MB6-03435

RPD File No. / N° de dossier de la SPR : MB6-03435 MB6-03436 MB6-03437 MB6-03438 Client ID No. / No ID client : XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Claimant(s) XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Demandeur(e)(s) d'asile Date(s) of hearing August 2, 2016 Date(s) de l'audience Place of hearing Montréal, Quebec Lieu de l'audience Date of decision and reasons August 5, 2016 Date de la décision et des motifs Panel Jacqueline Schoepfer Tribunal Counsel for the claimant(s) Me François Kasenda Kabemba Conseil(s) du (de la/des) demandeur(e)(s) d'asile Designated representative XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du (de la) ministre Reasons for Decision INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX (the principal claimant) is a citizen of the Democratic Republic of the Congo (DRC) and has permanent residence in South Africa. His three children, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX XXXX are all citizens of South Africa. They are claiming refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). [2] The panel appointed XXXX XXXX XXXX XXXX XXXX as the designated representative for his three minor children. SUMMARY OF ALLEGED FACTS [3] According to his Basis of Claim Form1 (BOC Form), the claimant alleges that he fled his country of origin in January 1998, after being persecuted by the Congolese authorities because he was the leader of the youth league of the Union pour la Démocratie et le Progrès Social (UDPS) [union for democracy and social progress] . He went to South Africa, where he was recognized as a refugee. He is married and has five children: three are with him in Canada, while the other two were born of an extra-marital relationship and their address is unknown. [4] The claimant alleges that in South Africa, he worked hard and trained to be a welder and then specialized in technology. He was thus able to open his own company. The claimant states that his economic stability was one of the reasons he was persecuted by the people of South Africa. [5] In May 2008, Africans of foreign origin were subject to multiple attacks by South Africans. The claimant had to hide in a church for a week to avoid being killed. He was nonetheless stabbed twice and suffered serious injuries. Some of his friends were killed and all of his belongings were destroyed. The claimant thought that it was an isolated incident, and he started again from scratch. [6] Nevertheless, on March 23, 2015, after Zulu king Goodwill Zwelithini publicly stated that all foreigners must leave South Africa, acts of xenophobia resumed, and his family was attacked in April 2015. During the attack, the claimant was shot in the leg, his daughter suffered a serious eye injury, and his son was wounded in the hand. His wife was also beaten. They were taken to the hospital by South African neighbours who had tried to protect them during the attack. [7] The claimant states that on April 17, 2016, he gave up his fight to remain in South Africa when xenophobic South Africans again attacked him as well as his pregnant wife; she had a miscarriage after being struck. His business was completely destroyed and his equipment was stolen. [8] The claimant reported these facts to the police, who insulted him and then told him that they would open a file but that there was no hope for him and it would be best if he left the country if he did not want to be killed. [9] On XXXX XXXX XXXX XXXX, the claimant left South Africa with his children and an American visa, and went to the United States. His wife, who was unable to obtain travel documents, remained in South Africa, where she lives in hiding with a pastor. [10] On XXXX XXXX XXXX XXXX, they appeared at the Canadian land border in Fort Erie, where they claimed refugee protection. DETERMINATION [11] The panel determines that the claimants are "Convention refugees." ANALYSIS Identity [12] The panel is satisfied as to the claimants' identity, given the Congolese passport for the principal claimant and his travel document issued by the South African authorities, as well as the South African passports and birth certificates for his children. These documents were seized by immigration authorities and copies were filed on the record.2 ANALYSIS OF EXCLUSION UNDER 1E for the principal claimant [13] Because the principal claimant was recognized as a refugee in South Africa and has permanent resident status there, on July 19, 2016, the panel notified the Minister of Public Safety (the Minister) in this matter of a possible ineligibility under paragraph 101(1)(d) of the IRPA, pursuant to paragraph 28(1)(c) of the Refugee Protection Division Rules (RPD Rules), and of a possible exclusion under Article 1E of the Convention, pursuant to rule 26 of the RPD Rules. [14] On July 26, 2016, the representative of the Minister of Immigration, Refugees and Citizenship Canada notified the RPD that the Minister would not intervene in this matter. [15] Given that the principal claimant established that he was granted refugee status in South Africa3 and considering the evidence of his permanent resident status in that country,4 the panel will examine the possibility of an exclusion under Article E of the Convention. [16] Article 1E of the Convention reads as follows: This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. [17] The panel refers