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Categories
All Countries El Salvador

2019 RLLR 74

Citation: 2019 RLLR 74
Tribunal: Refugee Protection Division
Date of Decision: January 8, 2019
Panel: S. Shaw
Counsel for the claimant(s): Kieran Verboven
Country: El Salvador
RPD Number: VB7-06918
ATIP Number: A-2020-01274
ATIP Pages: 000221-000226

[1]       PRESIDING MEMBER: So [XXX], [XXX] and [XXX] you claim to be citizens of El Salvador.

[2]       You claim refugee protection pursuant to Sections 96 and 97 [1] of   Immigration and Refugee Protection Act.

[3]       The Claimants’ Basis of Claim form allegations found in Exhibit 2. The Principal Claimant, [XXX] is a citizen of El Salvador. Born on [XXX], 1981. The Principal Claimant’s wife, the Associate Claimant, [XXX] is a citizen of El Salvador. Born on [XXX], 1984. The Principal Claimant and the Associate Claimant’s daughter is the minor Claimant. [XXX]. She’s born on [XXX], 2016.

[4]       The Claimants face a risk to their lives from MS13 because originally the Principal Claimant sent them to jail and then confronted them later. It began on [XXX], 2017 when the Principal Claimant was attacked by three gang members for no reason. In the city [XXX] in Antigua Cuscatlan C-U-S-C-A-T-L-A-N. The gang members had asked for money and then they said they were going to harm the Associate Claimant. And three of them began to attack the Principal Claimant.  He was lynched and thrown into the street and run over by— twice by a car, which fractured his [XXX] and his right [XXX]. He would have died but he was assisted by security employees who helped him before the police arrived. The gang members — two of the gang members were captured of the three. Due to the attack the Principal Claimant spent more than [XXX] months in hospital recuperating. The legal matter against the gang members was botched by the general prosecutor of the Republic and also by the judge. The judge admitted evidence that wasn’t valid. The criminal offences kept changing which would benefit the gang members. The judge granted them alternative measures to provision of detention, and so forth.

[5]       All this led to the gang members learning that where the Claimant’s family lived. They kept searching for the Claimant— for the Principal Claimant trying to intimidate him and trying to force him to withdraw his lawsuit and trying to locate him even while he was hospitalized. After he left the hospital, [XXX] 2007, relatives of the gang members came to the Principal Claimant’s home to tell him that if he didn’t drop the charges they would kill the Principal Claimant. Ultimately he had to reconcile with the gang members and they reached an agreement so that they would not kill him. The gang members also told him that he would need to leave the zone or else they would kill him.

[6]       The Claimant— Principal Claimant went to the general prosecutor to get protection measures but all he negotiated with the gang was to get them to give him $1500 each from each of them to facilitate his departure from the area and to prevent the killing of the Principal Claimant. The Associate Claimant was also at risk because she was a witness to the events.

[7]       The Claimants started moving and went back to their studies. Each of them studied [XXX]. The Principal Claimant became a [XXX] to the [XXX]’s office in San Salvador since mid 2012. The Principal Claimant would observe the gang members would come to [XXX]’ s office asking for him. This made him afraid to show the problems he had with the gang. The Principal Claimant decided to transfer to another department to avoid the risk. The Principal

[8]       Claimant was then appointed by the [XXX] to [XXX]. He had to negotiate with companies that are under the control of the gangs. The Principal Claimant gave up that work in XXXX 2015 for his safety. He there after decided to open his [XXX]— his own [XXX]. He was asked by a particular bank to carry out a [XXX] of five cases which had been stagnate for years and they haven’t been able to recover properties. The Principal Claimant was able to find owners of one property in the United States. He learned that the house that he was getting information about was filled with gang members and that’s why the MS had decided to keep that house. The family had fled El Salvador for the United States to avoid being killed.  The Principal Claimant was able to negotiate the return of the house to the bank. Where the Principal Claimant would be the [XXX] and be able to authorize this transaction.

[9]       The Principal Claimant learned in [XXX] 2016 that the men who were living inside the house were the men who had attacked him in 2007 in the initial transaction he had with the gang. This was in [XXX] 2017.  The gang insisted that the Principal Claimant negotiate this transaction. In [XXX] 2017, gang members approached the Principal Claimant and told him that his luck would be over unless he returned that house to the Maras (ph.), to the MS. They knew all the details about his parents and they threatened his life.

[10]     On [XXX] while the Principal Claimant was in a car with his wife and daughter, two persons followed them on a motorcycle. They intercepted the car and they took out a 9mm black weapon out of a bag. The Claimant hid in different hotels and left the country eventually getting to Canada to claim for refugee protection.

DETERMINATION

[11]     I find that the Claimants are persons in need of protection. In that the removal to El Salvador will subject them personally to a risk to their lives for the following reasons.

ANALYSIS

[12]     The Claimants’ identities as nationals of El Salvador are established by their testimony and the supporting documentation filed, namely their passports found in Exhibit 1. I have found the Claimants to be credible witnesses. They did not exaggerate about the amount of information they are aware of, about their situation since they came to Canada. Moreover the Claimants corroborated every allegation contained in their Basis of Claim forms with the 257 pages of supporting documentation found in Exhibit 4. These include their [XXX], the legal documents about the initial incident where in the Principal Claimant was run over by cars, they arrested the men and evidence that the Claimant was in the hospital, the detentions of the gang members  for five months, the conditional suspension procedure, the judicial errors in this case, evidence that the Claimant fled and was hiding in different houses and suffering from [XXX] and [XXX], witness to the events of 2007, evidence about the motorcycle  incident, that the Claimants  were constantly fleeing and  hiding  in  houses, medical evidence from the hospital, confirmation the Principal Claimant worked at the various locations and doing the work that he said he was doing, including that he recovered debts and so forth.

[13]     The Claimants’ testified today that the parents of the Principal Claimant are still in hiding and never go outside.  They are currently living in Santa Ana.  And even here in last May 2018 gang members were asking neighbours of the Claimant’s parents where the Claimants were. There’s evidence that the gangs are still searching for the Claimants to this day.

[14]     I have considered— and so I thus find that— I have considered whether the Claimants’ are Convention refugees. For the Claimants to be Convention refuges their fear of persecution must be by reason of one five grounds enumerated in the Convention refugee definition. I find that the Claimants’ fear of persecution is criminality and criminality is not a Convention ground. I therefore find that the Claimants’ are not Convention refugees.

[15]     The Claimants alleged that if they return to El Salvador they will be subjected to a risk to their lives by the MS13. I find that on a Balance of Probabilities that they have established this. The gang has been after the Claimant since 2007. First in connection to    the Claimant’s having the gang members incarcerated and for not dropping charges against them with regard to the aggravated assaulted perpetrated against the Principal Claimant. The gang members have been asking for the Claimant since mid-2012 again when he was working for [XXX]’s office.  In this job he made more enemies with the MS by evicting them from the market which had been a stronghold of the MS gang. So the MS gang only, by this point in 2012, had increased interest in the Claimant than in the originally in 2017. And after the Principal Claimant decided to leave this job out of fear of the gangs, his next position put him back in front of the gang again for trying to evict them from their headquarters, the house that got re-deeded back to the bank. The Principal Claimant was told in [XXX] 2017 that he was a dead man. They threatened the Claimants on [XXX] and took out a gun on their car which had all of the Claimants in it. Even when the Claimants were hiding they were found over and over again. I thus find that on a Balance of Probabilities all of the Claimants are at risk of harm pursuant to Section 97.

[16]     National Documentation Package item 7.2 and 7.3 of the National Documentation Package dated September 28— September 28, 2018 indicates that El Salvador has become the most violent in the world that is not in active warfare. There are approximately 18 murders a day. A 70 per cent increase compared to the previous year. Making El Salvador the highest murder rate for any country in the world in almost 20 years.

[17]     Item 7.2 of the National Documentation Package indicates that these numbers do not include the unreported murders or the hundreds or more disappearance cases. Gang related violence is the proximate and cause for many individuals and families fleeing El Salvador and becoming internally displaced as the Claimants had been. At present there are approximately 300,000 El Salvadorians who are internally displaced.  Gang violence in El Salvador is an immediate pre cursor to displacement. Entire families, like your own, are caught up in this violence without end. That’s Exhibit 3, National Documentation Package Item 7.2.

