Number: A-2020-01459
ATIP Pages: 000090-000095


DECISION

[1]       MEMBER: This is the decision for [XXX] File TB8-03866 the associated adult claimant [XXX] File TB8-03910 and the associated minor claimants [XXX] File TB8-03947 and [XXX] File number TB8-03948.

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

[3]       You’re claiming to be citizens of Sudan and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[4]       The principal claimant has been appointed as the designated representative for the minor claimants, his children. I find that you are Convention refugees for the following reasons;

[5]       The allegations of your claims can be found in your basis of claims forms at exhibits 2 through 5 and the subsequent amendments at Exhibits 8 and 13.

[6]       In short you allege persecution from Sudan’s national intelligence and security service or NASS based on essentially two things. First you allege that you were arrested with a colleague for printing pro (inaudible) materials and that you were also the last one to see that colleague alive.

[7]       Secondly you allege that you’ve been politically active online after leaving Sudan and the NASS has been monitoring these posts. You allege receiving threats including threats of being met at the airport if you return to Sudan because of this online posting. You fear future physical harm or death for yourself or your family should you return to Sudan.

[8]       I note that there were allegations made about the risk of female genital mutilation for the female minor claimant. I will not consider that as it is not determinative because your political opinions and your family’s membership in a particular social group due to your political opinions are the determinative issue in this matter. You allege there’s no state protection for you nor any internal flight alternative.

[9]       Based on the Sudanese passports in exhibit 1 and your overall credible testimony I do find that identity and country of reference have been established on a balance of probabilities.

[10]     I further find that on the balance of probabilities you have established that you and your family will be at risk of persecution because of your political opinion.

[11]     I did note some issues with your testimony; specifically I noted a basis of claim or a basis of claim amendment, omission of someone assisting you in getting your passport when you first left Sudan.

[12]     I further note that there was very little mention of any social media activity at all in your basis of claim form or the subsequent amendment but very specifically you had allege that you received threats over Face book because of the way you were posting about Sudanese political issues, there was no mention at all of any threats in your basis of claim form or the subsequent amendments.

[13]     I did put these issues to you over the course of the hearing; although you’ve provided some explanation I was not satisfied that your explanations adequately explain these omissions. That does negatively impact your credibility.

[14]     However I do balance those issues with the other parts of your testimony which I did find to be credible. This includes detailed, spontaneous evidence about your arrest. I note that on this line testimony, your testimony was consistent with your basis of claim form and you were able to give details when asked to do so that went beyond your basis of claim description of these events.

[15]     I did find this to be very persuasive. I also note that in support of your claim you provided additional documents to substantiate your allegations. I note pictures of the claimant’s attending protests here in Canada, pictures of attending an event which was essentially about a book that had been authored about corruption and other issues with the NISS, a letter from your brother explaining that you had discussed this event and you had sent him a photo of you in that author and that subsequently your brother had been arrested and questioned about this activity.

[16]     I further see the What’s app messages with your brother where you had discussed the event. I note photographs of your brother’s injuries after he had been arrested, letters from the brother of your co¬≠worker who had been arrested at the same time as you in 2006, medical reports from here in Canada confirming scaring and getting the opinion that the presentation of your injuries is consistent with the allegations about how you received those injuries and I further note letters from your mother and sister and brother to confirm that they witnessed or experienced your arrest.

[17]     Today you also showed me on your phone that you under an assumed name on Face book but still one that could be connect to you and your family had made posts in groups entitled no to high prices, freedom to Sudanese people, no to greed hash tag independent justice system the revolution continues, the national movement group, republican brotherhood and the November 27th movement civilian take over.

[18]     You did show me that directly through Face book and I was able to navigate through that, we were able to have that interpreted by cite by Madame Interpreter.

[19]     I’ve also considered whether your re-availments to Sudan negatively impact your credibility; however you’ve offered evidence that your mother was ill and you felt you needed to go back and went with the assistance of someone who worked at the airport.

