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