Citation: 2021 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: January 18, 2021
Panel: Nalong Manivong
Counsel for the Claimant(s): Johnson Babalola
Country: South Africa
RPD Number: MB8-07585
Associated RPD Number(s): MB8-07686/MB8-07687
ATIP Number: A-2022-00210
ATIP Pages: 000062-000068
REASONS FOR DECISION
INTRODUCTION
[1] The claimants, XXXX XXXX XXXX (“principal claimant”) and her two sons, XXXX XXXX XXXXand XXXX XXXX XXXX (“minor claimants”) are citizens of South Africa who are seeking refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“IRPA”).1
[2] The principal claimant acted as the designated representative for the two minor claimants.
[3] Throughout the proceeding and in the decision-making process, the Panel applied the
Chairperson ‘s Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution.
DETERMINATION
[4] The Panel finds that the claimants are “Convention refugees” as they have established that there is a serious possibility that they will be persecuted on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and by reason of the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution, pursuant to section 96 of the IRPA.
[5] The determinative issue in this claim relates to the allegations on gender-based persecution. Therefore, the Panel will not make a finding with respect to the other allegations regarding Xhosa customs and rituals and forced male circumcision of the minor claimants.
ALLEGATIONS
[6] The principal claimant’s allegations are fully set out in her Basis of Claim (“BOC”) forms2 and amendments. The minor claimants relied on the principal claimant’s narrative.
[7] In summary, the claimants allege persecution and risk to their lives at the hands of her ex- common-law husband, XXXX XXXX, a Zulu chief (“Chief”) in the neighbouring village.
[8] The principal claimant alleges that she was born out of wedlock in a rural area called XXXX XXXX XXXX XXXX in KwaZulu-Natal. Her maternal uncle assumed guardianship and betrothed her to the Chief in exchange for a bride price when she was twelve years of age. The Chief sexually abused the principal claimant.
[9] The principal claimant alleges that she had an affair and became pregnant with another man’s child and gave birth to her first son on XXXX XXXX XXXX XXXX. When the child did not resemble the Chief, he ordered a paternity test which revealed that the child was not his. The Chief ordered the child to be killed. The claimants fled XXXX and went to live with a friend in Umlazi, Durban and later found work at the XXXX XXXX XXXX.
[l 0] The principal claimant alleges that the father of her son died in XXXX 2010 because of a car accident. According to the police, the brakes of his vehicle had been tampered with. The police arrested the perpetrator who confessed that he was hired by a Zulu man. In XXXX 2010, the Chief discovered where the principal claimant had work and sent men to threaten her and her son. These men sent her a message stating that the Chief could find her and her son and they would end up like her son’s father.
[11] The principal claimant moved to a different part of town. She became involved with another man at work and became pregnant and gave birth to her second son on XXXX XXXX XXXX XXXX. The following year, the Chief found out where she lived and sent four men to assault her and her children. The men told her that since she refused to return home to be with the Chief that no one could have her. She was hospitalized for two weeks.
[12] The principal claimant filed and received a protection order from the court in XXXX 2015. The principal claimant alleges that she moved to various cities and the Chief would cause problems for her in various placed she relocated to up until the time she left South Africa. The claimants left South Africa on XXXX XXXX XXXX 2018 and stayed in the United States until XXXX XXXX XXXX 2018. They arrived in Canada and filed for asylum.
ANALYSIS
Identity
[13] The Panel finds that, on a balance of probabilities, the claimants have established their personal identities and identities as South African citizens through the principal claimant’s testimony and the documentary evidence, in particular, the certified true copies of their South African passports.3
Nexus
[14] The Panel finds that the claimants have established a nexus to section 96 of the IRPA on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution.
Credibility
[15] Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness.4
[16] The Panel finds that the principal claimant is credible and therefore believes what she has alleged in support of her claim. She testified emotionally, without any embellishments, and there were no inconsistencies in her testimony or contradictions between her testimony and the other evidence before the Panel. She submitted corroborative evidence, namely medical records, copies of protection orders, support letters as well as photos of attacks on one of her sons.5
[17] The principal claimant’s testimony provided the Panel with insight into the way that the critical events had unfolded and contributed favourably to the finding of credibility. Therefore, the Panel accepts that the claimant subjectively fears persecution at the hands of her husband in South Africa.
[18] The objective documentary evidence supports the claimants’ allegations regarding gender- based persecution in South Africa.
[19] According to Tab 5.7 of the National Documentation Package (“NDP”),6 which is a comprehensive report on gender-based violence (“GBV”) in South Africa the two main drivers of intimate femicide are jealousy and possessiveness. These feelings are rooted in notions of masculinity where men see women as their property which they need to maintain power and control over. These men often use guns to intimidate partners especially when they threaten to leave the abusive relationship. In these kinds of relationships, some men kill their partners and themselves. Others kill everyone in the family including children.