[18]     I find that the authorities in El Salvador have consistently failed to assist individuals and prevent displacement. In your case they assisted the displacement and made a deal to get you out of town. To create your own displacement instead of protecting you.  And the authorities have, moreover, have shown a difference to the plighted victims of violence and have thrown their back on their own citizens. The government officials botched the entire 2007 case against the gangs. And instead of following through on the manner, the Claimants were forced, again as I said, to leave town to protect their own lives.

[19]     The article Gang Based Violence and Internal Displacement indicates that the police, attorney general and prosecutors office discourage citizens from reporting crimes. They refuse to take denouncements or refuse to take responsibility for accepting reports of crime. Referring victims, witnesses and family members to other offices or agencies. The El Salvadorian state is unable to protect victims of crime, witnesses of crime or people who have participated in investigations or reported crime.

[20]     In many cases after having sought out the police or other government agencies, like yourselves, victims continue to suffer threats, attacks, violence and attempts on their lives. When the government representatives fail to response victims and survivors in these cases are forced to go hungry even sleep on the street, stay in deplorable conditions. In some cases, victims or family members are killed after seeking state protection. And media reports of the murder of the eye witnesses and those who testify at trial abound.

[21]     Item 7.13 and Item 2.3 Freedom of the World. There is a slowness in the state’s response to the seriousness case of harassment, abuse or violence that leaves victims in danger. Including cases involving persons like yourselves. There appears as well to be a failure on behalf of the judicial branch. The judicial system in El Salvador is weak and plagued with corruption. This is what the Claimants have alleged as well. With all of this there has been a creation of impunity from criminal prosecution as you experienced. Moreover there are frequent cases in the national news of violent deaths of those who report or witness crimes. These documents indicate that there are close ties between some government representatives and organized criminal structures. In a number of cases, links between local government and the police force and the gangs operating in communities are evident. This contributes to increased threats as stated and prevents the pursuit of justice and results in further victimization of citizens and victims. See Item 7.2, 7.13, 2.3, 2.1 of the National Documentation Package.

[22]     The United States Department of State report at Item 2.1 of the National Documentation Package indicates that corruption is widespread,  highlighting the weaknesses in the judiciary and security forces have contributed to a high level of impunity. According to Freedom House, Item 2.3 corruption continues to be a serious problem with few officials facing charges.

[23]     For all these reasons I find that the presumption of state protection has been rebutted. I have considered whether you face a risk throughout the country. I find that you would face— each of you face a risk to your lives on a Balance of Probabilities throughout El Salvador.

[24]     As noted in the National Documentation Package gang based violence article at Item 7.13 the MS reach extends across Central and North America. Estimates of active gang membership rang from 54,000 to 80,000 persons in El Salvador, Guatemala and Honduras. The gangs are now present in each of El Salvador’s 14 regional departments controlling entire neighbourhoods and imposing violence and fear on the population. Item 7.2 of the National Documentation Package.

[25]     The gangs are everywhere. If the Claimants were to move anywhere in El Salvador there is gang presence and their numbers are very high and they are always looking around for who is entering a neighbourhood. The Claimants cannot move anywhere in the country without their presence being learned by the gang. And for this information to be gather by the gangs. The gang presence is so large in El Salvador I find that the Claimants face a risk to their lives throughout El Salvador. There is no Internal Flight Alternative.

CONCLUSION

[26]     For the foregoing reasons I conclude that the Claimants are persons in need of protection and I therefore accept their claims.

[27]     And that’s the end of my decision and I will go off the record at this time.

—PROCEEDINGS CONCLUDED

Categories
All Countries Syria

2019 RLLR 86

Citation: 2019 RLLR 86
Tribunal: Refugee Protection Division
Date of Decision: March 5, 2019
Panel: D. Young
Counsel for the Claimant(s): Ali Dakakni
Country: Syria
RPD Number: TB7-16920
ATIP Number: A-2020-01459
ATIP Pages: 000032-000036

REASONS FOR DECISION

[1]       This is the decision in the claims of [XXX] (the principal claimant), [XXX] (the principal claimant’s spouse), [XXX] and [XXX], (the minor claimants). The claimants are making claims against Syria, seeking Canada’s protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1 The principal claimant was appointed Designated Representative for the minor claimants. A third minor claimant, citizen of the United States, (U.S.), had initially made a claim with the rest of the family but that claim was withdrawn before the hearing.

[2]       The claimants have lived in the United Arab Emirates (UAE) since 2016. They had residence permits based on the principal claimant’s employment. The principal claimant was, according to documents filed, a valued employee of [XXX] in Dubai.2 Prior to that, he had worked for the same company in the Kingdom of Saudi Arabia. The family was planning to re-locate to Canada for the principal claimant to take a job with [XXX] in Toronto. The family’s application to the Canadian government for a visa was refused because “the LMIA/Job Offer which you have provided in support of the application is fraudulent”.3 A subsequent application for a visa was also refused. The principal claimant alleges that because he was leaving his job in UAE, his employer had replaced him and refused to extend his employment. As a result, the claimants would be required to leave UAE. The only country they had a right to live in was their country of nationality, Syria. The family fears targeting due to their perceived opposition to the Assad regime and that the principal claimant would be forced to serve in the Syrian army. They had been issued Non-immigrant visas to the U.S. in 2015 valid until 2017. They travelled to the U.S. on [XXX] 2017. They crossed the Canada­U.S. border ten days later, outside of an authorized port of entry and made refugee claims.

[3]       The panel had concerns about the evidence regarding the claimants’ decision to leave the UAE. At the end of the hearing, counsel was given the opportunity to submit representations in writing. Along with his representations, counsel submitted documents regarding this issue along with documents about the U.S. administration’s statements regarding refugees from Syria and the text of a tweet from the Canadian Prime Minister. As these were relevant to issues raised by the panel in the hearing, the documents were entered into evidence.4

Identity

[4]       Certified copies of the claimants’ current Syrian passports were included with the referral.5 These are sufficient to establish the claimants’ identity and nationality.

Credibility and Subjective Fear

[5]       The panel stated in the hearing that credibility and subjective fear were issues in this claim. Specifically, on credibility, the truthfulness of the claimants’ evidence regarding why they had left the country they were living in, where they had ongoing resident status, even though that status was not permanent. Had the status been permanent, the claims would likely have been excluded from consideration in accordance with Article 1E. As it stands, the claimant’s decision to leave a country where they had status becomes a consideration in assessing their subjective fear. Further, the claimants’ decision not to make an asylum claims in the U.S. also gives rise to an issue of whether the claimants lack subjective fear and also affects the assessment of the credibility of their allegations of fear of return to Syria.

[6]       The documents submitted by counsel post-hearing give a detailed explanation of the claimant’s efforts to re-locate to Canada and set out more clearly the sequence of events. The panel finds, on a balance of probabilities, that when the claimants left the UAE, they were likely facing removal from that country.

[7]       Regarding the decision to pass through the U.S. and make a claim in Canada, the evidence is not as convincing. The claimants allege that the current president’s statements regarding a Muslim ban was the reason and that therefore they had no choice but cross over to Canada. The panel notes that the claimants had visas permitting them to enter the U.S. and had been allowed entry to the U.S. during the time of the president’s statements regarding banning Muslims but had been refused visas to travel to Canada. This undermines the claimants’ assertion that they would be more welcome in Canada than the U.S. Counsel in his submissions referred to the Canadian Prime Minister’s tweet.  The statements does re-affirm that Canada accepts refugees fleeing risk of persecution. The statement does not say that persons who are already in safe countries should leave those countries and instead come to Canada. That said, even though the panel does not find that the claimants would be unsafe in the U.S., their belief is not so completely unreasonable that the panel can find that it indicates a lack of subject fear sufficient to undermine their claim.

