MC0-02673

RAD File No. / No de dossier de la SAR : MC0-02673 MC0-02674 / MC0-02675 / MC0-02676 MC0-02677 / MC0-02678 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 1, 2021 Date de la décision Panel Me Agnès Connat Tribunal Counsel for the persons who are the subject of the appeal Zacharie Kalieu Njomkam Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (male appellant) and XXXX XXXX (female appellant) are citizens of the Democratic Republic of the Congo (DRC). They are accompanied by their minor children, citizens of the DRC, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (appellant children). [2] The appellants fear the DRC authorities because of the male appellant's activism within the Union pour la Démocratie et le Progrès Social (UDPS) [union for democracy and social progress]. The female appellant's claim and the children's claims are based on the male appellant's claim. [3] The Refugee Protection Division (RPD) found that the appellants are not credible due to numerous omissions and inconsistencies with respect to the male appellant's activities within the UDPS and their presence in the DRC between 2016 and 2018. It is of the view that the female appellant failed to establish that simply being a Congolese woman is sufficient to establish a serious possibility of persecution in the DRC. [4] The appellants are alleging that the RPD erred in its assessment of their credibility. They submit that they did not have to mention everything in their Basis of Claim Form (BOC Form), that they could do so at the hearing, that the RPD erred in concluding that the fear of persecution in 2011 is not credible because the male appellant was entering and exiting the DRC but always took precautions, that he did not understand the RPD's question about his activities in the UDPS, and that the RPD did not consider all the evidence on the record, including the evidence that establishes their presence in the DRC in 2016. The appellants claim that the RPD erred by not believing that the female appellant was raped. [5] The determinative issue for the Refugee Appeal Division (RAD) is whether the RPD erred in its analysis of the appellants' credibility and in the analysis of risk of persecution on a Convention ground. DETERMINATION [6] The appeal is allowed. I substitute my own determination that the appellants are Convention refugees. NEW EVIDENCE [7] The appellants submit the following new evidence: report cards for the child XXXX XXXX XXXXsix individual civil status records for each of the appellants, a voter's card for each of the appellants who have reached the age of majority, and the male appellant's UDPS membership card. [8] The appellants submit that this evidence was not available on the date of the hearing and that these documents are necessary to establish that they were present in the DRC between 2016 and 2018. The report cards are accepted [9] The RAD may allow new evidence if this evidence arose after the rejection of the claim or if it was not reasonably available before the RPD made its decision, or, if it was, the appellants could not reasonably have been expected in the circumstances to have presented it at the time of the rejection.1 If the new evidence meets at least one of these requirements, the appellants must also establish that it meets the three case law criteria of credibility, newness and relevance.2 The civil status records [10] The records are not new evidence and are part of the evidence before the RPD, namely that of the male appellant,3 the female appellant,4 XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.5 Voter and Union pour la Démocratie et le Progrès Social cards [11] The voter cards, i.e., the male appellant's card6 and the female appellant's card,7 are not new evidence and are part of the evidence before the RPD. [12] The UDPS card is not new evidence, as it is in the RPD record.8 The child XXXX report cards [13] The report cards comply with the third criterion of 110(4) and meet the jurisprudential tests. [14] Regarding the first criterion, the documents are dated January 31, 2020; however, they are duplicate documents for the 2016-2017 and 2017-2018 school years, or before the claim was rejected on January 3, 2020. With respect to the second criterion, the appellants do not explain how they were not reasonably available before the RPD made its decision. I do not see why on the face of the document either. For the third criterion, the appellants submit that this evidence establishes that they were present in the DRC between 2016 and 2018. In the circumstances at the time of the rejection, the appellants could not have known that the RPD would reject their claim on the basis that they were not present in the DRC between 2016 and 2018. The evidence meets the third criterion of 110(4). [15] On the face of it, these documents are credible. They include the school seal and a signature. The report cards are relevant as they show that one of the XXXX XXXX children attended the XXXX school in 2016-2017 and 2017-2018, the period in dispute. The report cards are capable of proving or disproving a fact relevant to the claim, namely that the appellants were in the DRC at the time. The evidence is truly new since there is no other document