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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

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