Objective Basis

[8]       With regard to the objective support for the claimants’ allegations of the risk they face in Syria, this is found in the documentary evidence. Political opinion in Syria is imputed to citizens based on their locality or family connections. The International Protection Considerations with Regard to People Fleeing the Syrian Arab Republic, Update IV prepared by the United Nations High Commissioner for Refugees (UNHCR) states:

A particular and deepening feature of the conflict is that different parties to the conflict frequently impute a political opinion to larger groups of people, including families, tribes, religious or ethnic groups or whole towns, villages or neighbourhoods, by association. As such, members of a larger entity, without individually being singled out, become the targets for repercussions by different actors, including government forces, ISIS, and anti­government armed groups, for reason of real or perceived support to another party to the conflict.6

[9]       Refusal to take part in the actions of the Syrian army, in the current circumstances, is an expression of political opinion under the Convention definition and the actions which likely would be taken against the claimants would come within the definition of persecution.

Internal Flight Alternative and State Protection

[10]     Syria is embroiled in a multi-dimensional, multi-national war which affects the entire country and has led to extreme sectarian violence. I find that the current security situation in the country is such that there is no access to state protection or a viable internal flight alternative for this claimants at the current time.

CONCLUSION

[11]     Having considered all of the evidence before me, I find the claimants to be Convention refugees and I accept the claims.

(signed)           D. Young

March 5, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended.
2 Exhibit 10.
3 Emphasis added.
4 Exhibit 11.
5 Exhibit 1.
6 Exhibit 6, NDP for Syria (28 September 2018), item 1.12.

Categories
All Countries Egypt

2019 RLLR 85

Citation: 2019 RLLR 85
Tribunal: Refugee Protection Division
Date of Decision: March 1, 2019
Panel: Maria Vega
Counsel for the Claimant(s): John P. Howorun
Country: Egypt
RPD Number: TB7-16817
ATIP Number: A-2020-01459
ATIP Pages: 000027-000031

[1]       PRESIDING MEMBER: This is the decision in the case of file number TB7-16817. This decision is with respect to the claim of Mr. [XXX]. He claims to be a citizen of Egypt and is claiming refugee protection pursuant to Sections 96 and Section 97.(1) of the Immigration and Refugee Protection Act.

[2]       This decision is being rendered orally today and a written form of these reasons will be sent to your home at your address, sir, and they may also be edited for spelling, syntax, grammar as well as references to the applicable case law and legislation as well as exhibits.

[3]       I find that the claimant is a national of Egypt as is established by his testimony and by the supporting documentation filed; namely, his passport, a certified true copy of which is found in Exhibit 1, as well as his Egyptian identity card which was found in Exhibit 9.

[4]       From this evidence I conclude on a balance of probabilities that the claimant has Egyptian citizenship and that he is who he claims to be.

[5]       Mr. [XXX], I find that you are a Convention refugee for the following reasons.

[6]       In this case the nexus to the Convention definition is your imputed political opinion. You have come to the attention of the security authorities in Egypt, at first through your attaining what you believe to be an authentic building permit to build a barn on your property. Then you proceeded to build this and then when it was demolished and you complained about that you came facing the police and then were taken to the police station.

[7]       You also appear from your evidence to have come to the attention of the police authorities through your involvement in attending anti-government, political demonstrations in November 2016, as well as by posting on your Facebook page what were anti-government opinions as well as the fact that you had attended those demonstrations.

[8]       The allegations are found in your Basis of Claim Form and I will just summarize them, but I won’t provide every detail.

[9]       These demonstrations which you attended in November 2016 were against the government of Mr. El-Sisi giving two Egyptian islands to the Kingdom of Saudi Arabia and also they were against the rising inflation that was taking place in Egypt.

[10]     With respect to the building permit which you had obtained from what you believe to be a legitimate source, the office that issued the permits, you had paid your 4,000 Egyptian pounds and then you proceeded to build the barn in December of 2016.

[11]     Then shortly afterwards on the 7th of January 2017 the police went to your home with the equipment and commenced demolishing the barn.

[12]     Then when you protested you were subsequently taken the police station. You were there accused of assaulting police officers with weapons which you then denied, and then you were kept in solitary confinement for two months and warned to not speak out against the government again or you would be killed.

[13]     Your family who had gone looking for you at the police station where you were taken had been told by the authorities at that time that you were released the very first day, thus causing them to extreme fear thinking that you had disappeared as others had – as it had happened to others.

[14]     You also understood by the warning that you were given by the police that they were aware of your anti-government opinions and the posts that you had published on Facebook as you had not spoken out against the government in any way until that point except by writing on your Facebook page which was in your account, and by attending the two protests in November of 2016.

[15]     You were released from detention on the [XXX] 2017. Customers who had come to you in the past for painting jobs had ostracized you as did your friends who stopped contacting you.

[16]     And there was the belief that your detention by the police was for the illegal building of the barn, but you told people at your brother’s barbershop that it was not for that, but because you had spoken out against them for what they were doing to you.

[17]     Also upon learning from your cousin whose friend while working at the national security office in Garbaya (ph) you learned that there was a warrant for your arrest.

[18]     You immediately commenced making arrangements to leave the country and to obtain a temporary resident visa to Canada. You then travelled to Canada in [XXX] 2017 and subsequently make a protection claim in August 2017.

[19]     You have a wife and two children in Egypt and they are staying with her parents instead of at your home as you are aware that the police have gone to your home looking for you for about six times and they have even gone to look for you at your home while there’s no one there and this information was obtained by your wife and she informed you that she obtained it from the neighbours who saw them go there.

[20]     And you provided a picture of the broken door that the police caused recently in January and this photograph is Exhibit 10.

[21]     You fear returning to Egypt because you fear that the police will detain you, that you may disappear or you may possibly be killed by the police or you will be given a long sentence for something that you did not do which was you did not assault the police officers and not with weapons either.

[22]     The temporary resident visa that you obtained to Canada was obtained through the help of a person and to whom you paid $10,000 total and that they arranged that you would leave the country without any problems and so you did.

[23]     Regarding your credibility, Mr. [XXX], I found that your response were generally consistent with your Basis of Claim Form. I was concerned about the BOC omission whereby you omitted to mention that you had written your political opinions on Facebook or on social media.

[24]     You provided an explanation that you did not have any copies of these to give, given that you had someone, an expert on computers close your account or you believe they closed it permanently or deactivated it permanently so that there would be no risk to your wife and your sisters and your family in Egypt once you had left the country. Therefore, that is why you did not mention the Facebook account and your political opinions in social media to your counsel and then put that in your Basis of Claim Form.

[25]     I have considered your education level and the hearing evidence and find that this explanation under the circumstances of this case is reasonable and that you have had in this hearing opportunities to embellish your evidence by your testimony, but you did not take those opportunities. Therefore, I’ve concluded that I find you to be a credible witness and some of your response were very spontaneous.

[26]     Your evidence is consistent with the documentary material both in counsel’s package as well as in the National Documentation Package found at Exhibit 3 primarily with respect to the deteriorating human rights situation in Egypt.

[27]     Counsel’s package of Exhibit 5 speaks also about the – sorry, Exhibit 8 speaks about the corruption that has taken over Egypt primarily since the el-Sisi Government and the large bribes that are paid for people to build permit or get building permits where they should not be getting them and how this is a huge problem in Egypt at the present time.

[28]     In your case you believe that it was a legitimate and actual permit that you obtained whereby you continue – you proceeded to build your barn.  Whether it was or not that’s not – we won’t know, but the issue is that you are being charged by the police with something that you claim you did not do which was assaulting the police officers and anything that you have done with respect to protecting what you believe was your right to build that barn and complain to the police officers. They took that to be an example of a political opinion against them.

[29]     The situation in the documentary material clearly indicates that the human rights in Egypt are continuing to deteriorate.

[30]     There’s a report in Amnesty International with respect to 2017 that indicates that to be case. It speaks about the authorities arbitrarily restricting the rights to freedom of expression, association and peaceful assembly.

[31]     It speaks there also about a crackdown plot by the government that was to include members of the Muslim Brotherhood as well as anyone that was perceived to be members of armed groups, but reliable human rights sources speak about how many people who were just sympathizers are often caught and unfairly treated in these group crackdowns.