[20]     In consideration of the supporting documents provided at Exhibit 10 which do establish your mother’s illness, I do find that you’ve offered a reasonable explanation for these re-availments, it does not impact your credibility.

[21]     I further considered whether your failure to claim asylum in the Netherlands impacts your credibility, however you’ve testified that at that time you had stable status in Oman and there was no risk of not, there was no risk should you have not made a claim there. I do find that’s a reasonable explanation for that failure to claim again it does not impact your credibility.

[22]     I further considered whether your failure to claim asylum in the United States after you had lost status in Oman negatively impacts your credibility. You explained that the intention was to claim protection in Canada. You spent four days in the United States before crossing irregularly into Canada.

[23]     You had also testified that you completed your own research into the situation in the United States and had learned that the United States had anti-immigrant policies at that time. In consideration of the current political climate in the United States and your relative short stay there again four days, I do find that you’ve offered a reasonable explanation for your failure to claim asylum in the United States. I will not draw any negative inference regarding your credibility from this issue.

[24]     I do find that the credible evidence available to me outweighs the negative credibility inferences I drew from the omitted allegations.

[25]     Therefore overall I do find you to be credible. I therefore find your allegations as outlined in your basis of claim form and your testimony to be credible. I find that you’ve established your subjective fear.

[26]     I find there’s a link between what you fear and two of the five convention grounds, specifically you have been persecuted by the Sudanese government and may be at risk of further persecution because of your antigovernment political opinions.

[27]     I also note that the associated claimants hold membership in a particular social group as the family member of someone with a political opinion. Therefore these claims have been assessed under Section 96 of the Immigration and Refugee Protection Act.

[28]     The objective documentation supports your allegations that individuals in your circumstance face persecution in Sudan. Before I discuss the available evidence I will note that I can take notice that there has been a change in the regime in Sudan, I can take notice from the available news that we can see on a regular basis, however when considering that I note that any report that I’ve seen suggests that this regime change is in name only. There’s no evidence before me to describe any improving situation in Sudan, rather there’s still evidence of people being persecuted for political opinions.

[29]     There’s no indication that this would stop just because the person at the head of the government has changed. Without that evidence I will still rely on the national documentation package as found at Exhibit 6 of the national documentation package for Sudan.

[30]     I specifically note Item 1.4 which states that the NISS is responsible for the management of operations for national security. Under Sudanese legislation individuals suspected to be a threat to the state may be detained without charge for up to forty five days without judicial review.

[31]     I also note that the same piece of legislation provides NISS officials with impunity for acts involving their official duties. This evidence suggests or states that though the NISS has for the last decade perpetrated human rights violations with impunity, its current human rights violations have reached unprecedented levels.

[32]     The NISS has used excessive and sometimes lethal force in breaking up demonstrations, protests and rallies as well as office raids and confiscation of newspapers, perpetrated arbitrary arrests and deliberately targeted ethnic and religious minorities.

[33]     There were also several reports of individuals detained due to their actual or assumed support of antigovernment forces.

[34]     I’ve considered this documentary evidence in conjunction with your credible allegations about your political opinions. I find that you have a well founded fear and that you face a serious possibility of persecution based on your political opinion.

[35]     I further note that the national documentation package states that there’s evidence of the Sudanese authorities targeting family members of people who are of interest to them. I refer to Items 1.4 and 1.7 of the national documentation package.

[36]     Therefore I find that there is a well founded fear and a serious possibility of persecution for the associated claimants in this matter, as family members of someone with a political opinion.

[37]     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. Likewise as antigovernment political opinions are persecuted throughout the country and the NISS operates across the country there would be no safe place for you anywhere in Sudan.

[38]     As the test for an internal flight alternative fails on the first prong I find there would be no internal flight alternative available.

[39]     Based on the totality of the evidence I find the claimant’s to be Convention refugees. Your claims are therefore accepted.

[40]     So this will conclude today’s hearing. I’d like to thank everyone for their participation. Thank you Madame Interpreter, thank you counsel and thank you both.

———- REASONS CONCLUDED ———-