to Zeng,5 in which the Federal Court of Appeal sets out the following criteria for determining whether Article 1E of the Convention should apply to a specific case: Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts. [18] Concerning the allegations of risk in the country described in exclusion 1E, the Federal Court has stated: Article 1E of the Convention arises when the claimant does not have a well-founded fear of persecution or a risk of harm under Article 97(1) in the Article 1E country.6 [19] During the hearing, the claimant recognized at the outset that he could return to South Africa and that he could study, work and access social services there. He explained that he obtained refugee status in that country in 2000 and then obtained a residence permit.7 [20] However, he denied that he has the same rights as South African citizens, in the sense that he would not receive the same protection. [21] On the one hand, he told the panel that renewing his permanent residence depended on an arbitrary decision by certain South African government officials. Some of his fellow citizens are still waiting to renew their residence card. He also explained that his wife did not obtain a travel document even though she, too, had been recognized as a Convention refugee in South Africa. He admitted, however, that his permanent resident status was valid until May 2018 and that he could return to South Africa. [22] On the other hand, he alleged that since 2008, violence and xenophobia against foreigners from other African countries have been common and that the authorities do not intervene. [23] The claimant explained that he was easily recognizable as a foreigner in South Africa because of his accent, which is very different from those of people born in that country. His children were also targeted as the children of foreigners even though they were born in the country. He described his Cape Town neighbourhood as having a mix of South African citizens and African migrants. During the riots in 2008 and 2015, his neighbourhood, like so many others in South Africa, was impacted by xenophobic violence. In 2008, he was seriously injured and sought refuge with his wife in a church for a week. [24] The claimant stated that although he has feared persecution since the violence against foreigners broke out in 2008, he continued to live in the country believing that things would calm down. Nevertheless, following the xenophobic statements made by the Zulu king in March 2015, abuses against foreigners resumed. He and his family were attacked twice more: in April 2015 and in April 2016. [25] The panel is of the opinion that the principal claimant's testimony about his experiences in South Africa was direct and spontaneous. [26] His allegations are supported by the evidence on the record, including the medical reports setting out the injuries he and his family suffered8 following the alleged attacks, as well as the testimonial letters.9 [27] The documentary evidence consulted10 also corroborates the fact that numerous xenophobic attacks and threats against African migrants and ethnic minorities occur in South Africa and result in death, injury, looting, destruction of homes and businesses, and displacement. The South African citizens who commit these attacks blame migrants for increased crime and the loss of jobs and housing. In 2008, serious riots claimed the lives of 69 people, mostly African migrants. [28] While South African authorities declared that they had taken measures to ensure this type of violence is not repeated, some sources state that between 350 and 900 people have been killed in xenophobic attacks since 2008, in addition to injuries, destruction of property and businesses, and arson.11 [29] These xenophobic attacks and threats occur in various parts of the country. In the first four months of 2014, further violence in seven provinces led to the displacement of more than 1,600 people.12 [30] In April and October 2015, more xenophobic riots against African migrants-the worst since 2008-led to at least five deaths and the displacement of thousands of people fleeing their homes. In April 2016, there were more xenophobic attacks in Cape Town, during which South African assailants destroyed businesses belonging to foreigners.13 [31] According to a director of the Forced Migration Studies Programme at the University of Wiwatersrand in Johannesburg, people of foreign origin living in South Africa are at considerable risk of being targeted for mistreatment by citizens and the police. Although people of Congolese origin have generally been less vulnerable than other migrant groups, particularly Zimbabweans and Mozambicans, they were nevertheless forced to move to escape the physical violence in May 2008 and still face risks in terms of their physical safety.14 [32] The sources consulted indicate that since the xenophobic comments of Zulu king Goodwill Zwelithini against foreigners in March 2015-comments supported by the son of President Jacob Zuma-attacks against foreigners have increased.15 [33] Therefore, based on the principal claimant's testimony and the objective documentary evidence on the record, his fears of persecution in South Africa are well founded. State protection [34] The claimant testified that he went to the police several times, but they did nothing to protect him and his family. He explained that