2020 RLLR 3

Citation: 2020 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: August 20, 2020
Panel: Anika Marcotte
Counsel for the Claimant(s): Nico Breed
Country: Democratic Republic of Congo
RPD Number: VB9-08742
Associated RPD Number(s): VB9-08743
ATIP Number: A-2021-00540
ATIP Pages: 000020-000027

REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claim of [XXX] as a citizen of Congo-Brazzaville and her minor child [XXX] who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the ” Act”).¹ The claimants’ minor son, [XXX], is a citizen of the United States (US). As such, his claim will be assessed against that country.

[2]       At the start of the hearing, the principal claimant was designated as the representative for the minor claimant.

[3]       In rendering my reasons, I have considered and applied the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

ALLEGATIONS

[4]       The principal claimant has outlined her reasons for seeking Canada’ s protection in her Basis of Claim (BOC) form², as well as through her testimony. The principal claimant fears returning to Congo- Brazzaville because she fears further physical and sexual violence at the hands of Mr. [XXX] the minor claimant’ s father.

DETERMINATION

[5]       I find that the principal claimant is a Convention refugee pursuant to section 96 of the Act.

[6]       I find that the minor claimant is neither a Convention refugee pursuant to section 96 of the Act nor a person in need of protection pursuant to subsection 97(1).

Identity

[7]       The principal claimant’s identity as a national of Congo-Brazzaville is established by her testimony and passport³ in evidence. The claimant’s minor son’s identity as a national of the US is established by his passport.⁴ I am satisfied of their identity by these documents.

Countries of Reference

[8]       In order for a claim for refugee protection to be successful, the Act requires that a claimant must establish a claim against each of their countries of nationality.

[9]       The minor male claimant did not advance a claim against the US. Indeed, there is no evidence before me that he faces a risk of persecution or a risk to life or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture, in the US. Accordingly, his claim for protection is rejected.

Credibility

[10]     In refugee determination cases, there is a presumption that claimants and their allegations are truthful, unless there are reasons to doubt it. I found the principal claimant to be a credible witness and therefore believe what she alleged in support of her claim. She testified in a straightforward manner, offering spontaneous answers to my questions. In this case, there were no material inconsistencies or contradictions within the claimant’s testimony that were not reasonably explained or that undermined her credibility with respect to her allegations.

[11]     I find the principal claimant’s testimony credible and believed the allegations in support of her claim. She met the agent of harm in 2015 while she worked in her grandmother’s restaurant. His bodyguard approached her asking for her phone number telling her Mr. [XXX] found her attractive. The claimant noted that she was aware that the agent of harm was the [XXX] of the President, a [XXX] She also knew that he had two [XXX]. She provided her phone number and Mr. [XXX] called her to set up a meeting. Over the course of 2015 to 2017 the agent of harm provided the claimant with an apartment in Pointe Noir and Brazzaville where he would come spend time with her. He also provided her with two bodyguards who would act as chauffeurs, run errands for her and monitor her. A few months into their arrangement the agent of harm started to physically and sexually assault her. She never sought protection from the police as she feared her assailant’ s power over the police and that they would not take claims of domestic abuse seriously. In [XXX] 2017, the violence escalated to such a point that the claimant passed out and was brought to the hospital the next day by a maid. At the hospital she learned that she was pregnant and decided to leave for the US in [XXX] 2017.

[12]     The principal claimant returned to Congo-Brazzaville in [XXX] 2017 in order to get her older child that she had left with her mother, as she feared for her safety after the agent of harm had contacted her mother asking her whereabouts. The claimant met with Mr. [XXX] in [XXX] 2017 after he reached out to her. During that encounter, he threatened her and her children. During this encounter she found the agent of harm in a sexually compromising situation with the claimant’s minor daughter. Fearing for her life and those of her children the principal claimant left for the US in [XXX] 2017.

[13]     The principal claimant submitted corroborative documents including identity documents, birth certificates and letters from the hospital⁵ consistent with her BOC⁶ and testimony. The objective country conditions evidence in the National Documentation Package (NDP) also substantiates the claimant’s allegation concerning the prevalence of domestic abuse in Congo­ Brazzaville. Based on the presumption of truthfulness, the claimant’s testimony, and the corroborative evidence, I find, on a balance of probabilities, the principal claimant to be a credible witness who has established that she is the victim of domestic violence at the hands of her former partner.

Well-Founded Fear of Persecution and Risk of Harm

[14]     I find that the principal claimant has established sufficient credible evidence to demonstrate that she faces more than a mere possibility of persecution if she returns to Congo­Brazzaville.

[15]     The agent of harm demonstrated his motivation in seeking out the principal claimant upon her return to the Congo-Brazzaville, as well as through ongoing inquiries as to her whereabouts with the principal claimant’s mother. The principal claimant also testified that the agent of harm did not want her to have his child and fears severe repercussions should she return to the country. This demonstrates a prospect of further violence if the claimant returns to Congo­Brazzaville.

