MB8-19250

RAD File No. / No de dossier de la SAR : MB8-19250; MB8-19251; MB8-19252 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 25, 2020 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Richard Wazana Conseil de la personne en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] Mr. XXXX and Ms. XXXX, you and your minor daughter, XXXX XXXX XXXX, are citizens of the Democratic Republic of the Congo (DRC). [2] Mr. XXXX, at the age of 18, and Ms. XXXX, at the age of 12, you fled the DRC. The two of you went to South Africa, but at different times, where you sought and obtained refugee status. You were married in South Africa and had your little girl there, although she did not become a citizen of that country. A few years later, you fled that country because you experienced xenophobic attacks there. [3] You submitted documents to the Refugee Protection Division1 (RPD). Mr. XXXX, you stated that you feared returning to live in the DRC while the country is still at war, that fighting can break out anytime and anywhere, and that in the eastern part of the country, specifically in Bukavu, you fear being forced to join rebel groups or to participate in a war that you do not understand. Ms. XXXX, you stated that you fear returning to live in the DRC because you could be the victim of sexual violence or forced to serve as a wife to the rebels.2 [4] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened in your claims for refugee protection, and submitted that you should be excluded under Article 1E of the Convention Relating to the Status of Refugees and that you are not credible.3 [5] The RPD found that there were insufficient grounds to exclude you under section 98 of the Immigration and Refugee Protection Act (IRPA), which makes explicit reference to Article 1E of the Convention. In addition, after analyzing the documentary evidence, it rejected your claims for refugee protection, finding that in Bukavu you would not be subjected to a serious possibility of persecution, to a danger of torture, to a risk to your lives or to a risk of cruel and unusual treatment or punishment.4 [6] On appeal, you provided documents5 and submitted that the RPD erred in rejecting your claims for refugee protection, first, because it disregarded the extensive documentary evidence regarding current living conditions in South Kivu, second, because it disregarded the documentary evidence regarding the persecution of women and girls in South Kivu, and lastly, because it found there has been a change in circumstances in the DRC while, according to the documentary evidence, this is not the case.6 [7] I find that the documents you provided on appeal do not constitute new evidence within the meaning of subsection 110(4) of the IRPA (I). After analyzing all the evidence, I find that your appeal must be allowed because there exists, in my opinion, compelling reasons arising out of previous persecution that justify your refusal to avail yourselves of the protection of the DRC (II). [8] In the following paragraphs, I will explain how I arrived at these conclusions. I. EVIDENCE PRESENTED ON APPEAL [9] On appeal, you provided documents regarding current conditions in the DRC, including some that are included in the April 30, 2018, version of the National Documentation Package (NDP) on the DRC. In my opinion, these documents do not constitute new evidence within the meaning of subsection 110(4) of the IRPA. In any event, I must take into account the documentation included in the most recent version of the NDP. II. ANALYSIS OF THE APPEAL [10] Regardless, in the matter of your appeal, the determinative issue is whether or not there are compelling reasons to justify your refusal to avail yourselves of the protection of the DRC. [11] I have conducted my own analysis of the record, notably by listening to the recording of the hearing before the RPD7 and taking into account the Chairperson's Guidelines 3 and 4.8 I find that the correctness standard of review must be applied.9 The RPD found that you would not be targeted by rebel groups today [12] In its decision, the RPD conducted a detailed analysis of the documentary evidence regarding current conditions in the eastern part of the DRC and, more specifically, in Bukavu. It concluded that if you had to return to live in Bukavu, you would not be targeted by rebel groups, whether in an attempt to force you to join them or to subject you to sexual abuse.10 On this issue, I find that the RPD did not err. The existence of compelling reasons for refusing to avail yourselves of the protection of the DRC [13] However, I am of the opinion that the RPD erred in finding that you did not present sufficient reasons to conclude there are compelling reasons for granting you protection, even though in the past you were the victims of persecution in the DRC, and this situation left you with psychological after-effects.11 [14] The "compelling reasons" exception deals with the special situation where a person who has been subjected to very serious persecution in the past, therefore, does not cease to be a refugee, even if fundamental changes have occurred in their country of origin. This exception reflects a more general humanitarian principle, and it is frequently recognized that a person who-or whose family-has suffered under atrocious forms of persecution should not be expected to repatriate.12 [15] When interpreting this exception included in the IRPA,13 the Federal Court of Appeal informs us that the Act requires Canadian authorities to give recognition of refugee status on humanitarian grounds to this special and limited category of persons, i.e., those who have suffered such appalling persecution that their experience alone is a compelling reason not to return them, even though they may no longer have any reason to fear further persecution.14 [16] During the hearing, the RPD did not ask any specific questions about the persecution that you had experienced in the DRC. This is despite your having provided information on this subject in your Basis of Claim Forms (BOC Form). Mr. XXXX, you stated that your mother was killed at the market in Bukavu by Hutu rebels, and that these rebels tried to force you and your brothers to join them as fighters, but that you managed to escape them. Ms. XXXX, you stated that your father was killed in your village by Hutu rebels, and that you and other members of your family were attacked by these rebels, but that thanks to one of them you managed to escape.15 The two of you then left the DRC and went to South Africa, where you each applied for and obtained refugee status. You never returned to the DRC. These are all points relevant to the