[20] Further, a Response to Information Request (“RIR”) in Tab 5.5 of the NDP states that “the female homicide rate in South Africa is six times higher than the global average and that approximately half of those women are killed by their partner,” that “domestic violence is often perceived as ‘normal,’ contributing to the intergenerational transmission of violence.”7
[21] Considering the principal claimant’ s testimony and the documentary evidence, the Panel finds that the claimants have established, on a balance of probabilities, that there is an objective basis for the subjective fear of persecution in South Africa.
State Protection and Internal Flight Alternative
[22] The implementation of legal instruments has not been shown to be having a positive effect on GBV against women in South Africa. According to a report found at Tab 5.3 of the NDP which assesses legislative amendments made in 1998 to better protect women:
“Legislators crafted a multi-dimensional system of accountability designed to compel both an individual and an organizational response to domestic violence in South Africa. But legislating accountability was only the minimum condition for its practice, and the mere fact of accountability mechanisms’ existence is not sufficient to ensure effectiveness. Whatever the improvements it is reported that ambivalence still marks the exercise of accountability in relation to domestic violence in South Africa.”8
[23] Tab 5.7 of the NDP further reports that police do not take GBV seriously:
“Courts or police stations are often not easily accessible to women and the lack of an effective justice system seems to be an impediment to victims of GBV seeking help, and further increases the risk of more violence and even femicide. Further studies have found that many police officers are unwilling to assist victims of GBV as they see these cases as ‘private matter between two partners.’ Police officers’ passive and negative attitudes in South Africa often result in secondary victimization and play a role in victims not reporting their cases to the police or withdrawing them after reporting. These studies conclude that legislation is good, but negative attitudes among police officers discourage victims from seeking help. A protection order should serve as a protective factor, but for some women, this actually increases their risk of further violence. Of those women who are killed by their intimate partners in South Africa some are known to have had only recently obtained protection orders.”9
[24] The police themselves are known to often exploit women and engage in the conduct that they are expected to protect women against. In the RIR found in Tab 5.5 of the NDP, according to sources:
“There have been several instances in which police themselves have deviated from protocol and responding to domestic violence cases. Several complaints against police are noted and these include delays in attending to call outs, mediating cases instead of arresting perpetrators and police not taking the experiences of victims seriously. There are even reports of police officers treating abused women poorly. In 2013 there were reports that at least halfa dozen police officers had been arrested for rape themselves including an officer accused of raping a woman who came to the police station to report domestic violence. There are also reports that two police officers were arrested for alleged rape and one of those officers were sentenced to 15 years imprisonment for shooting and killing his girlfriend. And another officer was arrested in the shooting death of another woman he was involved with.”10
[25] Based on the objective documentary evidence mentioned above, the Panel finds that state protection is not reasonably forthcoming for the principal claimant or the minor claimants m South Africa.
[26] Lastly, the Panel considered whether a viable Internal Flight Alternative exists. The principal claimant testified that she moved many times in different parts of South Africa. And everywhere she ended up settling down, the Chief had used his connections with the police and the government to locate her. The principal claimant testified that the Chief is motivated to find her because he paid a bride price for her and that he views her as his property. Despite the protection order she obtained against the Chief he continued to torment her and her children wherever they ended up. The principal claimant testified that the Chief was a prominent authority figure in his village and had five other wives prior to paying a bride price to marry the principal claimant. He has demonstrated that he has the resources to pay thugs to do his bidding of threatening and harming the claimants. The Panel, therefore, finds that the agent of persecution has the means and motivation to locate the principal claimant and her children. On the evidence before it, the Panel finds that there is a serious possibility of persecution throughout South Africa, as the objective evidence demonstrates that there is no state protection for victims of gender-based violence in South Africa. The Panel therefore concludes that an Internal Flight Alternative does not exist in the present case.
CONCLUSION
[27] Having considered all of the evidence, the Panel finds that the claimants have established that they face a serious possibility of persecution in South Africa based upon their membership in a particular social group – women fearing gender-based persecution and/or family members of women fearing gender-based persecution.
DECISION
[28] The Panel finds that the claimants XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX are “Convention refugees” and their claims are accepted.
Nalong Manivong
18 January 2021
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 96 and subsection 97(1).
2 Document 2.1 – Basis of Claim Form.
3 Document 1 – Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada;
4 Maldonado v. Canada (Minister of Employment and Immigration), (1980) 2 F.C. 302 (C.A.).
5 Document 4 – Disclosure Documents: C4 to C9; C17; C19 to C22.
6 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.
7 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.
8 Document 3 – Tab 5.3: Mapping local gender-based violence prevention and response strategies in South Africa. The Centre for the Study of Violence and Reconciliation. April 2016.
9 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.
10 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.