VB9-07239

RAD File / Dossier de la SAR : VB9-07239 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Ottawa, ON Appel instruit à Date of decision January 11, 2021 Date de la décision Panel Philippe Rabot Tribunal Counsel for the person who is the subject of the appeal Lori O'Reilly Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Conseil du ministre N/A REASONS FOR DECISION OVERVIEW [1] The Appellant, XXXX XXXX XXXX, is a naturalized citizen of the Republic of South Africa, who was born in the Democratic Republic of Congo (DRC). However, the DRC no longer recognizes him as a citizen of that country. The Appellant alleged that he had been threatened by individuals who did not approve of him marrying a South African woman and thereby gaining citizenship in that country. The Refugee Protection Division (RPD) found the allegation credible but concluded that the Appellant had an Internal Flight Alternative (IFA) in both Port Elizabeth and Kimberley. The Appellant contends that he would not be safe anywhere in South Africa because he is regarded as a foreigner. DECISION [2] The appeal is allowed. The RPD's decision is set aside and substituted with a finding that the Appellant is a Convention refugee. The evidence supports the Appellant's assertion that he is no longer a citizen of the DRC and can therefore not be returned to that country. The Board's analysis on IFA is flawed. The evidence establishes, on a balance of probabilities, that there is a serious possibility that the Appellant, even if he were to relocate to Port Elizabeth or Kimberley, would become the target of violence because he is seen as a foreigner. BACKGROUND The chronology of events [3] In his Basis of Claim form (BOC), the Appellant stated that he arrived in South Africa in 1996.1 He married a South African woman. Therefore, he was able to acquire citizenship in that country. As a result, he is no longer recognized as a citizen of the DRC. [4] In XXXX 2017, the Appellant's wife was threatened by several individuals who demanded that she divorce him because he is a foreigner. Three months later, the same individuals attacked the Appellant with a firearm, and he sustained injuries. [5] The Appellant went to work in the United States in XXXX 2017. He secured employment on a XXXX XXXX. The XXXXofXXXX XXXX to which he travelled on that XXXX over the course of the following year were in Canada, Australia and New Zealand. [6] In XXXX 2018, the same individuals who had attacked him once again approached his wife and reiterated their demand that she divorce him. They threatened that he would be killed if she did not comply. Three months later, when the Appellant's XXXX once again arrived in Canada, he filed an asylum claim. Minister's Intervention [7] The Minister of Citizenship, Refugees and Immigration ('the Minister') intervened in the proceedings before the RPD.2 The Minister called into question the Appellant's credibility given that he did not file an asylum claim in any of the countries where his XXXX XXXX over the span of a nine-month period after he started working in the United States. It was also pointed out that he did not claim asylum when he entered Canada in XXXX 2016 to attend his sister's wedding, nor did he do so on a subsequent visit to the United States. [8] Finally, the Minister argued that the Appellant was a citizen of the DRC, in addition to South Africa, and could therefore be returned to the DRC. The Minister stated that there was no objective information that the Appellant's citizenship had been revoked. The RPD's decision [9] The RPD found that the Appellant was no longer recognized as a citizen of the DRC because that country does not permit dual citizenship and that the process to reacquire Congolese citizenship was complex.3 It acknowledged that the threats and attacks to which he and his wife were subjected in 2017-2018 was based on his ethnic origin. The RPD therefore concluded that the Appellant was at risk of being attacked by these same individuals if he were to return to Johannesburg, where he had been living before moving to the United States. However, the RPD determined that these same individuals would not represent a threat to the Appellant if he were to relocate to either Port Elizabeth or Kimberley. It dismissed the Appellant's argument that he would be targeted by other individuals because of his ethnic origin. The RPD relied on documentary evidence from American sources which suggested that xenophobic attacks in South Africa only occurred in low income areas as well as business centres. The RPD also stated that xenophobic violence in South Africa had declined in recent years. The Grounds of Appeal [10] The Appellant disputes the RPD's finding that he would be safe from xenophobic attacks in Port Elizabeth and Kimberley4. As new evidence, he has filed news articles and other documentation pertaining to xenophobic attacks that have occurred in various parts of South Africa in recent years, including in Port Elizabeth and Kimberley. ADMISSIBILITY OF THE NEW EVIDENCE The evidence presented by the Appellant is accepted [11] According to the law,5 I can only accept evidence that: i. arose after the RPD's decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [12] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.6 [13] For the most part, the news articles filed by the Appellant pertain to events that transpired after the RPD issued its decision. They come from credible and authoritative news sources and they are relevant for the purpose of addressing the issue of whether the RPD was correct in its assertion that xenophobic attacks have declined in recent years and do not occur in middle-class neighbourhoods. I am therefore admitting these news articles into this proceeding. [14] The balance of the new evidence consists of somewhat older news articles, as well as a 2015 report from the United Nations High Commissioner for Refugees (UNHCR). I am admitting these documents as well into this proceeding as I am not satisfied that the Appellant could reasonably have been expected to submit them before the RPD. From my review of the transcript of the RPD's hearing, it could not have been readily apparent to him at the time that the RPD would be unwilling to accept that xenophobia is widespread in South Africa. ANALYSIS [15] I