analysis.16 [17] According to the case law, subsection 108(4) of the IRPA does not require persons to provide a psychological report as evidence when claiming compelling reasons for not availing themselves of the protection of a country in which they were previously the victim of violent or serious persecution. In fact, a person who raises compelling reasons within the meaning of subsection 108(4) of the IRPA does not have to establish psychological harm as a precondition to the success of their application.17 The real issue is whether by returning to live in the DRC, you would face the backdrop which you left many years ago, even if the principal characters may no longer be present or no longer be playing the same roles.18 [18] I am taking into account the fact that when you experienced the events that led you each to leave the DRC and go to South Africa to seek refugee protection, you were still young and had lost members of your family, who had been killed by rebels. I find that it is possible, even without psychological reports, to understand the inner pain associated with losing a mother or father. Even though you would not be targeted by the same rebel groups that persecuted you in the past, by returning to live in Bukavu, I find that the environment still present throughout the DRC would create such unfavourable conditions that it would be difficult for you to endure, given what you experienced in the past. The situation of your minor daughter [19] Now, regarding your minor daughter for whom you, Mr. XXXX, are the designated representative. [20] In its decision, the RPD analyzed her situation taking into account the Chairperson's Guideline 4, and found that it had not been established she would face gender-based persecution, or that she would be personally subjected to a risk to her life, or to a danger of torture, or to a risk of cruel and unusual treatment or punishment.19 On this issue, I find that the RPD did not err. [21] Your minor daughter is now six years old. She has never lived in the DRC and so has never been the victim of any form of persecution. That being said, in your BOC Form, Ms. XXXX, you state that on April 19, 2016, you and your minor daughter were the victims of a xenophobic attack in South Africa.20 This statement was repeated at the hearing before the RPD, even though your daughter did not give evidence herself. [22] The Chairperson's Guideline 3 informs the panel that when a child cannot express a subjective fear of persecution, more weight should be put on the objective rather than subjective elements of the refugee protection claim.21 This Guideline also informs us that in determining the procedure to follow when assessing a child's refugee protection claim, the RPD-but the same principle applies to the RAD-should give primary consideration to the best interests of the child.22 [23] Relying on these Guidelines, I find that under the circumstances I must refer to the preceding analysis regarding the compelling reasons that justify the refusal of you and your wife to avail yourselves of the protection of the DRC. It is clear to me that a six-year-old child cannot make the decision to not avail herself of the protection of the country of which she is a citizen. In fact and in law, it is her parents who will make this decision. Just as I previously found, Mr. XXXX and Ms. XXXX, that your refusal to avail yourselves of the protection of the DRC was justified, I find that your refusal to seek the protection of the DRC for your minor daughter is also justified. CONCLUSION [24] For these reasons, I set aside the RPD's determination and substitute the determination that, in my opinion, should have been made, namely, that there are compelling reasons for you, Mr. XXXX and Ms. XXXX, and for your minor daughter, XXXX XXXX XXXX, that justify your refusal to avail yourselves of the protection of the DRC. [25] Your appeal is allowed. (Signed by) Alain Bissonnette Me Alain Bissonnette February 25, 2020 Date IRB translation Original language: French 1 The documents that you submitted to the Refugee Protection Division (RPD) are reproduced at pages 314 to 472 of the digital version of the RPD record. 2 Your Basis of Claim Forms (BOC Form) and their amendments are reproduced at pages 18 to 62 of the digital version of the RPD record. 3 The Minister's intervention and the documents filed as evidence are reproduced at pages 295 to 310 of the digital version of the RPD record. 4 RPD Reasons and Decision, March 27, 2018, pages 7 to 17 of the digital version of the RPD record. 5 The documents that you submitted before the Refugee Appeal Division are reproduced at pages 18 to 53 of the digital version of the appeal record. 6 Appellants' memorandum, May 10, 2018, pages 56 to 80 of the digital version of the appeal record. 7 Recording of the hearing held before the RPD on March 20, 2018, 00:01 to 01:57:14. 8 Immigration and Refugee Board of Canada, Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, effective September 30, 1996; Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996. 9 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 10 RPD Reasons and Decision, supra endnote 4, paragraphs 15 to 32. 11 Ibid., paragraph 29. 12 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, December 2011, paragraph 136. 13 At the time, this exception was incorporated into subsection 2(3) of the Immigration Act. Today it is included in subsection 108(4) of the Immigration and Refugee Protection Act. 14 Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 FC 739 (CA), at page 748. 15 This information is reproduced at pages 28, 29, 45 and 46 of the digital version of the RPD record. 16 Umwizerwa v. Canada (Minister of Immigration, Refugees and Citizenship), No. IMM-3198-16, Shore, June 9, 2017, 2017 FC 564, paragraph 34. 17 Mwaura v. Canada (Minister of Citizenship and Immigration), No. IMM-7462-14, Brown, July 16, 2015, 2015 FC 874, paragraphs 13 to 25. 18 Ibid., paragraph 26, citing Suleiman v. Canada (Minister of Citizenship and Immigration), No. IMM-1439-03, Martineau, August 12, 2004, 2004 FC 1125, paragraph 19. 19 RPD Reasons and Decision, supra endnote 4, paragraph 30. 20 This information is reproduced at page 49 of the digital version of the RPD record. 21 The Chairperson's Guideline 3, supra endnote 8, under B. Evidentiary Issues. II. Assessing the Evidence. 22 Ibid., under A. Evidentiary Issues. I. General Principle. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / No de dossier de la SAR : MB8-19250; MB8-19251; MB8-19252 RAD.25.02 (April 4, 2019) Disponible en français 7 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 4, 2019) Disponible en français