Citation: 2019 RLLR 117
Tribunal: Refugee Protection Division
Date of Decision: April 26, 2019
Panel: Miryam Molgat
Country: Rwanda
RPD Number: VB8-02636
ATIP Number: A-2020-01459
ATIP Pages: 000228-000232
— DECISION
[1] PRESIDING MEMBER: This is the decision in the claim of Mrs. [XXX]. I have considered your testimony and the other evidence in the case and I’m ready to tender my decision orally. I would like to add that in the event that written Reasons are issued, a written form of these Reasons may be edited for spelling, syntax and grammar and references to the applicable case law and documentary evidence may also be included.
[2] The claimant claims to be a citizen of Rwanda and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I find that the claimant is a Convention refugee as the claimant does have a well-founded fear of persecution on a Convention ground in Rwanda. My reasons are as follows.
[3] The claimant’s complete allegations are set out in the Basis of Claim Form at Exhibit 2 and need not be repeated here in detail. To summarize briefly, the claimant is a woman born in 1979. She left her country on [XXX], 2018. She left behind her three children, her siblings and her mother. Her claim is based on gender-related abuse from her husband, [XXX] (phonetic). The abuse was sexual and physical in nature. The certainly sought state protection to no avail. She suffered a miscarriage as a result of her husband’s abuse. She was repeatedly raped by her husband in the course of their marriage. Her husband is employed by the [XXX] and is associated with the [XXX].
[4] The claimant alleges that neither state protection nor safe and reasonable internal flight alternatives are available in her country of nationality. The main issue is state protection.
IDENTITY
[5] The claimant’s national identity has been established by the testimony and the supporting documentation filed and entered in the proceeding. The current passport is on file, along with other documents. I’m satisfied of the claimant’s identity.
NEXUS
[6] For the claimant to be a Convention refugee, the fear of persecution must be by reason of one of the five grounds enumerated in the Convention refugee definition. In other words, the claimants must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. I find that the harm feared by the claimant is by reason of one of the five grounds enumerated in the Convention refugee definition, namely, as a woman victim of domestic abuse, i.e. membership in a particular social group.
[7] Turning to credibility, when credibility is assessed there are two principles that are followed. Firstly, when the claimant swears to the truthfulness of certain facts there is a presumption that what she is saying is true unless there’s reason to doubt it. Secondly, when assessing credibility, the panel is entitled to rely on rationality and commonsense. The determination as to whether the claimant’s evidence is credible is made on a balance of probabilities.
[8] I had concerns regarding credibility because of the significance of some of the Basis of Claim Form amendments and very specifically the amendment relating to the claimant’s husband’s association with the DMI. DMI is the [XXX]. I also had credibility concerns regarding a certain lack of corroborating evidence in support of her allegations.
[9] Having heard the claimant’s testimony and having observed her in person, I find her credible. Her demeanour was very credible. Her face was very expressive and was a direct and contemporaneous expression of emotions that her testimony conveyed. There was a lack of embellishment to her testimony. She many times simply said, “I don’t know” when asked questions. Her testimony was direct. Her explanation for some of the omissions from the original Basis of Claim Form were reasonable. She explained that she had so many things in her head and I found that her explanation for what she meant by that was very credible and directly supported the subject matter of the Chairperson’s Gender Guidelines in terms of what one can reasonably surmise and expect in the testimony of gender-related persecution, which in this case is a history of horrific abuse at the hands of her husband. So I draw you negative inference from the fact that certain aspects of the claimant’s material allegations were not in her original Basis of Claim Form.
[10] In addition, she added credible testimony in her hearing which was not in the Basis of Claim Form, for example, explaining that she had considered divorce and she provided a reasonable explanation for why she did not go ahead and actively take steps to obtain a divorce from her husband and she also said that her husband threatened her and said that she would only leave the house dead.
[11] The claimant was able to reasonably and consistently explain why she had failed to mention the DMI in her original Basis of Claim Form and she was able to credibly testify to her husband’s employment history. Given the relatively secretive nature of [XXX], I found her lack of detail on his employment with the DMI and how he combined that with his [XXX] to be credible. To draw a parallel, unless the spouse worked for the [XXX] in the case of Americans, I would not reasonably expect the spouse to know a lot about what the other spouse in the marriage did while employed by the [XXX], for example.
[12] I further note that the claimant, who has 12 years of education, came across as relatively unsophisticated and that this helped me to understand certain perceived gaps in the credibility which she was able to resolve to my satisfaction at the hearing.
[13] Moving on to the question of subjective fear, I found her credibility in this regard to be - her testimony in this regard to be credible and she provided reasonable explanations for why she had not sought refugee status in the United States. She explained in a spontaneous way why she had decided to come to Canada and why she had chosen Vancouver specifically. Her explanation had to do with the lack of a significant Rwandan population here and the fact that she knew no one in Canada, unlike the situation of the people she was visiting with in the United States. So I found that that aspect of her oral testimony added to her credibility and actually positively contributed to a finding that she does have a subjective fear.
