Citation: 2021 RLLR 101
Tribunal: Refugee Protection Division
Date of Decision: December 1, 2021
Panel: Sarah Acker
Counsel for the Claimant(s): Stéphanie Valois
Country: Sudan
RPD Number: TC1-08877
Associated RPD Number(s): N/A
ATIP Number: A-2022-01778
ATIP Pages: N/A
DECISION
[1] MEMBER: We are back on the record. The time is 11:47 a.m. This is the decision for the following claimant: XXXX XXXX XXXX XXXX, who claims to be a citizen of Sudan and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. The file number is TC1-08877.
[2] Mr. XXXX, I have considered your testimony and the other evidence in this case, and I’m ready to render my decision orally. I find that you are a Convention refugee on the grounds of your imputed anti-government political opinion pursuant to s. 96 of the IRPA.
[3] The details of your claim are set out in your Basis of Claim form and are supplemented by your testimony at today’s hearing. I should add that the details of your claim are also found in the amendments to your Basis of Claim form. In summary, you fear persecution in Sudan at the hands of the Sudanese coup d’état leaders and the Sudanese security forces due to your imputed political opinion. You also allege that there is no state protection or internal flight alternative available to you in Sudan.
[4] Your country of reference and personal identity as a citizen of Sudan has been established on a balance of probabilities by your testimony and the following supporting document filed in Exhibit 1, namely a certified true copy of your Sudanese passport that was submitted.
[5] I find there is a nexus between what you fear in Sudan and one of the five grounds enumerated in s. 96 of the IRPA. Therefore, your claim is assessed under s. 96 of the IRPA and there is no need to conduct a s. 97(1) analysis.
[6] In terms of your general credibility, I found you to be a credible witness with regard to the material issues in your claim. There were no significant inconsistencies or omissions between your Basis of Claim forms, your testimony, and the other evidence before me. You testified in a spontaneous, detailed manner. I therefore believe what you have alleged in support of your claim.
[7] You testified today from 2010 to 2019 you lived outside of Sudan: first in India to attend university on a student visa, and then in the United Arab Emirates on a work permit that ended with the termination of your employment in 2019. Your university certificate and Indian student visa can be found in Exhibit 11 at pages 6 through 8. Your UAE E visa is found at Exhibit 11 at page 9. When I asked you why you did not live in Sudan after completing your studies abroad, you explained that your mother feared for your life if you returned to Sudan because your father and brothers were both targeted by the Sudanese regime because of their political opinions. You heeded her advice and stayed out of the country. I therefore find on a balance of probabilities you lived outside of Sudan from 2009 through 2019 as a non-permanent resident in India and the United Arab Emirates because you feared being targeted by the Sudanese authorities if you returned to Sudan and lived there.
[8] You explained that while living outside of Sudan, you only returned to Sudan a handful of times, mostly to look after your mother who was suffering from cancer. This information aligns with the stamps in your passport. You explained that in XXXX of 2017 you were in Sudan to comfort your mother on her deathbed. Her dying wish was that you try to find your two brothers who had been arrested while protesting the Al-Bashir regime in 2013 and had not been seen or heard from since that time. You submitted a letter from your neighbours in Sudan with accompanying identity documents that attest to your brothers’ arrest in 2013 while protesting. This letter is found in Exhibit 11 at page 20. The details of the letter correspond to the details in your Basis of Claim form and the testimony that you provided concerning your brothers’ disappearance. I therefore find this evidence credible. After your mother’s passing on XXXX XXXX XXXX 2017 — and you provided her death certificate at Exhibit 11, pages 15 through 16 — you saw to honour your mother’s wish and you started looking for your brothers at different prisons and NISS centres in Sudan. Your testimony explained that on 26th of August 2017 you attended the NISS compound in the Shendi district in search of your brothers. When the NISS official said your brothers were not there and to stop looking for them, you accused the NISS of killing your brothers as they had killed your father who had been active in a Sudanese opposition party in the early 2000s. As a result, you were detained at the station for three days, physically assaulted, and interrogated about your alleged political activities against the Sudanese government and alleged affiliations with Darfuri movements because you are an ethnic Darfuri. Upon your release, you were made to sign empty documents. NISS officials told you to leave Sudan and that if you ever returned, they would fill in the documents with alleged offences and arrest you. You left Sudan a few days later and you never returned. This is confirmed by the stamps in your passport.
[9] Your submitted evidence from your friend, XXXX (ph), who had accompanied you on your search for your brothers after your mother passed away and who picked you up from the NISS office in Shendi upon your release from detention. You explained when and how you obtain XXXX letter of support, and its accompanied by an identity document. The letter confirms the details in your BOC narrative and your testimony. I therefore find this letter credible. It can be found at Exhibit 12. The testimony about your detention, how it occurred, when and why it occurred, and what happened during it, all aligned with the details in your BOC narrative. You testified in a spontaneous, clear, and direct manner. I therefore find on a balance of probabilities you were detained by the NISS in August of 2017 while searching for your brothers who were arrested in 2013, that you were interrogated about suspected political affiliations against the Sudanese government, that you were threatened and instructed to leave the country.