on file with the RPD that can corroborate where the child went to school during the years at issue. [16] The report cards are accepted. The appellants are not requesting an oral hearing [17] The appellants are not asking the RAD to hold an oral hearing. The admissible evidence is not central to my decision with respect to the appellants' refugee protection claims and cannot justify allowing or rejecting their claims. At least one of the criteria in subsection 110(6) of the Immigration and Refugee Protection Act (IRPA) has not been met, and I cannot hold an oral hearing. ANALYSIS [18] My role is to examine all of the evidence, which includes listening to the hearing, and to determine whether the RPD's decision is correct.9 [19] On January 11, 2021, the RAD advised the appellants of its intention to deal with the changed circumstances in the DRC, the "compelling reasons" exception, state protection and the possibility of an internal flight alternative (IFA) in Kinshasa, Boma or Lubumbashi. It also advised them of its intention to use the most recent version of the National Documentation Package (NDP) on the DRC, updated on May 11, 2020. It shared with them a recent document from the Office français de protection des réfugiés et apatrides10 (OFPRA) [French office for the protection of refugees and stateless persons] that it plans to use to analyze the political situation in the DRC. The appellants presented new submissions. [20] The RPD based its conclusions on findings and inconsistencies between the appellants' testimony at the hearing and their BOC Forms, so here is a brief recap of the allegations in appellants' BOC Forms. The male appellant told his story in his BOC Form and in a very detailed handwritten account:11 - After the Kabila victory in 2011 against UDPS President Étienne Tshisekedi, the male appellant participated in protests that were bloodily suppressed. - Following these events, he left for Angola. - In 2016, back in the DRC and after the elections, the male appellant participated in marches organized by his church. - After a march on December 19, 2017, one on December 31, 2017, and another on January 21, 2018, the male appellant was identified by ANR agents. - ANR agents came to get him twice. On February 14, 2018, they stabbed his wife. He then came out of hiding and was arrested. - He was jailed for six days in ANR premises, then in the Makala prison for four months. - His father managed to get him released through bribery. - The appellants fled the country in XXXX 2018. - The male appellant alleges that his children are at risk of harm if they return to the DRC and that his daughter will be at even greater risk simply because she is a girl, because of how women are treated in the DRC. [21] In her BOC Form, the female appellant alleges the following: - They were threatened because her husband supports UDPS policy. She was stabbed with a knife when they came for him. - She states that they can rape and kill her because of her husband. - She fears being raped simply because she is a woman, because rape is not punished, and because even married women are not protected. [22] The appellant children's claims for refugee protection are based on their parents' claims. The appellants are credible in their allegations against the Democratic Republic of the Congo authorities between 2016 and 2018 The membership and role of the male appellant in the Union pour la Démocratie et le Progrès Social [23] The RPD points out that the male appellant failed to mention spontaneously that he was a XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and that he did not mention that he organized political activities. The RPD does not accept his explanation: [translation] "In my story, I didn't say that; we didn't want to mention it because we wanted to be specific." It considers that it is reasonable to think that he would have mentioned it if he had actually worked in the UDPS XXXX XXXX XXXX XXXX, as it is a central element of his claim and it is neither consistent nor credible that he did not. It adds that he testified that he had a business between 2016 and 2018 but never mentioned that he was a UDPS activist until it was time to explain why he would be targeted. [24] The appellants submit that when the RPD asked him what his activities were in the DRC between 2016 and 2018 and he replied that he was doing business without ever mentioning any activities of a political nature, it should have taken into account that he does not have much education, that he did not understand what the question implied, and that if the question had been what he was doing in the party, he would have stated it spontaneously. [25] The RPD erred in concluding that omitting the fact that the male appellant was involved in organizing the protests undermines his credibility. The male appellant did not omit this information, because the RPD's question was not clear. The fact that the male appellant had a specific role in the UDPS is not central to the claim. [26] I accept the appellants' explanation. When the RPD first asked about the male appellant's activities, it did not make it clear that it was referring to the male appellant's political activities. At the hearing, the RPD first asked the male