[16]     I find that the claimant has a well-founded fear of persecution based on her membership in a particular social group based on her gender as a woman, which is an immutable characteristic as defined in the Ward case.⁷ As her fear of persecution is based on belonging to a particular social group, her allegations form a nexus to a Convention ground.

[17]     According to Country Reports 2013, domestic violence against women, which includes rape and beatings, is “widespread” in the Republic of the Congo⁸ (US 27 Feb. 2014, 20). According to the report by APC and AZUR développement, the rate of domestic violence and incest across the country is [translation] “rather high,” and “two thirds of all cases of violence reported to the police and the gendarmerie concerns various forms of domestic violence” (ibid., 5, 7).⁹

[18]     The objective evidence further highlights that among the human rights violations committed in 2013 in the Republic of the Congo, the US Department of State’s Country Reports on Human Rights Practices for 2013 reports acts of discrimination and violence against women, including acts of domestic violence and sexual violence (US 27 Feb. 2014, 1). Amnesty International (AI) points out that [AI English version] “serious human rights violations” including cases of rape and other sexual violence occurred in 2014 in the Republic of the Congo (AI 2015). In correspondence sent to the Research Directorate, the Executive Director of AZUR développement, an association [in Brazzaville] located in nine departments in the country (AZUR développement n.d.) that aims to advance women’s rights and fights violence against women (APC and AZUR développement Mar. 2015, 4), states that,

[translation] [w]omen are subjected to various forms of violence daily, in particular, physical violence, such as beatings and injuries […]; sexual violence (rape, sexual harassment […]); [and] mental violence (insults, slander, verbal threats) (AZUR développement 14 Apr. 2015).

According to the Congolese Minister for the Promotion of Women and Women’s Integration into Development (Promotion de la femme et de l’Intégration de la femme au développement), women and children are subjected to sexual harassment and psychological violence in their family, at school, at work or in the street on a daily basis (Republic of the Congo 5 Mar. 2013, 3).¹⁰

[19]     Based on the claimant’ s history of abuse by the agent of harm, the influential position of the agent of harm, and the objective evidence, I find that there is a serious possibility of persecution if the claimant were to return to Congo-Brazzaville.

State Protection

[20]     I find that adequate state protection would not be reasonably forthcoming in this particular case. According to the objective evidence significant human rights issues in Congo­ Brazzaville include (…) violence against women and girls to which government negligence significantly contributed (…). The government took limited steps to prosecute or punish officials who committed abuses, and official impunity was a problem.¹¹

[21]     Though the objective evidence indicates that Congo-Brazzaville has some legislative framework for rape, Country Reports 2013 states that “the government [has] not effectively enforce[d] the law” regarding rape and sexual harassment (US 27 Feb. 2014, 20-21). According to that same source, a Congolese women’ s group stated that “the penalties for rape ranged from as little as several months’ imprisonment to rarely more than three years,” and local and international Non-Governmental Organizations (NGOs) have observed that “[f]ewer than 25 percent” of reported rape cases were prosecuted in 2013 (ibid., 20).¹²

[22]     The principal claimant testified that she never sought police protection given the high- level status of the agent of harm and that police would see this as a domestic matter, which is corroborated with the objective country evidence.

[23]     Given the objective evidence and the influential position of the agent of harm I find that there is no operationally effective state protection available to the claimant in this particular circumstance and that the presumption of state protection is rebutted.

Internal Flight Alternative (IFA)

[24]     Based on the evidence before me, I find that the principal claimant would face a serious possibility of persecution throughout the country given the profile of the agent of harm with his political connections and as a colonel in the army. Documentary evidence points that military members can act with impunity and that given the agent of harm’s position, resources at his disposal and motivation he demonstrated in seeking the principal claimant when she initially left him and then when she returned to the Congo- Brazzaville, I do not find that there is a viable IFA available to the principal claimant in this case.

CONCLUSION

[25]     Having considered all of the evidence, I find that the principal claimant is a Convention refugee as set out in section 96 of the Act. Her claim is therefore accepted.

[26]     I find that the minor claimant, [XXX] is neither a Convention refugee as laid out in section 96 of the Act, nor a person in need of protection as per section 97(1) of the Act and reject his claim.

(signed)           Anike Marcotte

August 20, 2020

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27.
² Exhibit 2.
³ Exhibit 4.
⁴ Exhibit 1.
⁵ Exhibit 6, and 7.
⁶ Exhibit 2.
⁷ Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85
⁸ Republic of the Congo and Congo-Brazzaville are the same country.
⁹ Exhibit 3, National Documentation Package (NDP, Republic of the Congo, April 30, 2020, Item 5.3, Response to Information Request (RIR) COG105144.FE.
¹⁰ Exhibit 3, NDP, Item 5.3 RIRCOG105144.FE.
¹¹ Exhibit 3, NDP, Item 2.1.
¹² Exhibit 3, NDP, Item 5.3 RIRCOG105144.FE.