[32]     In some cases detainees in political cases or anyone who has an opposing view to the government are often held in prolonged detention without charge or without trial.

[33]     The documentary material also speaks about unfair trials when these are held and anyone who has a view opposing the current government is held accountable for that view and will be detained.

[34]     Many human rights groups throughout the world believe that the Egyptian authorities have misused many of their powers against their own citizens and that the Egyptian authorities troll through social media to see who has said anything opposing the government and that is whereby you think that they may have read your Facebook posts and they may have.

[35]     I believe that for these reasons, Mr. [XXX], you cannot ask the Government of Egypt for protection because they are the source of persecution to you.

[36]     You also cannot go elsewhere in the country to live safely without hiding because you would face the same possibility or serious grounds of persecution given what is your imputed political opinion and that means that it’s the opinion of the authorities believe you have. It doesn’t really matter whether you actually have it, but the authorities in Egypt believe that you are against the government because of what you have said and maybe because of what you have written.

[37]     So for all of these reasons I find that you, [XXX], are a Convention refugee and I therefore accept your claim.

[38]     This hearing is now concluded. Thanks, Madam Interpreter, for all your assistance. Good day, Counsel.

[39]     COUNSEL: Thank you.

[40]     PRESIDING MEMBER: Good day to you, sir. All the best to everyone and we’re concluding now.

—- REASONS CONCLUDED —–

Categories
All Countries Burundi

2019 RLLR 84

Citation: 2019 RLLR 84
Tribunal: Refugee Protection Division
Date of Decision: April 25, 2019
Panel: R. Jackson
Counsel for the Claimant(s): Micheal F. Loebach
Country: Burundi
RPD Number: TB7-08140
ATIP Number: A-2020-01459
ATIP Pages: 000023-000026

REASONS FOR DECISION

[1]       [XXX], a citizen of Burundi, is claiming refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act1 (IRPA).

FILE REVIEW PROCESS

[2]       The panel issued this decision without a hearing in accordance with paragraph 170(f) of the IRPA and the relevant instructions.

DETERMINATION

[3]       The panel finds that the claimant is a Convention refugee, as he has established that he faces a serious possibility of persecution on Convention grounds, if he returns to Burundi, by reason of his imputed political opinion and ethnicity.

ALLEGATIONS

[4]       The claimant is 21 years old and a Tutsi.

[5]       The claimant’s allegations are contained in his Basis of Claim (BOC) form. In summary, he fears returning to Burundi because he has been targeted in the past by Jmbonerakures and other state actors due to his ethnicity and imputed anti-government political opinion. The authorities and state actors have also persecuted his family members over the years, due to their Tutsi ethnicity and real or imputed political opinions.

ANALYSIS

Identity

[6]       The claimant’s identity as a national of Burundi was established by a copy of his passport.2

Credibility

[7]       The claimant’s allegations were credible and supported by probative evidence.

[8]       He presented various documents supporting certain aspects of his claim, particularly regarding the treatment his family members’ have received in Burundi.

[9]       The National Documentation Package (NDP) for Burundi shows the political violence in Burundi, government repression and violence against anti-government protesters and political opponents3.

[10]     The objective documentation mentions that protests against the government have involved Hutu and Tutsi; that Tutsi are often targeted4; and that family members of political opponents to the government’s third term of the president are subject to violence from government authorities or supporters due to their imputed political opinion.5 Sexual violence remained pervasive and was often used as a means of torture to obtain information or confessions from detainees. Rape was also committed while police officers or members of the Imbonerakure arrested a victim’s spouse or relative accused of belonging to an opposition party.

[11]     An example that illustrates the situation in Burundi is that on December 11, 2015, police and military personnel summarily executed dozens of persons in Bujumbura Mairie, including in Nyakabiga and Musaga. The bodies of persons who had been executed were also found in the commune of Mukike (Bujumbura Province). The extrajudicial executions that took place in December 2015, on a scale that exceeded those reported since April 2015, were accompanied or followed by torture, rape and arbitrary arrests.6

[12]     There are reports of summary executions by the Imbonerakure, acting either as auxiliaries of the defense and security forces or on their own initiative.7

[13]     There is ample evidence in the NDP indicating that there is a risk to Tutsis in Burundi when they are associated with political opposition, such as residing in an area associated with anti-regime protests or with a high population of Tutsis.

[14]     The objective documentation is consistent with the claimant’s allegations. The panel therefore accepts his allegations and that he has a subjective fear of returning to Burundi.

STATE PROTECTION

[15]     There is clear and convincing evidence before the panel that the state is unable or unwilling to protect the claimant, since the state is the agent of persecution. As noted in the objective documentation referred to above, the government has effective control of its territory.

INTERNAL FLIGHT ALTERNATIVE-IFA

[16]     Based on the evidence before the panel, there is a serious possibility of persecution throughout Burundi.

[17]     As indicated in the evidence above, the state is the agent of persecution and the government has effective control of its territory and would probably eventually find the claimant in another area of Burundi. Remaining in hiding in that country is unreasonable.

CONCLUSION

[18]     The claimant, [XXX], is a Convention refugee due to his imputed political opinion.

[19]     The panel accepts his claim.

(signed)           R. Jackson

April 25, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c.27 as amended.
2 Exhibit I – passport.
3 Exhibit 3 – National Documentation Package (NDP) for Burundi (March 29, 2019), items 2.1, 4.7 and 13.1.
4 Ibid., items 2.1 and 13.6.
5 Ibid., items 2.1 and 4.14.
6 Ibid., item 2.10.
7 Ibid.

Categories
All Countries Djibouti

2019 RLLR 83

Citation: 2019 RLLR 83
Tribunal: Refugee Protection Division
Date of Decision: February 5, 2019
Panel: R. Jackson
Counsel for the Claimant(s): Rodney L Woolf
Country: Djibouti
RPD Number: TB7-05577
ATIP Number: A-2020-01459
ATIP Pages: 000020-000022

DECISION

[1]       MEMBER: This is the decision of [XXX], a written version will be sent to you. So, you allege you are a citizen of Djibouti and you are being forced to marry someone against your will.

[2]       You allege the Government of Djibouti won’t protect you and there is no safe place for you anywhere in Djibouti.

[3]       You provided your Djiboutian passport and we have the copy in Exhibit 1, and I accept that you are a citizen of Djibouti and I am satisfied you have established your identity.

[4]       Your testimony was straightforward and there were no major inconsistencies or contradictions between your testimony and that of your Basis of Claim Form.

[5]       Your father passed away and you testified that arranged marriages are common in Djibouti, and in this case your uncle on your father’s side has the power to determine who you will marry. Your uncle had arranged for you to marry a much older man whom you had no interest in marrying and you had a long-term boyfriend already.

[6]       You explained this to your uncle and he threatened you and beat you up. So, then you ran away from Djibouti rather than getting married to this older man. A letter of support from your long-term boyfriend in Djibouti was presented.

[7]       On a balance of probabilities, I accept that your testimony is credible and trustworthy.

[8]       I took notice of the Chairperson’s Guidelines for claims based on gender. Also, Item 5.3 in the National Documentation Package, which indicates that forced marriages are common practice in Djibouti.

[9]       You would have no or little protection from the coercion exercised by your uncle and that pressure would not stop until you agree to go through with the marriage that he arranged for you.

[10]     And whether this is treated as a case of domestic violence or forced marriage, the documentary evidence in Item 2.1 indicates the police will not intervene to protect you from your uncle.

[11]     With regard to State protection, civilian authorities maintained effective control over security forces, but there were many significant human rights issues such as interference with privacy rights; harassing, abusing and detaining government critics; restrictions on freedom of speech, assembly, association and religion.

[12]     There is government corruption, violence against women and children with inadequate government action for prosecution and accountability, trafficking in persons, restrictions on worker rights, and child labour. Impunity is reportedly a problem in your country. The government seldom takes steps to prosecute or punish officials who commit abuses, whether in the security services or elsewhere in the government.

[13]     One of the reasons that police rarely intervene in cases of domestic violence is that the culture in Djibouti is that families and clans handle cases of violence against family members.