appellant what he was doing in his country before he left for Angola, to which he replied that he was in business,12 and then he described the type of business. The RPD's question was not specific enough. If it wanted to know more about the male appellant's activities in relation to the UDPS, it should have asked him directly. Then it asked him why General Kabila would want to target him if he was just doing business. The male appellant replied that everyone was walking, that he left for Angola because of the tension in the country and the growing insecurity for UDPS members who were demanding the victory (of Tshisekedi). When the RPD pointed out to him that the UDPS was the second party in the country, and what he had done to have been targeted, the male appellant stated that he was not doing anything big, but was a press officer, going from cell to cell to inform the members.13 [27] The appellants submit that it is unreasonable to mention everything in the BOC Form, whereas at the hearing they can further explain the events experienced and even correct them. They submit Basseghi, Kouroch v. MCI, without specifying the reference, "the [BOC Form] is supposed to be a brief recitation of the [claimant's] claim, not a documentation of his whole case." The appellants, regarding the lack of voluntary statements on activities in the UDPS between 2016 and 2018, submit that when the question was put to the male appellant, the RPD asked him what he did for work and he did not understand that the question meant work in politics or in his party. [28] In Basseghi, the Court also stated that BOC Forms must contain everything that is relevant and material to a refugee protection claim. In a recent decision, the Federal Court clarified that it is risky for an appellant not to disclose in their initial account all of the facts and details that are important to a claim for refugee protection. An explanation will then be required for these omissions.14 The Federal Court also clarified that a claimant may amend their BOC Form without undermining their credibility if they limit themselves to minor or incidental details of the story that form the basis of the claim, and thus do not change the substance of the claim.15 [29] The RPD erred in finding that since the male appellant did not mention that he handled press relations for the UDPS, this undermines the appellants' credibility. The importance of this information is relative. It is relevant to the analysis of the motivation of the agents of persecution, but does not constitute the substance of the appellants' claim. The male appellant alleges that he was targeted by the DRC authorities following two protests in 2017 and 2018 and not that he was targeted because of his activities as a press or communications officer for the UDPS. Whether or not the male appellant was a press officer does not change the fact that he alleges that he was arrested, jailed and tortured because he was identified by the ANR following the protests. He could clarify this information at the hearing. [30] The RPD erred in not explaining in its reasons why it did not give weight to the male appellant's UDPS membership card. The card issued on November 5, 2010, is on its face authentic, has a photo of the male appellant, a stamp and a signature. The expiry date on the card is December 31, 2015. The male appellant was indeed a member of the UDPS as of 2010. [31] I am of the opinion that it would have been better if the appellants had included or at least amended their BOC Forms to state that the male appellant had specific duties in organizing the protests. However, in this case, I do not draw a negative inference about the appellants' overall credibility from the failure to mention the male appellant's specific duties in his BOC Form. The heart of the male appellant's claim is that he was targeted for participating in the 2017 and 2018 protests, not because he was a press officer. He could complete the information on his involvement with the UDPS at the hearing and the RPD's question was not specific enough. The presence of the appellants in Angola between 2011 and 2016 [32] The RPD was of the opinion that the allegation of political persecution in 2011 is inconsistent, as the appellants were settled in Angola at that time, moving in and out of the country freely to conduct business. It pointed out that they claim they were afraid in the DRC, whereas the evidence shows that they went there several times a year to do business, which contradicts their allegations of fear of persecution in the DRC. [33] The appellants submit that it was unreasonable for the RPD to base itself on the fact that the male appellant entered and left the DRC freely without explaining or demonstrating that it was virtually impossible to leave the DRC when he was persecuted or feared persecution there. They submit that the male appellant always took precautions whenever he went to the DRC to avoid being noticed. They point out that the RPD could question the truthfulness of the male appellant's allegations without explaining them. The appellants submit that fear of a place does not mean that one cannot go there even if one takes precautions to remain unnoticed and that the RPD did not demonstrate