[14] Turning to the determinative question of state protection, it was open to the claimant, according to the law, to rebut the presumption of state protection with clear and convincing evidence. Individual police figures do not prove that state protection is inadequate and it is unclear to me whether the claimant reasonably tested the effectiveness of state protection in Rwanda. I disagree with counsel as to whether there is adequate state protection for domestic violence in Rwanda but, ultimately, that’s neither here nor there because I agree with counsel that the claimant, in her specific case, is unable to access effective adequate state protection and I will start the analysis by assuming, for the purposes of analysis, that there is acceptable enough or adequate enough state protection for domestic violence in Rwanda that one needs to try to understand why the claimant did not make further efforts to obtain state protection.
[15] I note in this regard that the Response to Information Request, RWA104588.E, which is item 5.1 of the National Documentation Package at Exhibit 3, provides detailed information on the existence of hotlines and of one-stop centres and on the fact that there are gender desks at the police station and that there is a gender desk within the Rwandan Defence Force and Ministry of Defence.
[16] I note, and I agree with counsel, that there are shortcomings to the state protection measures in place in Rwanda for domestic violence, but I do note, for example, still from this Response to Information Request, that there have been several convictions perpetrated of domestic violence. For example, there was a conviction of 115 perpetrators of spousal harassment and there was a conviction of 53 perpetrators of adult rape. I note that the possible sentence for spousal rape is notably lower than that of adult rape outside of marriage and I note that, in general, the attitude in Rwanda appears to be that this is often a private matter which should be resolved, probably to the detriment of the victim, within the family. But all the same, when I look at the extensive information in this Response to Information Request, I found that there were more avenues that the claimant could have pursued and did not.
[17] However, I find that in her case she would not have been able to access adequate state protection, not because of a problem with the Rwandan Police, who are the first level of response to complaints of domestic abuse, but rather because of her husband’s association with the DMT. This matters not only because of what I find is objective evidence supportive of an adequate level of state protection for domestic violence in Rwanda, but also because the claimant twice testified that had her husband not worked for the DMI, she would have been able to get state protection. I can’t ignore that testimony and even less so when it was clear and direct, unsolicited. It was not in response to a direct question and it came twice during the hearing.
[18] Now, turning to the DMI, as was well argued by counsel, it’s not surprising that there’s little information on the DMI, given the nature of its work. I find that the DMI does exist. As is indicated by Exhibit 6, it is a notorious agency and I find that, on a balance of probability, it is an agency with malevolent goals and practices. Unlike the evidence on the Rwandan Police, which seems to be more mixed, the evidence on the DMI would point to an agency which has specialized in human rights abuses conducted in a covert way and, as the claimant’s testimony on what little she knew of her husband’s work, fully supported this. She said that she went out at night. She said that he came back with bloodstained clothes and she provided during the hearing testimony that was shocking with regards to what the DMI seem to do, which in that case was to blow up the home with the family inside the home of people who are political opponents of the Rwandan government, and this was in addition to information that she had already provided in her Basis of Claim Form of people being persecuted in front of her and her husband showing her the abuse as a way of further intimidating her.
[19] In addition to her husband working for the DMI, she has established that he is someone who is evil and who continues to want to harm her and her family members. Her testimony on what has happened to her family members since she left was credible. I note that at one point he was sentenced to a criminal sentence, but I found that that is not enough for me to conclude that he no longer has the profile or the motivation or the capacity to persecute her should she return to Rwanda and I further find that this profile of his is such that I find that he would thwart any serious attempt on the claimant’s part to obtain state protection.
[20] When asked why she did not complain at a police station where her husband was not employed, the claimant spontaneously testified that that is not how it works and that it’s not possible to do so. I accept that explanation and I accept that she did complain twice to the police of her husband’s domestic abuse and that there was an utter failure of state protection in response to this. So given all of this, I find that the claimant has rebutted the presumption of state protection with clear and convincing evidence.
[21] Turning to the last question, which is that of internal flight alternative, it was not canvassed at the hearing, but I find that, given her husband’s profile and the fact that he is employed by the DMI, I find that the claimant faces a serious possibility of persecution throughout Rwanda as the state is in control of the entire territory and it would not be difficult for the claimant to locate her should she return. It’s clear that he’s motivated to do so and, in addition, Rwanda is a geographically quite small country.
[22] In conclusion, having considered all of the evidence, I determine that there’s a serious possibility that the claimant would be persecuted in Rwanda for one of the five grounds enumerated in the Refugee Convention. I find that the claimant is credible. She has established that her husband works for the DMI and has the motivation and capacity to continue to persecute her should she return to Rwanda. This matters, as it relates to the determinative issue of state protection.
[23] Having come to this conclusion, I have not conducted further assessment under section 97(1) of the Act. I conclude that the claimant, Mrs. [XXX], is a Convention refugee and I, therefore, accept her claim.
— DECISION CONCLUDED