[14]     Under these circumstances, it is clear that it is not reasonable for you to ask the protection of the State of Djibouti.

[15]     It is relatively a small country and the documentary evidence indicates that asking you to attempt to relocate within your country as a single woman with no family connections is unreasonable, and so therefore I find it is not reasonable for you to seek an internal flight alternative in your particular circumstances.

[16]     Having considered all the evidence, I find that you have discharged your burden of establishing that there is a serious possibility of persecution on a Convention ground if you were to return to Djibouti, and so I therefore conclude that you are a Convention refugee and the Division accepts your claim.

[17]     So, this hearing is now concluded.

[18]     Thank you all for your participation today.

[19]     COUNSEL: Thank you.

[20]     CLAIMANT: Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Burundi

2019 RLLR 82

Citation: 2019 RLLR 82
Tribunal: Refugee Protection Division
Date of Decision: December 31, 2019
Panel: Elsa Kelly-Rhéaume
Country: Burundi
RPD Number: MB9-07334
Associated RPD Number(s): MB9-07374
ATIP Number: A-2020-01459
ATIP Pages: 000015-000019

[1]       After having heard the evidence and analyzed it, the Board is ready to render its decision with regards to the claims of [XXX] (file number MB9-07334) and his sister [XXX] (file number MB9-07374).

[2]       The claimants allege they are citizens of Burundi and they are seeking refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       The claimants allege that they are Hutu. In 2018, they completed their high school diploma in Rwanda. Upon return to Burundi in [XXX] 2018, the claimant, [XXX], alleges that he received a police summons asking him to present himself to the police on December 23rd, 2018. When he presented himself at this state, intelligence agents questioned him about what he had been doing in Rwanda. They took his phone and implied that he was involved with a group of youths spreading propaganda on social media.

[4]       The claimant also alleges that he was kidnapped on January 25th, 2019 where his watch and phone were stolen and he was held without food or water for two days. He alleges that he was beaten and interrogated with regards to the reasons he went to Rwanda and asking him who he was working with to undermine the government in Burundi. In the end, he was released because his father paid millions of francs to his abductors.

[5]       The claimant, [XXX], alleges that she received threatening phone calls from individuals saying that she would be killed and raped because she was gathering information on Burundi in order to help groups in Rwanda.

[6]       The claimants arrived in Canada on [XXX], 2019 and sought asylum on April 10th, 2019.

[7]       The Board finds that the claimants are “Convention refugees” as they have established a serious possibility of persecution should they return to their country of origin based on one of the grounds set out in Section 96 of the IRPA, namely their imputed political opinion for being suspected of working against the government of Burundi.

[8]       With regards to identity, the claimants provided certain identity documents at the request of the Board that contained many errors. During the first hearing, the claimants had difficulty explaining the reasons for these mistakes.

[9]       At the second hearing, the claimant Mrs. [XXX] explained that she had since spoken to her father who told her that he had obtained these documents when the claimants were already in Canada. Her father said that he had gone to different authorities to obtain the required documents, but as he does not read French he did not realize they contained mistakes. He also told her that he obtained a new national identity card for her because he couldn’t find her original one at home.

[10]     Thus, the Board gives no weight to the following identity documents as they contained many mistakes and the claimants have not established that they were obtained legitimately: Exhibits C-1 and C-2 which are the attestations of residence, C-10 and C-12 which are the birth certificates and C-13 which is the national identity card for Mrs. [XXX].

[11]     That being said, the claimants also submitted as evidence of their identity their two authentic passports on which the information is consistent with the claimants’ declarations. The claimants were also able to explain how they had obtained these passports and their explanations were conforming with the documentary evidence.

[12]     They also submitted several laissez-passer which are authentic documents given by Burundi for allowing them to travel and study in Rwanda. These documents do not contain any anomalies and are consistent with the information found in their passports. Consequently, the Board gives these primary identity documents weight and strong probative value with regards to the claimants’ identities.

[13]     While the Board evidently does not condone the fabrication of documents to bolster an asylum claim, it accepts the claimants’ explanation with regards to their father’s undertakings to obtain these documents while the claimants were already in Canada. The claimants are both young and relied on their father to obtain these documents as they thought they were absolutely necessary for their asylum claim.

[14]     In conclusion, the identity of the claimants has been established as nationals of Burundi on a balance of probabilities.

[15]     With regards to credibility, the claimants were both credible witnesses. With regards to the threats and violence suffered in Burundi, the claimant, [XXX], recounted in detail how he was detained and interrogated several times. He also explains his dissatisfaction of the Board why he did not write about his detention in his IMM 5669 form. He submitted that he did not know who had abducted him and because he had not been taken to a legitimate jail, he did not think that he had to write this information in the form. The Board finds that this is a logical explanation as the claimant was not detained lawfully.

[16]     The claimant, [XXX], also testified in detail about the threatening phone calls she received and she added significant details to those already found in her Basis of Claim form which bolster her credibility.

[17]     The claimants also provided documentary evidence that supported their allegations. Exhibits C-3 through C-7 proves that they indeed attended high school in Rwanda and Exhibit C-18 is a copy of the police summons that was issued to the principal claimant. In light of their credibility and the supporting documents provided, the claimants have proven their allegations on a balance of probabilities.

[18]     The Board finds that the claimants have established that they face a future risk of being subjected to arbitrary detention, ill treatment such as physical assault and torture, sexual violence and death if they had to return to Burundi.

[19]     The documentary evidence found in the National Documentation Package at Tabs 1.5, 2.1, 2.2, 2.3, 10.5 and 13.1 states that authorities in Burundi and Imbonerakure are responsible for serious human rights violations, summary executions, rape, kidnappings and intimidation of people who are perceived to be political opponents. Furthermore, Tab 1.5 states that individuals who have lived in the countries surrounding Burundi such as in Rwanda have been subjected to arbitrary arrests and other human rights violations as they are suspected of collaborating with rebel groups based in Rwanda who are seeking to overthrow the regime in Burundi.

[20]     Not only do the claimants fit that profile as they studied in Rwanda, but they also lived in Kasikibuye (phonetic), a neighbourhood where many young people have been arrested and where mass graves have been found. In light of the attacks and threats received by both claimants in Burundi, the Board finds that they face a serious possibility of persecution were they to return to their country of origin.

[21]     The Board further finds that there is clear and convincing evidence that the State is unable or unwilling to provide them with adequate protection. In the case at hand, the agents of persecution are agents of the State such as the police, intelligence services and the Imbonerakure. As such, the claimants cannot reasonably receive any kind of State protection. The claimants have rebutted the presumption of State protection in this particular case.

[22]     The Board finally analyzed whether the claimants could avail themselves of an internal flight alternative within Burundi. However, because they face persecution from State agents who control the entire country, they could not safely relocate anywhere. State authorities and Imbonerakure have demonstrated that they have the interest and ability to track down any presumed political opponent. Thus, they do not have a viable internal flight alternative.

[23]     Based on this analysis, the Board reiterates that the claimants are “Convention refugees” and their claims are accepted.

Categories
All Countries Yemen

2019 RLLR 81

Citation: 2019 RLLR 81
Tribunal: Refugee Protection Division
Date of Decision: November 29, 2019
Panel: Harry Dortelus
Counsel for the Claimant(s): Jonathan Richard J Lage
Country: Yemen
RPD Number: MB9-05137
ATIP Number: A-2020-01459
ATIP Pages: 000011-000014

REASONS FOR DECISION

EXPEDITED PROCESS

[1]       The Tribunal issues this decision without a hearing in accordance with paragraph 170(f) of the IRPA and the Policy on the Expedited Processing of Refugee Claims by the Refugee Protection Division.

[2]       The following is the decision related to the refugee claims of: Mr. [XXX]. He alleges that he is a citizen of Yemen and is claiming refugee protection as “Convention refugee” and as “persons in need of protection” under sections 96 and 97(1) of the Immigration and Refugee Protection (IRPA).

DECISION

[3]       The Tribunal concludes that the claimant is a person in need of protection under section 97 of IRPA.

ANALYSIS

[4]       The determinative issues are identity and credibility.