this. [34] The RPD correctly found that appellants lived in Angola between 2011 and 2016 and continued to move in and out of the country, which undermines their credibility with respect to the allegations from that period. The fact that the male appellant continued to come and go between Angola and the DRC, while alleging that he already had problems with the authorities, is conduct that may cast doubt on his subjective fear of persecution. However, the border between the two countries is approximately 2,500 km long,16 and the documentary evidence does not allow me to confirm whether it is possible to cross it illegally and easily, and the appellants have not filed any. They stated that at that time, they were going in and out of the country to do business and that they were taking precautions. However, the period between 2011 and 2016 is not central to appellants' allegations and is not sufficient. Their conduct during this period does not permit a negative inference to be drawn about the credibility of the allegations at the heart of their claim, namely what happened between 2016 and 2018. [35] What happened between 2011 and 2016 is not the focus of the claim since the male appellant alleges that his problems are related to his participation in the 2017 and 2018 protests. I do not draw a negative inference about appellants' credibility in relation to concerns about the appellants' subjective fear between 2011 and 2016. Place of residence of the appellants [36] The RPD noted that the appellants allege that they lived in Angola between 2011 and 2016, whereas in his Schedule A, the male appellant states that he lived in Angola until January 2015 and the female appellant in turn indicates that she lived in Kinshasa, DRC, from 2009 to June 2018. The RPD was of the view that, while errors can be expected in responses on some forms, in this case they are significant errors as to the precise time the appellants were in the DRC. It did not accept their explanation that they made a mistake and were under pressure at the time of writing the documents. The RPD pointed out that the appellants assert that they did not have identity documents when they left the DRC in June 2018, whereas the evidence shows that all the appellants obtained identity documents in April 2018 and after. It added that it doubts that the appellants lived in the DRC at the time of the alleged events between 2016 and 2018. [37] The appellants submit that these inconsistencies are due to the pressure at the border, that they were afraid of being turned away, arrested or sent to jail like in the United States and that he simply wanted to fill out the document and enter Canada. They add that in its decision, at paragraph 38, the RPD implicitly acknowledges that such errors are possible and that the RPD [translation] "does not demonstrate that it is possible not to be absolutely wrong about important elements in a claim and why one cannot be wrong." [38] The RPD correctly concluded that there are inconsistencies with respect to the appellants' residency between 2011 and 2016. However, fear between 2011 and 2016 is not central to the appellants' allegations. I draw no negative inference from these inconsistencies in their allegations between 2016 and 2018. [39] In her Schedule A, the female appellant states that she lived in Kinshasa between XXXX 2009 and XXXX 2018.17 For his part, the male appellant states that he lived in Kinshasa between XXXX 2009 and XXXX 2011, then between XXXX 2011 and XXXX 2015 in Luanda, Angola, and between XXXX 2015 and XXXX 2018 in Kinshasa. [40] With respect to making credibility findings based on the port of entry (POE) forms and notes, the jurisprudence cautions against relying on inconsistencies in testimony between the POE notes and later testimony and documents, unless those inconsistencies are about "crucial elements" of the claim.18 [41] In this case, the contradictions do not concern a central element of the appellants' claim. Where they lived between 2011 and 2016 is not crucial to their claim. In contrast, their place of residence at the time of the alleged events, in 2017 and 2018, is-from the time they returned to Kinshasa in 2016 until their departure in 2018, when the male appellant was sought by the authorities following his participation in the 2017 and 2018 protests. At that time, the male appellant's form indicates that he was living in Kinshasa, as does the female appellant's. I see no contradiction and draw no negative inference about the appellants' credibility in relation to their main allegations. The appellants' journey from the Democratic Republic of the Congo to the United States [42] The RPD considered that there were many questions and doubts about the clandestine travel between the DRC and the United States. [43] The appellants submit that the RPD doubts their testimony about the clandestine trip to the United States without [translation] "showing otherwise." [44] The RPD erred. It appeared to draw a negative inference about the appellants' overall credibility regarding the circumstances of their travel between the DRC and the United States, without actually doing so. Furthermore, it referred to this trip in its reasons by analyzing the issue of the