the police told him that they would open a case and send an inspector. However, no police officer went to investigate despite his follow-ups with the authorities. He stated that the police told him that he would be better off returning to his country. [35] The documentary evidence consulted indicates that, in theory, legally registered foreigners face no formal obstacles to accessing state protection, but in practice, they may encounter informal discrimination when utilizing the courts, the police or other forms of protection. According to reports, despite some symbolic efforts to promote tolerance, there has been very little action at the local level by authorities to ensure that non-nationals in South Africa are protected against xenophobia and other forms of violence. There is some research that suggests that complaints to the authorities from people of a foreign background who express their concerns about being victims of violence are not taken as seriously as complaints from people born in South Africa.16 [36] Several sources indicate that the perpetrators of this violence enjoy relative impunity.17 There was reportedly only one conviction stemming from the 2008 riots. The government sometimes responded effectively to xenophobic incidents, sending police patrols to affected neighbourhoods, but more often the response was slow and insufficient.18 Amnesty International is concerned by the government's failure to protect the life and physical integrity of refugees and others in need of international protection.19 [37] Consequently, the panel concludes that the claimant discharged his burden of establishing, on a balance of probabilities, that he cannot avail himself of adequate state protection in his particular case. Internal flight alternative (IFA) [38] The panel questioned the principal claimant about the possibility of settling in Johannesburg or even in a smaller city. The claimant replied in the negative, arguing that xenophobic violence occurs throughout the country. [39] Considering the above-mentioned documentary evidence reporting on the xenophobic violence and threatening acts committed throughout the country, the panel finds that there is no IFA for the principal claimant. Conclusion on exclusion under 1E [40] The panel concludes that the principal claimant discharged his burden of establishing that there is more than a mere possibility that he would be persecuted in South Africa by reason of his ethnicity, his nationality and his membership in the particular social group of migrants from other African countries. [41] Consequently, the panel determines that Article 1E of the Convention does not apply in this particular case because the principal claimant has a well-founded fear of persecution in the country described in Article 1E of the Convention. Analysis of the risk for the children in South Africa [42] The same risk analysis applies to the principal claimant's children. Although they were born in South Africa and have South African citizenship, they are still identified as and perceived to be the children of foreigners. Based on the principal claimant's testimony, his children were targeted in April 2015 by South African assailants, and two of them were seriously injured. The principal claimant testified that his children are still traumatized by that incident. Furthermore, they face constant discrimination at school, where they are told by their classmates that they should return to their country. [43] After listening to the principal claimant's testimony and considering the evidence on the record, the panel concludes that there is more than a mere possibility that the principal claimant's children would be persecuted in South Africa by reason of their Congolese ethnicity and their membership in the particular social group of children of migrants from other African countries. [44] The same analysis of state protection and an IFA applies to the children. The panel concludes that the principal claimant's children have a well-founded fear of persecution in South Africa. ANALYSIS OF RISKS IN THE DRC [45] The claimant testified openly and spontaneously about the problems he encountered in the DRC and his involvement in the UDPS. There were no contradictions, omissions or implausibilities casting doubt on his story. [46] He explained that he has never returned to the DRC since he fled the country in 1998 and that he obtained refugee status in South Africa. He explained that he continues to be an activist within the diaspora. Moreover, he has participated in demonstrations, notably in December 2011 to contest the election results. He later learned that his name was on a list of people being targeted by the Kabila regime. He stated that he is convinced that if he returned to the DRC, he and his family would be persecuted or killed. [47] His membership in the UDPS is corroborated by a letter signed by the UDPS secretary general and by his membership card.20 He also presented an attestation from the deputy representative of the UDPS in Canada confirming that the claimant has been a party member since 1992 and is registered with the UDPS section in Ottawa.21 [48] The documentary evidence on the record22 corroborates the recurrent oppression of political opponents in the DRC. Members of opposition parties are subject to arrest, imprisonment, harassment and threats. According to Amnesty