IDENTITY

[5]       The claimant’s name is as indicated in his Yemeni passport: [XXX].

[6]       The claimant has established his identity by means of the certified copy of his Yemeni passport which was seized by Canadian authorities when he claimed for asylum.1

[7]       The claimant lived in Saudi Arabia from 2011 until February/March 2016 according to his Generic Application Form and his Schedule A Form. He moved to the USA to Study in [XXX] or [XXX] 2016 and never had any problem in Yemen, according to his CBSA interview dated March 12, 2019. He left the U.S. to come to Canada on [XXX] 20192, to claim asylum.

Allegations

[8]       The story of this claim is as follows.

[9]       The claimant alleges that he is a citizen of Yemen but he was born and resided in Saudi Arabia and never loved or resided in Yemen. He says that he is married to a Saudi citizen but has no permanent residence in that country or citizenship. He fears of being deported to Yemen where he may be targeted by the militias, including the houthis, as an outsider.

[10]     He alleges that his relatives were assassinated in Yemen in 1974, 2013 and 2015 and he has no known relatives in Yemen. He is afraid to return to Yemen because, as a Yemeni from abroad, he could be targeted by various militias there.

[11]     In his interview with CBSA authorities, the claimant recognized that he had no personal history of persecution or harm in Yemen3.

CREDIBILITY

[12]          The claimant has established, on the balance of probabilities, that as a young Yemeni citizen who never lived or resided in that country, that he may face harm because of the ongoing civil war in Yemen.

[13]     The evidence shows that he was born in Saudi Arabia and married a Saud citizen, which does not grant him the right of citizenship in Saudi Arabia. His family also resided in Saudi Arabia and outside Yemen, which would leave the claimant vulnerable if he was to be sent to Yemen.

[14]     The documentary evidence shows that Yemen is not governed by a strong central government and various militias control several parts of the country and as a person who never lived in Yemen and carries foreign identity documents, the claimant could easily become identifiable thus a target of those militias.

[15]     Given the fact that there is no state protection and the situation is similar all over the country, the Tribunal concludes that there is a risk to the claimant’s life if he was to be sent back to Yemen.

DECISION

[16]     Therefore the claim is accepted.

(signed)           Harry Dortelus

November 29, 2019

1 Notice of Seizure of the claimant’s Yemeni passport dated March 12, 2019.
2 Canadian Border Services Agency (CBSA) interview dated March 12, 2019.
3 Note No. 2.

Categories
All Countries Rwanda

2019 RLLR 80

Citation: 2019 RLLR 80
Tribunal: Refugee Protection Division
Date of Decision: September 26, 2019
Panel: Julie Morin
Country: Rwanda
RPD Number: MB9-02867
ATIP Number: A-2020-01459
ATIP Pages: 000006-000010

[1]       So, I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally today. These are the reasons for the decision in the claim of [XXX], who claims to be a citizen of Rwanda, and is claiming refugee protection pursuant to section 96 and paragraph 97(1) of the Immigration and Refugee Protection Act.

ALLEGATIONS

[2]       You allege the following. You are a political activist. You are against the government of Paul Kagame, who is the current President in Rwanda right now. You’re coming from a family with a history because your father was targeted by the regime. He was part of the same party, but your father opposed the President and he was, you said in your testimony actually, that he was killed by the regime, from what I understood. Yourself, in 2013, you started your social involvement by funding a non-governmental organization called “Help a Child Initiative” which was in 2013, as I mentioned, until 2015. But you explained to me as well that the government asked you… You were able to gather a lot of parents to take care of children, and the government wanted you to promote the referendum and ask the parents to vote “yes” to the referendum. At that time, you refused to do that, and you left the organization.

[3]       You left Rwanda for a few years, two years actually. You worked in Dubai. Then, you came back to Rwanda and then, there, you started to work with, I should say closely, with Diane Rwigara. Supporting her in her… in her… in her campaign, and she was running for President at that time. You said that, even like you were in Dubai, you called her to give her your support. Then, after that, the government just did not allow her to continue to run as President, but you decided with her and with a group of people to continue your political involvement. And, you founded a movement called “[XXX] Movement”. And, the election took place in August 4th,  2017. You…  Diane Rwigara was not a candidate; she was not allowed as I mentioned.

[4]       Then, yourself, you started to have problems. You left Rwanda for the United States in [XXX], 2018, but during that year there was a lot of problems you had. You were arrested twice in August 2017, and in October as well. You were interrogated. You were even accu… You appeared in court and you provided the judgement from the court. You were accused of being… of having influence or wanted to… like an enemy of the nation, being against the government and bringing the youth in your movement. You were…  You had to report to the police every week, then, until December 2017, but that continued after. You received phone calls, and in January threats. You were worried, but finally after a few months you…  you left for the U.S. And, after, even like… When you left, and in October 17, you received a second summons. The government was still after you. You had to report to the authorities for criminal case… for a criminal case. There is no detail, but you, of course, you didn’t go. You were in the U.S.A friend … A co-worker actually sent you the summons, so you were able to provide the original today. So, you’re… The authorities are still looking for you and you’re afraid of going back to Rwanda because of your political activities, your political opinion.

DETERMINATION

[5]       This is my decision. I find that you are a “Convention refugee” as you have established a serious possibility of persecution on account of your political opinion.

ANALYSIS

IDENTITY

[6]       I find that your identity as a national of Rwanda has been established through your testimony and also the supporting documentation filed, namely your passport from Rwanda. In the passport, there was also your American Visa, and your identity was established through that process as well.

CREDIBILITY

[7]       I find you to be a credible witness and therefore I believe what you have alleged in support of your claim. You testified in a straightforward manner, and I didn’t find contradictions or omissions between your testimony and the other evidence I have. I think that you had   you had a lot to say. For instance, you wanted to speak about your family background. I think you were influenced by your father’s decisions in your activities and the way you… in your thoughts as well. So, for that, I find that you were credible.

[8]       Also, you provided important documentation, the membership card from the [XXX], Diane Rwigara’s movement. You provided this card in P-2. You provided as well in P-3 the decision of the court. You were accused, most precisely, you were accused of crime of discrimination, divisionism among the youth, instigating divisions to hate the country and leaders, as well as genocide ideology, as stated in your case. So, this is a serious accusation in the judgement, but from the evidence I have, you only express your political opinion and you were fighting for your ideas. There’s also P-4, the summons you received from… the second summons you received while you were… while you were in the United States in October 2018. It says, as I mentioned, it refers to “criminal cases”. It doesn’t say precisely what it is, but it says if you will not appear, you will be apprehended by authorities in charge. So, they are ready to arrest you. But you didn’t. So, I took all these exhibits into consideration, and I find that they contribute to your allegations … in supporting your allegations.

OBJECTIVE BASIS OF FUTURE RISK

[9]       Based on the credibility of your allegations, and the documentary evidence that I have, I find that you have established a future risk that you will be subjected to the following harm: arrest, detention, torture, and death, possibly, death. The torture… You were submitted to torture before, and also, you also mentioned that you have… there are people who are involved in your movement who have simply disappeared. The fact that you face this risk is corroborated by the following documents, and this is the last version of the NDP. So, there are a lot of documents about how the authorities are treating opposition in Rwanda. So, for instance, on the Rwandan authorities suppressing dissent through violence and intimidation, and on individuals who are subjected to arbitrary arrest and physical abuse in custody, this is in tab 2.3. On the fact that political parties are unable to function normally in Rwanda because of arrest and harassment of their members, this is in tab 2.4. There is only one opposition party registered in Rwanda. The other parties, they cannot be… they are not allowed, and this is in tab 2.4. On the repression of any dissident voice qualified as being enemy of the nation, this is in tab 2.7. And, on opposition parties and media reduced to silence, this is in tab 2.7. Now, we spoke about the father of Diane Rwigara, Assinapol Rwigara, who died in 2015, officially it’s from an automobile accident, but the family suspects that… the family believe that it was orchestrated, and this is in tab 4.12 and also in tab 9.1.

NATURE OF HARM

[10]     This harm clearly amounts to persecution.