appellants' identity. It considered that it was [translation] "surprising, even unbelievable" that a ship's captain would agree to transport two adults and four children clandestinely across the Atlantic Ocean without any identity documents. In reaching this conclusion of implausibility, it did not rely on any documentary evidence, nor on its specialized knowledge. [45] According to Valtchev, plausibility findings should be made only in the clearest of cases.19 The conditions under which refugee protection claimants arrive at Canadian borders are often very difficult, beyond what is imaginable, with or without children. They may have to cross several countries, in extremely difficult conditions, risking their lives. In this case, the appellants gave details of this crossing at the hearing and the RPD's finding of implausibility is not clear to me. I draw no negative inference about the appellants' credibility on the basis of their journey. The appellants' presence in the Democratic Republic of the Congo between 2016 and 2018 [46] The RPD does not believe the allegations of persecution by the DRC authorities simply because the appellants belong to the opposition party. It does not believe that the appellants were living in the DRC between 2016 and 2018 due to the absence of a reasonable explanation and evidence. It is of the opinion that there were numerous omissions and inconsistencies on elements central to their refugee protection claim, namely the male appellant's activities in the UDPS and their presence in the DRC, particularly between 2016 and 2018. The RPD notes that the male appellant had no evidence other than his voter registration card to show that they lived in the DRC between 2016 and 2018. It considers that if they were living in the DRC between 2016 and 2018, they would be able to provide evidence of their presence in the DRC, particularly as the child David was attending school at that time. [47] The appellants submit that the male appellant testified to show that between 2016 and 2018, he lived with his family in the DRC, and that the RPD's conclusion is subjective, without demonstration or explanation, as there is information in the RPD record showing the male appellant's presence in the DRC between 2016 and 2018, such as his and the family members' identification records and the copies of his and the female appellant's voter cards. They submit that the records clearly state the place of residence of the male appellant and his family members in Kinshasa. They point out that the records of the children XXXX and XXXX establish that they were born in Kinshasa in March 2017 and that the adult appellants' voter cards were issued in 2016 when they were in the Congo. The appellants submit that these exhibits were in the RPD record and that it did not assess them. The appellants claim that their son XXXX attended the XXXX school in Kinshasa in 2016-2017. [48] The RPD erred. The appellants were in the DRC between 2016 and 2018. [49] I do not agree with the RPD that there are sufficient omissions and inconsistencies to conclude that the appellants were not in the DRC between 2016 and 2018. I do not see any. The inconsistencies or omissions analyzed above in these reasons relate to the period between 2011 and 2016. They are not central to the refugee protection claim as the appellants' alleged fear of the Congolese authorities follows the events of 2017 and 2018 in the DRC. [50] The date of issuance of the male appellant's voter cards is the same for both, June 10, 2017. The RPD did not ask any questions about how the appellants obtained these cards. By asking the question, it could have better determined whether or not the appellants were in the DRC at the time of their card application. However, it asked them why they had not travelled with them, to which they replied that the appellant's father had them and they did not have time to take them. This explanation is adequate. The voter cards confirm that the appellants were in the DRC around their date of issue in June 2017. [51] The RPD asked the appellants how they obtained the birth records, to which the appellants responded at the municipality. The records are dated April 12, 2018, except for the female appellant's card, which is dated April 13, 2018. These documents do not corroborate that the appellants were in Kinshasa all the time between 2016 and 2018, but that the female appellant, at least, was there in March 2017 for the birth of XXXX and XXXX. [52] The appellants filed the report cards of the child XXXX as new evidence. They are copies dated January 21, 2020. The documents appear to be authentic, with stamps and signatures. I can see a complete picture of the child's academic performance and especially the mention of the 2016-2017 and 2017-2018 school years. The report cards establish that the appellant child XXXX was in Kinshasa at that time. This does not establish that his parents were. [53] The male appellant testified20 about the events leading up to and following his arrest. His testimony is consistent with his BOC Form on the allegations central to his claim, namely the three protests, his arrest, his incarceration and his release. I see no contradiction or inconsistency. The RPD based its decision