2022 RLLR 95

Citation: 2022 RLLR 95 
Tribunal: Refugee Protection Division 
Date of Decision: February 28, 2022 
Panel: Dawn Kershaw 
Counsel for the Claimant(s): Jessica Chandrashekar 
Country: Sudan 
RPD Number: TC0-08019 
Associated RPD Number(s): TC0-08029 
ATIP Number: A-2023-01023 
ATIP Pages: N/A 

 

DECISION 
 
[1]        MEMBER: This is the decision in TC0-08019 and TC0-08029.  I am reading the decisions into the record on February 28, 2022, after a hearing held on February 22, 2022.  Following are the reasons.  I heard the testimony in this claim and I’m reading my decision into Teams without the parties present.  The transcript may be edited before being sent out.  The principal claimant, XXXX XXXX XXXX XXXX XXXX XXXX claims to be a citizen of Sudan and claims refugee protection pursuant to Sections 96 and 97.1 of the Immigration and Refugee Protection Act, in short, the IRPA.  The minor claimant, who is the principal claimant’s daughter, namely XXXX XXXX XXXX, claims to be a citizen of the United States and claims refugee protection pursuant to Sections 96 and 97.1 of the IRPA.   

 
[2]        The principal claimant was the designated representative for the minor claimant and because the minor claimant was only two years old at the time of the hearing, no testimony was taken from her.  In hearing and deciding these claims, I took into account the Chairperson’s Guidelines on gender related persecution, as well as the Guidelines on child refugee claimants.   
 
[3]        I find that the principal claimant is a Convention refugee because she established that she faces a serious possibility of persecution in Sudan on a Convention ground. I find that the minor claimant has not established that she would face a serious possibility of persecution, or a risk to life, cruel and unusual treatment or punishment, or torture should she return to the USA.   
 
[4]        With respect to both claimants, I find that the national and personal identities of them both were established through testimony and the certified true copies of the principal claimant’s Sudanese passport, and the minor claimant’s US passport as well as the birth registration for the principal claimant and a birth certificate for the minor claimant in Exhibit 5.  I will address the principal claimant’s claim first.   
 
[5]        After hearing the principal claimant’s testimony, I find she faces a serious possibility of persecution in Sudan because of her anti-governmental political opinion and as a woman, and I make my decision based on Section 96 of the IRPA as there is a nexus to Convention grounds, namely political opinion, and gender.  In her Basis of Claim form signed July 10, 2020, the principal claimant alleges fearing persecution in Sudan because of her involvement since 2018 and anti-governmental political activities in person both in Sudan and then more recently since she has been in Canada.   
 
[6]        She expressed her opposition to Sudanese authorities and members of the security apparatus, many of whom remain in power.  She protested beside and among friends and family at public demonstrations.  In addition, she and a friend volunteered to assist doctors at a health clinic at the protest site, which was confirmed by a support letter from her friend in Exhibit 5.  I accept the testimony of the principal claimant as well as the letter from the principal claimant’s friend for two reasons.   
 
[7]        First, the principal claimant was able to tell me about her volunteer work at the clinic with sufficient detail that I find her testimony credible, and two, the principal claimant’s friend’s letter was consistent with the principal claimant’s credible testimony.  The principal claimant told me about being on site when security forces responded with force and she testified without hesitation and in detail about what happened that day including her detention.  She also testified with respect to why it was important to her to be involved in and at the protest and she spoke with conviction about her wish for a better future for her country.   
 
[8]        In addition to being detained in XXXX 2019, the principal claimant further testified with respect to the fact that when she returned from the UAE where she got a US visa to attend her cousin’s wedding, she was taken aside by security and asked questions about her US visa and why she had it.  In addition she was told by the security that they knew she was at the protest and they warned her not to testify against them and told her she would be monitored, which was clear terrified her.   
 
[9]        She told me in detail how she left Sudan within a couple of days of that event, as well as how she got through airport security without question by a friend of her husband’s who worked at the airport bribing someone to assist her.  Despite the difficult events she experienced in Sudan, I further find that the principal claimant continued her political involvement in Canada by participating in demonstrations in Canada, photos of which she showed me on her phone at the hearing and which were subsequently made Exhibit 11.   
 
[10]       I found her testimony about her involvement in political activity convincing when she told me that her family was not at all political, though they objected to the Sudanese government and they had told her not to become involved because it  would get her into trouble.  I asked her why she protested despite that advice and she convincingly testified that the government went to far and her country deserved better.  I also asked the principal claimant about the fact that she left Sudan in XXXX 2019 but did not come to Canada and make a claim until March 2020.   
 