STATE PROTECTION

[11]     I find that there is clear and convincing evidence before me that the State is unable or unwilling to provide you with adequate protection. In fact, the State is the agent of persecution, and the State is looking for you. You provided this… this evidence, the second summons, that they want to arrest you. So, I don’t think that it would be reasonable for me to tell you “well, you go and ask for protection from the State”. You would be at risk I believe. There are a lot of arrests of members of the opposition, leaders, activists and journalists right now in Rwanda, and this is in tab 4.1. This is a Human Rights Watch report that details this information. There are also disappearances. People, they disappear simply or they are like you are… you were, actually. They are… They have… They are charged with criminal cases. So, that is not State protection. In fact, the State wants to punish these people.

INTERNAL FLIGHT ALTERNATIVE

[12]     I have considered whether you would be able to go to another region of Rwanda and on the evidence before me, I find that there is serious possibility of persecution throughout Rwanda. There is, in a report in tab 2.7, which explains that though in Rwanda there is some economic success, and it appears to be a great country. But in fact, there is a repression and it is an authoritarian State now in Rwanda. People have a fear of expressing their ideas. There is, again, disappearances of people or opposition members, assassinations. So, this is all in this report, as I mentioned.

CONCLUSION

[13]     Based on the analysis above, I conclude that you are a “Convention refugee” and therefore I accept your claim.

Categories
All Countries Libya

2019 RLLR 79

Citation: 2019 RLLR 79
Tribunal: Refugee Protection Division
Date of Decision: April 9, 2019
Panel: Jeffrey Brian Gullickson
Country: Libya
RPD Number: MB8-19759
RPD Associated Number(s): MB8-19775
ATIP Number: A-2020-01459
ATIP Pages: 00001-00005

[1]       I have considered your testimony and the other evidence in this case, and I am ready to render my decision orally. These are the reasons for the decision in the claims of Mr. [XXX] and Ms. [XXX], who are citizens of Libya and are claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons, I have considered and applied the person’s… the Chairperson’s guidelines on women refugee claimants fearing gender-related persecutions.

ALLEGATIONS

[2]       The claimants are 22 and 19. They are from Tripoli. They are associated with Misrata through their brother. They had come to Canada approximately in 2014 as students, last… leaving the country, for Mr. [XXX], it was in late [XXX] 2015, for Ms. [XXX], it was [XXX] 2016. The two claimants are brother and sister. They do have two siblings who are still leaving in Libya, but most of their family members, or at least their parents, are living in Qatar where the two claimants had lived for several years before the revolution in Libya in 2011. The claimants had visited Libya recently for Mr. [XXX] in [XXX] 2015, for the female claimant, his sister, in [XXX] 2016. They had stayed for approximately two weeks at that time and for period previous to that, when they were visiting but living in Qatar. The brother, [XXX] (phonetic), had fought in armed conflict in one of the militias starting in 2011 and through to 2013. He was fighting Gaddafi forces, pro-Gaddafi forces, during that period, and he had been targeted by rival militias. And, he had warned the claimants not to return to Libya. The claimants fear that they would be targeted by rival militias, or other groups, and would be the targets of kidnapping, extortion, or related harm, or some harm just related to being a perceived opponent for political reasons or for being associated with Misrata militia. So, the claimants made their refugee claims eventually in Canada.

DETERMINATION

[3]       I find that you are “Convention refugees” as you fear persecution by reason of a member of a particular social group or for imputed political opinion, and this is in association with your brother [XXX] activity in the Misrata militia or a similar militia associated with Misrata, and that you would be targeted by rival militias as a possible political opponent.

ANALYSIS

IDENTITY

[4]       I find that your identity as nationals of Libya is established by your passports you’ve deposited as evidence.

CREDIBILITY

[5]       I find that you were generally credible in your testimony. There were some credibility concerns but they are not determinative. There is probative evidence in support of your claim. The evidence that you did submit were primarily the DVD, which was fairly detailed, it’s almost … I think it’s an hour and a half. It’s approximately an hour and a half, that was a documentary on the claimants’ brother [XXX], who fought in the armed conflict in Libya after the revolution or in the period of 2011 and shortly after that, showing that he had taken up arms and fought in that conflict. He is clearly identified in the credits of the film as well and corresponds to the claimants’ Basis of Claim form where they list their family members. Another document is P-2, which is a letter from the claimants’ father, which is basically explaining his limited and temporary status in Qatar as an employee of a [XXX]. It’s unclear whether he would be able to renew his status in Qatar, but one of the allegations by the claimants is that if they were not allowed to stay in Canada, and there was a risk of being forced to Libya, they would have no refuge in Qatar since their own father has only temporary status there. And, the claimants don’t appear to have any permanent status in Qatar.

[6]       The Documentation Package for Libya, dated March 2019, describes the conflict in Libya. That the Gaddafi regime was violently overthrown in 2011 by armed insurgents and NATO, and that’s tab 1.12, sections 5.1.1 to section 5.1.3. And, that’s in the Documentation Package. There is conflict between the ruling groups in Libya. One is in Tobruk and Albida now, in the East, and the other is the… is in the West in Tripoli, which is acting under the UN Accord which had named the government of National Accord as the governing body or the governing structure, and that was in 2015. But that governing structure was not endorsed fully by the parties, and that there are two competing factions in the East and in the West now. And, that is described in tab 1.2, sections the same, 5.1.1 to 5.1.3.

[7]       The NDP mentions that family association is not documented as a factor to probably cause danger for other family members who are not primary target … the primary target of aggression by militias or the government in Libya. But there is conflicting information about that, because there is much information in the Documentation Package that describes security zones and armed militias organizing along family clan and tribal lines. So, that would mean by association people could be targeted for violence, and that information is found in tab 9.4 of the Documentation Package, section 4.11. The National Documentation Package indicates that the rest of the country, and this is outside Tripoli, Tobruk, and… what did I say? Albida, and there are other areas that are being disputed by various factions, armed militias, etc. They would be pro-Gaddafi, anti-Gaddafi, Islamic extremist groups, etc. And, there is not a government body that could offer adequate State protection for those areas in Libya. The Documentation Package indicates that Tripoli’s militia groups Libya Dawn, or it’s an umbrella. The group Libya Dawn was dominated by the Misrata based on (inaudible) in 2014. And, that militia included the Tripoli’s… Tripoli Revolutionaries Brigade, or the TRB, and that’s found in tab 1.12 section 7.6. The NDP mentions in several places the Misrata militia as the local armed forces which include… or included … The Misrata had been fighting other forces, and this would be in the Magarha and Sabha region, in 2016, and this is… so, there are some rival militias fighting against Misrata, that’s 4.15 pages 20 to 21.

[8]       There are other mentions of Misrata fighting other rival militias. In any case, the National Documentation Package… because the two government that are functioning, and because there’s much maneuvering by the various militias to control territory, being associated with one or the other militias would put someone at risk, necessarily being identified as an opponent to the other militias. So, the claimants, I understand in their situation, their relationship with their brother would be by association, associated with Misrata militia and they would face trouble and would be targeted by the militias which are opposing Misrata.

STATE PROTECTION

[9]       I find there is clear and convincing evidence that the State, as we understand it, Libya is unable or unwilling to provide adequate protection for the claimants in their particular circumstances, partly because part of the State may actually be against the Misrata militias, for example the government in the East. And the other reason is that, even the government in the West, the National Documentation Package shows (inaudible) I already stated. And, also mentions that the government in the West that’s been sanctioned by the UN to… sanctioned by the UN meaning that they have the approval of the UN, they have delegated their security duties to various militias in the area that are allied with the government in the East… or in the West rather, in Tripoli. So, consequently, the State has not shown their capacity or willingness to protect the claimants, and they would not… the State would not be able to protect the claimants if they were to go in other areas in Libya.

INTERNAL FLIGHT ALTERNATIVE

[10]     On the evidence, I find that there is a serious possibility of persecution throughout Libya for the claimants for the same reasons I’ve already stated above, general lack of security, lack of State control of certain territory, and the inability to protect the claimants.

CONCLUSION

[11]     I conclude that you are “Convention refugees” and I accept your claim. Thank you.