on inconsistencies, contradictions and omissions that were not determinative, and on matters peripheral to the allegations central to the refugee protection claim. [54] In conclusion, there is no basis for me to conclude that the appellants were not in Kinshasa between 2016 and 2018. They stated that they were in their POE forms, they alleged it in their BOC Forms as well as during their testimony and there are no material inconsistencies, omissions or contradictions that lead me to conclude otherwise. The appellants were in Kinshasa between 2016 and 2018. [55] After analyzing the evidence, as well as listening to the hearing, I conclude that the appellants' allegations regarding the events that occurred in 2017 and 2018 in the DRC are credible. The male appellant is a political opponent of the Kabila government. He was arrested and jailed as a result of his activism. The female appellant was injured while authorities were looking for her husband. The changing circumstances in the Democratic Republic of the Congo [56] According to the RPD, it is the leader of the UDPS who is now in power and although the evidence states that former President Kabila is still very powerful in the DRC, the political persecution of UDPS members by their own ruling party has not been demonstrated. It noted that since the male appellant has not shown that he was targeted by the ruling party merely because he was targeted in 2011 or 2018 by the DRC authorities, it reached the same conclusion for the other appellants, including the female appellant, although it pointed out that the female appellant alleges that she was stabbed and sexually assaulted during the search for her husband at their home in February 2018. [57] In their additional memorandum, the appellants submit that despite the change in head of state with the election of Félix Tshisekedi of the UDPS, President Kabila's system is still there, and that he holds the real power after the victory in the legislative and senate elections, both at the provincial and national levels. They state that according to the OFPRA report communicated by the RAD, despite the openness towards the opposition, the Tshisekedi regime hinders the freedom of expression of democratic freedoms, and that this includes UDPS activists who are against the alliance between Tshisekedi and the former regime. They submit that they will continue to be involved in political activities to defend their ideology, rights and freedoms. Circumstances in the Democratic Republic of the Congo have not changed in a sustainable, effective and real way [58] A change in circumstances in a country's situation is relevant to the extent that there is a reasonable and objectively foreseeable possibility that refugee protection claimants will be persecuted in the future if they return. This change must be sustainable, effective and real. [59] Past persecution does not necessarily mean that the appellants would face a serious possibility of persecution in the future if they returned to the DRC. The question now is whether they have serious grounds to fear persecution in the future because of the male appellant's political opinion, considering the change of government in the DRC since their departure in XXXX 2018. [60] The documentary evidence is contradictory. On the one hand, there have been positive changes in the DRC since the December 2018 elections.21 Newly elected President Félix Tshisekedi has formed an alliance with outgoing President Joseph Kabila. According to Human Rights Watch, political repression has allegedly decreased under the new government. Some political opponents have been released or had their sentences remitted and many activists and politicians who were in exile have been allowed to return to the DRC.22 One observer states he was not aware of UDPS members being harassed because of their opposition to President Tshisekedi.23 [61] On the other hand, former President Kabila still occupies the political, economic and security spheres. Sources report that he allegedly still controls the government architecture. Other sources indicate that Joseph Kabila's party (Front Commun pour le Congo (FCC) [common front for the Congo]) holds "approximately two thirds of the seats in the National Assembly and oversees 42 of a total of 65 minister portfolios that make up the Tshisekedi government."24 Protests are repressed by the police and repression is currently aimed at the members of citizen movements.25 [62] The OFPRA report disclosed to the appellants is clear about the situation of human rights defenders:26 [Translation] Overall, the human rights situation has improved slightly, but the "old habits" of the Kabila regime, such as the ban on marches, police intervention and detentions, even brief ones, and even abductions, have reappeared, particularly since the marches of June 30, 2019. Members of government security forces (Congolese national police and DRC armed forces) committed human rights violations (arbitrary arrests and detentions) against members of civil society, both human rights defenders in the broad sense and ordinary citizens. [63] From this conflicting evidence, I note in particular the following excerpts:27 [One observer] reports that despite the noted improvements, it