[11]       She explained she initially arrived in the United States with no intention of staying as she testified that even though she was terrified in Sudan, the political situation changes frequently and she hoped things might improve.  She also testified that another reason she did not intend to stay in the US was that she is separated from her husband who remains there however, she testified that when she was in the US in XXXX 2019, her husband called to tell her that things were worse and that the rapid security forces came to look for you, which was when she realized she had to stay.   
 
[12]       The principal claimant also explained why she did not make a claim in the US but instead came to Canada citing the Trump anti-Muslim policies as well as a ban on Sudanese immigration in the US at the time.  She further explained that she was delayed in coming to Canada by the birth of the minor claimant in XXXX 2019.  She provided in Exhibit 5 medical documentation to support that, as well as that she had asked the doctor if she could travel during her third trimester so she could be in Canada when her daughter was born, and her doctor advised against this.  I draw no negative credibility inference from the failure to claim in the United States.   
 
[13]       I find that the principal claimant was a very credible witness and I believe what she alleged in support of her claim.  She testified openly and without hesitation.  There were no material inconsistencies in her testimony or contradictions between it and the other evidence before me.  Overall her testimony and the personal documentary evidence before me are consistent in content and chronology.   
 
[14]       The principal claimant also disclosed many documents to support her claim in Exhibit 5, including support letters to corroborate the events about which she testified.  I find that she has established her subjective fear.  In making this finding I have considered the fact that her husband remains in Sudan and has never met his daughter.  The fact that the principal claimant left when pregnant and then stayed away from her husband is consistent with the actions of a person who fears persecution if she returns.  It was clear from her testimony that it has not been easy for her to be separated from her husband.   
 
[15]       People who seek refugee protection also have to establish that they have a well-founded fear of persecution on a Convention ground, which means not only does a person have to establish their subjective fear, but there also has to be an objective reason for their fear.  According to the information we have about the country, which in this case also includes additional country documentation disclosed by the principal claimant’s lawyer in Exhibits 4, 6, and 10.   
 
[16]       There is substantial objective country documentation to support the principal claimant’s subjective fear, including in Exhibit 3, namely the National Documentation Package for Sudan, July 30, 2021 version, as well as the additional documentation I just referred to in Exhibits 4, 6, and 10.   
 
[17]       I find that the principal claimant has established a nexus to the Convention ground of political opinion because the persecution she fears is in part based on her active involvement in opposing the government, militia, and security apparatus of Sudan that remains despite the change or transition in 2019.  Second, I find that she has established a nexus to a Convention ground because the persecution she fears is also in part a reflection of her membership in a particular social group of women and girls facing violence in Sudan.  The persecution she faces includes being threatened with sexual assault, which is a threat not faced by men who voice their political opinion.   
 
[18]       While the political situation and the use of lethal force against civilians improved in 2019 with the transitional government installed in that year, there were still significant human rights abuses, particularly a lack of investigation of, and accountability for violence against women as set out in item 2.1 of Exhibit 3.   
 
[19]       Of particular note is the objective documentation in Exhibit 10 that includes reports that despite the improvements that marked President Bashir’s overthrow in 2019, it is reported that protests on the third anniversary of that were marked by gender-based violence including rape and gang rape.  This was also preceded by killings of protestors and also sexual violence against women protestors perpetrated by the country’s security forces and other armed groups in the wake of a military coup in October 2021, also as reported in Exhibit 10.  I therefore find there is an objective basis for the principal claimant’s subjective fear and that her fear of persecution is well-founded.   
 
[20]       Because the forces are involved in the persecution, I find that they are unwilling or unable to protect the principal claimant from the risks she faces if she returns to Sudan.  As above, I note the reports of ongoing sexual violence that women in Sudan continue to face after the transition and then the military coup.  I find the principal claimant has presented sufficient, clear, and convincing evidence that rebuts the presumption that state authorities in Sudan can or will protect her if she returns.   
 
[21]       I have also considered whether a viable Internal Flight Alternative exists for the principal claimant.  On the evidence before me having taken into account he situation in Sudan and the fact that the authorities have looked for the principal claimant, I find that she has established that she faces a serious possibility of persecution throughout the territory, and therefore no viable Internal Flight Alternative exists for her.   
 
[22]       For all these reasons I find the principal claimant faces a serious possibility of persecution in Sudan on a Convention ground.  I therefore find her to be a Convention refugee and I accept her claim.   
 
[23]       With respect to the minor claimant, I have considered whether she would face a serious possibility of persecution or risk to life, cruel and unusual treatment or punishment, or torture should she return to the USA.   
 