Categories
All Countries Democratic Republic of Congo

2019 RLLR 78

Citation: 2019 RLLR 78
Tribunal: Refugee Protection Division
Date of Decision: November 6, 2019
Panel: Chad Prowse
Country: Democratic Republic of Congo
RPD Number: VB8-05510
ATIP Number: A-2020-01274
ATIP Pages: 000250-000254

— DECISION AND REASONS BY THE MEMBER

[1]       PRESIDING MEMBER: Mr. [XXX] I’ve considered your testimony and the other evidence in your case and I’m ready to render my decision orally. I would like to add that in the event that written reasons are issued they will reflect those that I’m giving you now.

[2]       Mr. [XXX], the claimant, is a citizen of Democratic Republic of Congo, hereafter referred to as DRC who claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       The claimant alleges the following in his Basis of Claim form and narrative: that he belongs to the Banyamulenge Tutsi ethnic group. His refugee claim is based on his fear of persecution at the hands of various militia groups, government authorities and other Congolese tribes who consider the Banyamulenge community as foreigners in the DRC.

[4]       The claimant states that he has suffered a great deal in his country on the basis of his membership in this ethnic group. He says that he cannot count how many times he has walked in fear, been tortured, attended funerals of innocent Banyamulenge who are massacred including his own family members, relatives, friends and neighbours, all from this community.

[5]       He alleges that violence against his ethnic group is country-wide in Congo and has intensified after the recent elections due to the fact that the current government campaigned on the promise of uprooting foreigners and leaving Congo to the Congolese.

[6]       He refers to a few recent incidents of personal persecution leading to his departure from the country. In [XXX] 2017 he alleges that he was captured by rebels and tortured along with some of his workers. One of his workers died and [XXX] of his cows were stolen.

[7]       In [XXX] 2018 Mai-Mai militias escalated their attacks on Banyamulenge villages. At this time he was in Goma to purchase salt and medication for his cows. His farm was attacked and one worker was killed. He went to the police in Goma to report the incident but while there he was thrown into a police cell, tortured and had to bribe the guards to be released.

[8]       Recently while he was in Canada he learned that his farm was attacked again by militias, cows were taken and another worker was killed.

[9]       The claimant departed the DRC on the [XXX] 2018, transiting [XXX] on a Canadian visa that he had previously obtained.

[10]     The determinative issue in this case is credibility. The claimant’s identity as a citizen of DRC is established by his testimony and the supporting documentation filed, including a certified true copy of his passport.

[11]     When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.

[12]     I found the claimant to be a credible witness. He testified in straightforward manner and there were no relevant inconsistencies or omissions in his testimony or contradictions between his testimony and other evidence before me that have not been explained.

[13]     The claimant called his grandson [XXX] (ph) as a witness who was able to corroborate his allegations.

[14]     The claimant also supported this claim with adequate personal documentation including his passport and the GCMS notes pertaining to his visa application which support his tesetiony that he is from the tradition location of the Banyamulenge community in south Kivu.

[15]     On a balance of probabilities I find that the claimant has established that he is a member of the Banyamulenge Tutsi ethnic group from the province of South Kivu and that he was targeted, threatened, harmed by militia and/or other criminal armed groups on the basis of Convention grounds.

[16]     The available country evidence in the NDP establishes that there is an objective basis for the claimant’s fear of persecution. According to the Response to Information Request RIR COD 105 270 on the treatment of Banyamulenge, the Banyamulenge community in the narrow sense of the term is located in South Kivu; however, the term Banyamulenge is also used broadly to designate the Tutsi or other people of Rwandan origin in the DRC.

[17]     On a balance of probabilities the claimant is a member of the Banyamulenge located in South Kivu. The country documents establish that the Banyamulenge face some discrimination and mistreatment throughout DRC and that they are victims of ethnically motivated conflict in South Kivu and other areas at the hands of a wide variety of non-state and state actors.

[18]     According to the RIR the Banyamulenge are considered by many Congolese as recent immigrants with no rightful claim to Congolese citizenship. Anti-Tutsi ideology is still present in the DRC and some Congolese call for the return home of all Rwandan groups.

[19]     As the claimant himself expressed, his father and his father’s father and perhaps beyond that have all been born and raised in DRC. The document titled It’s not all about the land: Land disputes and conflict of the Eastern Congo explains the nexus of land, identity and conflict in South Kivu and other areas of DRC. According to this document, the most visible land-related conflicts in the Eastern Congo which have contributed to large-scale violence are those that have pitted ethnic communities against each other. Land, identity and conflict are often directly connected with competition for land undermining ethnic co-habitation leading to large scales violence.

[20]     The dramatic and long-term impact of such intercommunity struggles is illustrated by the case of Calais (ph) South Kivu. Here tensions are mainly the result of the expected return of Tutsi communities to their lands on Calais’ high plateau mountain range. These communities left the region in 1994 as a result of attacks from Hutu armed groups that were related to spill-over effects of the Rwandan genocide.

[21]     Prior to their departure, Tutsi communities made arrangements about their concessions, either selling the land or leaving it custodians or guardians. At present, however, much of this land is occupied by Hutu farmers who fear the loss of their livelihood options in case the original Tutsi land owners return. In this case land disputes have revived long-standing animosities and contribute to the enduring presence of armed groups.

[22]     While community leaders use these armed groups to ensure and protect their access to land, the persistence of these groups is also connected to land-grabbing by politico-economic elites, which further reduces the livelihood options of Hutu farmers.

[23]     The ethnically motivated violence towards Banyamulenge is well-documented in the NDP with sources referring to the death and displacement of members of these communities over the years.

[24]     United State Department of State report for 2018 reports that conflicts continued in parts of eastern DRC, particularly in the provinces of North Kivu, South Kivu, Tanganyika, lturi, Uele, and provinces in the Kasai (ph) region. Foreign rebels and militia groups, RMGs, such as the Democratic Forces for the Liberation of Rwanda, the Allied Democratic Forces National Army for the Liberation of Uganda, the National Forces of Liberation and the Lord’s Resistance Army, as well as indigenous RMGs such as various Mai-Mai local militia groups, Kamuna Nasapu (ph) and the Banamura (ph) continue to perpetrate violence against civilians.

[25]     RMGs committed abused in rural areas of North Kivu, South Kivu the Kasai provinces and the former provinces of Katanga and Noriyantal (ph) including killing, raping and torturing civilians.

[26]     I find that the claimant has rebutted the presumption of state protection and that he does not have a viable internal flight alternative. United States Department of State report states that civilian authorities did not always maintain control over the security forces.

[27]     Additionally, the government took military actions against some RMGs but had limited ability to investigate abuses and bring the accused to trial. Moreover, government security forces were one of the perpetrators of abuses, including unlawful killings, disappearances and torture.

[28]     There’s also evidence that the authorities have failed to intervene to protect the Banyamulenge. According to the RIR, sources state that the Congolese Army did not intervene to protect the violence against them in 2014.

[29]     Human Rights Watch also criticises members of the UN Peacekeeping Mission in the DRC who were based a few kilometres away for not intervening. Sources note however that the authorities initiated a Commission of Inquiry into the violence and two members of the armed forces were arrested.

[30]     Finally, the claimant has provided testimony that is presumed to be truthful that he was mistreated by the authorities when he attempted to seek police protection prior to his departure from the country.

[31]     I find that any IFA fails on the grounds that it would be unreasonably harsh. The claimant is an 82 year old man with medical conditions. He has no relatives outside the conflict zone. His immediate family members have disappeared in DRC.  He is from a rural area where he managed two farms and worked as a [XXX]. Although there is some evidence that some Banyamulenge in Kinshasa are well integrated in political, social and economic terms, the claimant has poor prospects for establishing himself there or anywhere else in the country.

[32]     I find that he has met the high threshold for establishing that an IFA would be unreasonable.

[33]     Therefore, having considered all of the evidence before me, I determine that there is a serious possibility that the claimant would be persecuted in DRC on grounds of race or nationality. Therefore, I find that Mr. [XXX] is a Convention refugee and I accept his claim for protection.

—PROCEEDINGS CONCLUDED