am satisfied that the RPD was correct in its assessment that the Appellant would probably no longer be recognized by Congolese authorities as a citizen of the DRC. The National Documentation Package (NDP) for the DRC contains a Response to Information Request (RIR) prepared by the Research Directorate, of the Immigration and Refugee Board which confirms that Congolese nationality is lost automatically if a person acquires a foreign nationality.7 I am also satisfied that the RPD was correct in its assessment of the concern raised by the Minister about the Appellant's delay in claiming asylum. [16] However, I find that the RPD erred in its assessment of the risk faced by the Appellant stemming from his profile as a foreign-born African. It has too narrowly defined the extent to which xenophobic violence exists in South Africa. Furthermore, its conclusion that such violence has declined in recent years is misguided. At the present time, xenophobia against foreigners, particularly immigrants from other African countries, is rampant and widespread. [17] As a result, I cannot agree with the RPD's conclusion that the Appellant has an IFA in Port Elizabeth and Kimberley. The risk the Appellant faces in these two locations may not be the same as it is in Johannesburg or other parts of South Africa. However, he faces a serious possibility of persecution throughout South Africa due to the fact that he was not born in that country. The selection of these two locations as IFAs does not satisfy the first prong of the two-prong test set out in Rasaratnam.8 [18] The RPD's assessment of the Appellant's risk was based on two recent reports from the United States, one from the Overseas Security Advisory Council (OSAC)9 and the other from the Department of State, prepared during the tenure of the Trump administration.10 OSAC is a private-public partnership between large corporations and the United States government. The RPD ought to have considered other, perhaps more credible sources as well, before downplaying the possibility of the Appellant experiencing violence due to his ethnic origin. [19] A RIR prepared by the Immigration and Refugee Board in 2018,11 citing a researcher with the African Centre for Migration and Society, states that "hostility towards foreign nationals is pervasive in South Africa, and it results in 'cases of murder, injuries, threats of mob violence, looting and the destruction of residential property and businesses, as well as mass displacement'". The RIR is replete with examples of violence against foreigners and incitement to violence against them by public officials, including the police, and politicians. [20] The news articles provided by the Appellant lend support to this conclusion. A CNN report states that "casual xenophobia crosses racial lines and income brackets. And attacks on foreigners are so frequent, they don't always generate headlines". World Politics Review reports that "[w]hat is perhaps most worrying about the attacks is the degree to which anti-immigrant rhetoric has become a normal part of national political discourse" with even the President, Cyril Ramaphosa, "demanding the removal of immigrant-owned shops". A report published by News 24 comments that recent xenophobic attacks on foreigners "can be directly linked to calls by politicians to 'defend the sovereignty of the state' and confirms a dangerous emerging trend of xenophobic populism which leads to attacks on foreign nationals". [21] This evidence illustrates just how misguided the RPD was in finding that xenophobic violence is confined to the townships and business areas and that it has been on the decline in recent years. The available evidence states exactly the opposite: xenophobic violence is widespread throughout South Africa and it has increased in recent years. [22] Rasaratnam states that "the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exist". Based on my review of the evidence described above, I am not able to determine that the Appellant would not face a serious possibility of persecution anywhere in South Africa, let alone in the two locations identified as IFAs. It matters not that the individuals who threatened him and his wife are unlikely to look for him in those two locations. There is a serious possibility that the Appellant, by reason of being someone who is perceived to be a foreigner, would at some point become the victim of a racially motivated attack. CONCLUSION [23] The appeal is allowed. The two locations identified as IFAs by the RPD do not meet the first prong of the test set out in Rasaratnam. Therefore, the RPD's decision is set aside, and I substitute my own decision that the Appellant is a Convention refugee. (signed) Philippe Rabot Philippe Rabot January 11, 2021 Date 1 RPD-1, RPD Record, Appellant's Basis of Claim (BOC), at pages 14 to 28. 2 Ibid., Minister's Intervention, at pages 109 to 116. 3 Ibid., Reasons and decision, at pages 3 to 11. 4 P-2, Appeal Record, Appellant's Memorandum, at pages 1 to 20. 5 Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). 6 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FC 385. 7 RPD-1, National Documentation Package (NDP), DRC, 31 July 2019, tab 3.4: Whether a foreign national who acquired Congolese citizenship through marriage can regain Congolese nationality; if so, the procedure for regaining Congolese nationality; whether a child born outside the Democratic Republic of the Congo (DRC). Immigration and Refugee Board of Canada. 2 April 2012. COD104014.FE. 8 Rasaratnam v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 706. 9 RPD-1, NDP, South Africa, 29 March 2019, tab 7.5: South Africa. 2018 Crime and Safety Report. United States. Overseas Security Advisory Council. 25 April 2018. 10 Ibid., tab 2.1: South Africa. Country Reports on Human Rights Practices for 2018. United States. Department of State. 11 Ibid, tab 13.2: Treatment by society and authorities of black Africans of foreign origin who are citizens or permanent residents; state protection available (2017-April 2018). Immigration and Refugee Board of Canada. 30 April 2018. ZAF106092.E. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-07239 RAD.25.02 (January, 2020) Disponible en français 2 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 (January, 2020) Disponible en français