International, political opposition supporters who attended demonstrations calling for political dialogue and protesting against attempts to amend the Constitution were arbitrarily arrested and ill-treated. [49] The documentary evidence filed23 also indicates that certain Congolese in South Africa who repatriated have been detained and mistreated, especially supporters of Étienne Thisekedi, the leader of the UDPS. [50] Therefore, considering that the principal claimant was previously recognized as a refugee in 2000 by reason of his political involvement within the UDPS; considering that he has not returned to his country since 1998; and considering the current political situation in the DRC and, in particular the serious human rights problems, such as extrajudicial killings, disappearances and arbitrary arrests carried out by security forces, as reported in the evidence on the record, the panel concludes that the principal claimant has discharged his burden of establishing a serious possibility of persecution by reason of his political opinion. [51] The sources consulted24 indicate that there is no independent and effective judicial authority in the DRC. Despite some modest improvements, impunity for human rights abusers remained a severe problem within the security services. Authorities did not prosecute or punish many of the abusers. [52] Consequently, in view of his profile and the objective documentary evidence, the panel concludes that there is no state protection available in his particular case since the agent of persecution is the state itself. [53] An internal flight alternative is not an option in this case given that the panel is satisfied that the agent of persecution is the state and that its influence extends throughout the DRC. [54] Given that the principal claimant faces a serious possibility of persecution in the DRC, the panel finds that his children, who could obtain Congolese citizenship by filiation, are also "Convention refugees" by reason of their particular social group, i.e., family. CONCLUSION [55] Having considered the evidence as a whole, the panel determines that section 96 of the IRPA applies in the claimants' case. They are therefore "Convention refugees," and their refugee protection claim is allowed. Jacqueline Schoepfer Jacqueline Schoepfer August 5, 2016 Date IRB translation Original language: French 1 Document 1 - Basis of Claim Form (BOC Form). 2 Document 2 - Information package provided by the Canada Border Services Agency or Citizenship and Immigration Canada. 3 Document 4, Exhibit C-7: Card and refugee card status in South Africa. 4 Idem. 5 Canada (Minister of Citizenship and Immigration) v. Zeng; 2010 FCA 118, at paragraph 28. 6 Omorogie v. Canada (Citizenship and Immigration), 2015 FC 1255, paragraph 61. 7 Document 4 - Exhibit C-7. 8 Document 4 - Exhibits C-16. 9 Document 4 - Exhibits C-18. 10 Document 3 - National Documentation Package on South Africa, May 13, 2016, Tab 2.1: South Africa, Country Reports on Human Rights Practices for 2015. 11 Document 3 - National Documentation Package on South Africa, May 13, 2016, Tab 2.1: South Africa, Country Reports on Human Rights Practices for 2015. 12 Document 3 - National Documentation Package on South Africa, May 13, 2016, Tab 2.2: South Africa Amnesty International Report 2014/2015. 13 Document 4 - Exhibit C-20: Article: Xenophobie Attacks. 14 Document 3 - National Documentation Package on South Africa, May 13, 2016, Tab 13.2: Wether South Africa Citizens of congolese origin experience. 15 Document 3 - Exhibits C-26: E-News, and C-27: News24. 16 Document 3 - National Documentation Package on South Africa, May 13, 2016, Tab 13.2: ZAF103363.E, Immigration and Refugee Board of Canada, March 4, 2010. 17 Document 3 - National Documentation Package on South Africa, May 13, 2016, Tab 2.1: South Africa, Country Reports on Human Rights Practices for 2015. 18 Document 3 - National Documentation Package on South Africa, May 13, 2016, Tab 2.1: South Africa, Country Reports on Human Rights Practices for 2015. 19 Document 3 - National Documentation Package on South Africa, May 13, 2016, Tab 2.2: South Africa Amnesty International Report 2014/15: The State of the Worlds Human Rights, Amnesty International, 2015. 20 Document 4 - Exhibits C-9: Attestation from UDPS Canada, and C-10: UDPS membership card. 21 Document 4 - Exhibits C-9 and C-10. 22 Document 3 - National Documentation Package on the Democratic Republic of the Congo, April 19, 2016, Tab 2.1: Democratic Republic of the Congo Country Reports on Human Rights Practices for 2015; Tab 4.2: Eastern Congo: Why Stabilisation Failed Africa Briefing; Tab 4.15: DR Congo: Deadly Crackdown on Protests, Human Rights Watch, January 24, 2015; and Tab 4.16: DRC Protests: The Government's Election Law Must be Revised. 23 Document 4 - Exhibit C-22: RIR ZZZ104422.FE. 24 Document 3 - National Documentation Package on the Democratic Republic of the Congo, April 19, 2016, Tab 2.1: Democratic Republic of the Congo Country Reports on Human Rights Practices for 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 10 Immigration and Refugee Board of Canada Refugee Protection Division Commission de l'immigration et du statut de réfugié du Canada Section de la protection des réfugiés RPD.29.01 (December 15, 2012) RPD File No. / N° de dossier de la SPR : MB6-03435 MB6-03436 MB6-03437 MB6-03438