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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