[24]       When the principal claimant was asked what she feared for the minor claimant, she testified that if the minor claimant was sent back to the United States the principal claimant would not be able to be with her and she could not grow up without parents.  She testified that she thought it would be very traumatic for the minor claimant to be sent to the US without the principal claimant as they had never been separated for a day.   
 
[25]       She testified she wants the minor claimant to be raised with loving parents and in her own religion.  Information contained in the minor claimant’s Basis of Claim form and narrative of the principal claimant completed by the principal claimant and designated representative of the minor claimant does not include allegations about any risk of persecution or risk to life, cruel and unusual treatment or punishment, or torture should the minor claimant return to the USA.   
 
[26]       Counsel for the claimant submitted that the minor claimant faces a risk of being detained while being processed in the child welfare system in the USA and could disappear in the system.  She further submits that given the minor claimant’s age, she would not be able to stay in touch with her parents and would not be able to locate them when she is older.  Finally, she submits that I must consider the fact that she is black.   
 
[27]       The National Documentation Package for the United States provides information regarding the country conditions in the US.  Amnesty International published a report focusing on unaccompanied children seeking asylum in the US and includes the fact that there has been forcible separation of children from family members, which in some cases amounted to ill treatment and torture to the use of tent cities to detain children for seeking asylum in the US.  The report addresses the thousands of children who travel alone to the United States to flee violence and persecution in their home countries.  However, I do not give this document full weight because it refers to children entering the US to seek asylum and those who are awaiting for determination of their immigration status whereas the minor claimant is a citizen of the US and therefore has access to rights, liberties, and protection which may not be available to children entering the US as asylum seekers.   
 
[28]       In addition, this report focuses on one particular emergency care shelter in Homestead, Florida which was operated by the United States Department of Health and Human Services, HHS, and does not provide substantial information about the treatment of children who are USA citizens entering the US in general.  In addition, a response to this Amnesty International report from Caliburn International Corporation describes Homestead as a temporary facility that was reopened by HHS in response to the arrival of thousands of unaccompanied children on the southern border of the US.  The response states that unaccompanied children receive excellent care at the Homestead emergency shelter which includes educational services, healthcare, emotional, and mental health supports and more.   
 
[29]       There is also a 2019 report published by the United States Congressional Research Service including information about unaccompanied alien children in the United States NDP but it is centered on unaccompanied alien children apprehended at the southwest border between US ports of entry while attempting to enter the US without authorization and who among other things lack lawful immigration status.  The minor claimant on the other hand has lawful status in the US and I therefore put little weight on this document in terms of its’ value in establishing a serious possibility that the minor claimant faces a risk of persecution, harm, or torture in the US.   
 
[30]       I reviewed the information found in the United States NDP related to the risk of persecution that may effect an unaccompanied child who is entering the US, but there is insufficient evidence before me to support a finding that a child who is a US citizen faces a risk of persecution upon entry to the US.  The minor claimant did not provide any additional evidence regarding any risk of persecution or harm that the minor claimant faces in the US.   
 
[31]       I have also taken guidance from the UNHCR Handbook on determining refugee status and Canadian jurisprudence, which indicates that discrimination can amount to persecution cumulatively when the following conditions are met.   
 
[32]       First, there must be a number of discriminatory acts which take place in a general atmosphere of insecurity in the country of origin.  The discriminatory acts must be of such a nature that they are substantially prejudicial to the person concerned including serious restrictions on the right to earn a livelihood or to access normally available educational facilities.  Where the cumulative nature of discrimination results in an insecure future for the person concerned, this constitutes persecution.   
 
[33]       In making the assessment, I must also consider the claimant’s personal circumstances and vulnerabilities and in this regard I refer to the case of Liang versus Canada, as well as to the UNHCR Handbook. In this case, the claimants have not established that the minor claimant will be placed in a child welfare system should she return to the USA, nor establish that any services provided to the minor claimant by a child welfare organization in the US would result in a serious possibility of persecution.   
 
[34]       I find that the minor claimant has not demonstrated that she faces persecution or would be personally subjected to a risk to life or a risk of cruel and unusual treatment or punishment, or a danger of torture upon return to the US.  I find that the minor claimant has not established a well-founded fear of persecution and there is insufficient evidence before me including objective country condition documents which could link this claim to a forward-facing risk of persecution under Section 96 of the IRPA or to a risk of harm under the IRPA Section 97 in the US.  Therefore, the minor claimant’s claim is rejected under Sections 96 and 97 of the Act.   
 
 
——— REASONS CONCLUDED ———