[10] You testified that you avoided involvement in politics in Sudan because you feared the regime’s brutality if you spoke out. You explained that upon arriving in Canada in XXXX of 2019, you felt safe to begin raising your voice against the atrocities committed by the current head of the Sudanese military government, General Al-Burhan and General Hemetti. You have attended rallies in Montreal and Hamilton since arriving here. You post videos on your Facebook profile about protests against the Sudanese regime, including those that took place since the coup d’état of October 25th, 2021, in Sudan. You showed me your Facebook account during the hearing and its contents confirm your testimony. You also submitted photographs of yourself attending protests against the Sudanese regime in Montreal and Hamilton in 2019 and 2021. The photos from these protests are found in Exhibit 11, pages 24 through 27. I therefore find on a balance of probabilities that since arriving in Canada, you have felt safe enough to actively voice your opposition to the Sudanese leadership and its security services as you allege.
[11] I asked you whether you would continue to speak out against the Sudanese government if you return to Sudan. You testified that you would not because you fear the consequences of voicing your political opinions, especially given the physical and psychological injuries you sustained at the hands of the Sudanese authorities during your detention in August of 2017. I therefore find on a balance of probabilities that in addition to the Sudanese regime perceiving you to be a political opponent, you hold actual political opinions that opposed the current Sudanese regime.
[12] I noticed that at the time you left the UAE you had a valid United States visitors visa. I asked you why you did not choose to make it an asylum claim in the United States and instead use that US visa in order to travel from the United States immediately to Canada. You explained that you were aware of the former Trump administration’s attitude towards Sudanese asylum seekers at the time and you were worried you would not have a fair asylum hearing. I find this explanation reasonable. I also asked you why you did not seek asylum in Ireland or other parts of Europe, as your passport shows you had valid visas for those locations at the time that you left the United Arab Emirates for Canada. You explained that having done research online, you felt Canada would be the safest option for you, specifically given your profile as a person of colour. I accept that this is your genuine belief and the reason why you came to Canada instead of seeking refuge elsewhere.
[13] I therefore find on a balance of probabilities that you have a subjective fear of persecution in Sudan because of your real and perceived political opinions. As a result, and as mentioned previously, this claim is being assessed under s. 96 of the IRPA, and I find that you have established a nexus to a Convention ground.
[14] In addition to your credible testimony and the other evidence before me today, the objective evidence in this case supports your claim. With respect to your detention by the Sudanese security forces in August of 2017, the documentary evidence in the National Documentation Package, the NDP, is quite clear that the Sudanese authorities under the previous Al-Bashir government targeted real and perceived critics of the regime. Security forces detained such critics, often keeping them for days before releasing them without charge. Many were held even longer, facing maltreatment and torture during their detention. This is mentioned in NDP item 1.4 among other items in the NDP. NDP 1.11 also notes the risk you faced as a perceived political critic under the Al-Bashir regime given your identity as a Darfuri. In December of 2018 the regime still described the protests in Sudan as a plot engineered by Darfur rebels backed by the West. In a January 2019 report on “The Risk on Return for Darfuris in Sudan,” the source states that Darfuris were being used as scapegoats and accused of instigating the uprising on instructions from foreign agents. I therefore find on a balance of probabilities that your subjective fear or persecution in Sudan at the time you left the country had an objective basis and was well-founded.
[15] However, my risk assessment must be a forward-looking one, so I now turn to the evidence of whether the risk you faced in August 2017 in Sudan is indeed ongoing and forward-looking. In April of 2019 President Omar Al-Bashir was removed from office after decades of authoritarian rule in Sudan and replaced by a military council. Shortly after that, following negotiations between military leaders like Generals Al-Burhan and Hemetti and opposition groups, a transitional government led by a sovereign council of military and civilian members replaced the military council in August 2019. From that time until October of this year, 2021, positive changes were made with respect to human rights in Sudan, including opening space for political opposition and voices critical of the Al-Bashir regime and the improvement of other rights like women’s rights. However, on October 25th, 2021, the military wing of the civilian-led transitional government commandeered by General Al-Burhan staged a coup d’état in Sudan. The Sudanese army arrested key government officials, including President Minister Hamdok. When Sudanese civilians protested the coup, Sudanese military forces, including General Hemetti’s Rapid Security Forces, used excessive and lethal force against peaceful protesters. The individuals who held leadership roles in Sudan state security forces under Al-Bashir, including those who controlled state security forces at the time of your arrest and detention in August 2017, now once again hold power in Sudan. This leads me to find on a balance of probabilities that the positive steps taken by the Sudanese civilian-led transitional government regarding, among other issues, treatment of real or perceived regime critics are not durable. I therefore find on a balance of probabilities that your subjective fear of persecution in Sudan has an objective basis, is well-founded, and is forward-looking.
[16] While states are presumed to be capable of protecting their nationals, it’s open to a claimant to rebut the presumption of protection with clear and convincing evidence. In this case, the agent of persecution is the state because the forward-facing persecution you would face in Sudan is at the hands of state authorities. Based on your personal circumstances as well as the objective country documentation, I find on a balance of probabilities that you have rebutted the presumption of state protection with clear and convincing evidence. Given that the state is the agent of persecution and there was no objective evidence that shows the state does not have control over the entire country of Sudan, I find on a balance of probabilities that you would face a serious possibility of persecution throughout Sudan, and therefore a viable internal flight alternative does not exist for you.
[17] Having considered your testimony, the documentary evidence presented, and the objective evidence before me, I find there is a serious possibility that you would face persecution in Sudan at hands of the Sudanese security forces if you return there. For the aforementioned reasons, I conclude that you are a Convention refugee for pursuant to s. 96 of the IRPA, and I accept your claim. This concludes my reasons for decision.
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