observed [translation] "unjustified and disproportionate restrictions on civil liberties and the harassment of political opponents, journalists and human rights advocates in an effort to silence voices perceived as critical. ...former President Kabila still controls government institutions and security services. ...if people had problems with the Kabila regime and its security services in the past, they are likely to continue to have problems at this time. [Emphasis added] [64] According to the OFPRA document,28 the presidential party is divided, violent and corrupt, and the opposition is divided and targeted. Although some acts of violence are blamed on UDPS supporters who contested the 2019 senate elections or assaulted a journalist, police interventions, arbitrary detentions and kidnappings of opponents have reappeared since the June 30, 2019 marches. Opposing the government in order to improve democracy in the DRC puts activists at risk. Moreover, the document mentions possible tensions in 2023 for the next general elections. [65] Despite the change of president, the evidence credibly establishes on a balance of probabilities that Félix Tshisekedi's ability to ensure that Joseph Kabila and his supporters do not continue to arrest and kill political opponents is uncertain. I am of the opinion that the change in circumstances is not sustainable, effective or real, and has not significantly and measurably altered the situation of those who oppose the regime. [66] In light of the circumstances in the country, I analyzed the male appellant's particular situation. He was a UDPS activist, participated in protests, and was arrested and detained on these grounds. Beyond his membership of the UDPS party, the male appellant participated in many protests to demand real change in the country. The expected change did not happen. If he returns to the DRC, he would remain an activist seeking effective change in his country. Whether the male appellant was involved in UDPS press relations or not, he remains at risk of being a target for the police who continue to use excessive force against those who attempt to exercise their rights to demonstrate publicly against the current regime or who identify themselves as political opponents, whether they are members of the UDPS or not. Activists are repressed as they were under the Kabila regime by ANR agents and members of the national police, by the same forces that, despite the hope and some actions taken by his successor, remain active. The male appellant would face a serious possibility of persecution anywhere in the DRC. [67] ANR agents arrested, beat up, and assaulted the female appellant in 2017, and on a balance of probabilities, would do so again because of her husband's desire to see human rights improve in his country and the fact that people who have had problems with the Kabila regime in the past are likely to continue to have problems. The female appellant would face a serious possibility of persecution if she returned to the DRC as a member of the male appellant's family. [68] The appellant children, as part of the male appellant's family, would also face a serious possibility of persecution on a Convention ground. [69] After reviewing the NDP's documentary evidence, I conclude that the change of government did not bring about a change in circumstances. If they return to the DRC, the appellants would face a serious possibility of persecution because of the male appellant's political views and activism. The compelling reasons exception does not apply to the male appellant [70] Given that the change in government did not bring about a change in circumstances in the DRC, the reasons for the refugee protection claim still exist, so the "compelling reasons" exception does not apply to the male appellant. The Democratic Republic of the Congo would be unable to provide the appellants with adequate protection [71] The appellants submit that they are being persecuted by state agents and therefore the state cannot provide them with adequate protection. [72] States are presumed able to protect their citizens, except in the event of the complete collapse of the state apparatus. The presumption of state protection applies even if the agents of persecution are agents of the state. The appellants must rebut it with clear and convincing evidence, even if, because the state is the agent of persecution, they need not have exhausted all possible remedies in their country. [73] The current Congolese authorities cannot protect the appellants because the change in the country is not significant, real or sustainable. According to sources, the state is corrupt at several levels,29 even though the law provides criminal penalties for corruption by officials. The government did not implement the law effectively, and corruption continues to be practiced with impunity,30 despite the hope raised by the new government. Rampant corruption increases the possibility that the state will not be able to provide the female appellant with adequate protection. Corruption is also a factor in impunity for rape,31 which further increases the risk to the female appellant and her daughter. The above documentary evidence is also convincing that the Congolese state continues to repress opponents of the regime. [74] Considering the male appellant's profile as an activist for change in his country, considering that the state is itself the agent of persecution, the evidence is clear and convincing: if the appellants go to the authorities, it is likely that the police would not make reasonably serious efforts to protect them and that, on a balance of probabilities, the protection afforded by the DRC would be insufficient. The appellants would face a serious risk of persecution in Kinshasa, Lubumbashi or Boma [75] The appellants submit that the state agents are the national intelligence agents, that they have offices everywhere and control the country's entire territory, especially cities where political activities are intense and political battles between the different political entrepreneurs for their control are fierce. They add that returning to these cities would be unreasonable given the unemployment rate in the DRC and the poor health and education system. They point out that they have a low level of education, and that their lack of vocational training will not help them find a job to meet their children's basic needs. [76] Two prongs must each be established before an IFA can be said to exist.32 The issues are the following: On a balance of probabilities: (1) Would the appellants be personally subjected to a serious possibility of persecution or to a danger of torture, to a risk to their lives or to a risk of cruel and unusual treatment or punishment by the country's authorities in Kinshasa, Lubumbashi or Goma? (2) Considering all the circumstances, is it reasonable for the appellants to move to the IFA region, given their particular circumstances and the situation in Kinshasa, Lubumbashi or Goma? [77] Human rights violations are always jeopardized by insecurity and the immunity of state agents.33 In its report, OFPRA states that authorities remain deficient in prosecuting, investigating and punishing those responsible for abuses. The president of the foundation Bill Clinton pour la paix [Bill Clinton foundation for peace] stated in August 2019: [Translation] With the sharing of key ministries, the fact that the ministries of Justice, Human Rights, Defence and Finance are entrusted to the FCC is worrying, especially as it is always the same people who have been involved in all sorts of political mismanagement, embezzlement, the instrumentalization of justice, imputed theft, massacres and massive human rights violations, who are likely to return to power, firstly to protect their moral authority (Joseph Kabila) and secondly to cover up their crimes. In the bunch, there are especially those who are named in the sanctions of the EU, the US and the UN. They plan to weaken Felix Tshisekedi's regime and even overthrow it using unconstitutional methods. [78] The appellants would face a risk of persecution by state agents and, based on my observations of the documentary evidence, an IFA is not possible. The state's hold extends over the entire territory of the DRC, and in particular in the major cities.34 The ANR is a political police force under the authority of the president and the influence of Joseph Kabila. It has significant powers that are subject to limited judicial oversight, allowing its officers to act outside of criminal proceedings. After analyzing their particular situation and the specific profile of their agent of persecution, there is a serious possibility of persecution throughout the country for the appellants. [79] The first prong of the IFA is met, so the second prong does not have to be examined. [80] The female appellant's claim and the appellant children's claims are based on the male appellant's claim. They established that they would face a serious possibility of persecution if they returned to the DRC on grounds that they are members of the male appellant's family. [81] The RPD's decision is incorrect. The appellants established a risk of persecution because of the male appellant's involvement as a political opponent. They would face a serious possibility of persecution on a Convention ground if they returned to their country, the Democratic Republic of the Congo. Female appellant's allegation that she is a woman [82] In view of my findings, it is not necessary for me to respond to the appellants' arguments in this regard. CONCLUSION [83] The appeal is allowed. I substitute my own determination that the appellants are Convention refugees. (signed) Agnès CONNAT Me Agnès Connat February 1, 2021 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, subs. 110(4). 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FC 385. 3 SPR-1, Refugee Protection Division (RPD) record, page 155. 4 Ibid., page 190. 5 Ibid., page 228. 6 Ibid., page 152. 7 Ibid., page 191. 8 Ibid., page 153. 9 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 10 Office Français de Protection des Réfugiés et Apatrides (OFPRA) [French office for the protection of refugees and stateless persons], "Le bilan de début de mandat de Félix Tshisekedi, Son alliance avec Kabila, la situation des partisans de l'UDPS, des opposants, de la société civile et la question de l'impunité" [initial assessment of Félix Tshisekedi's mandate, his alliance with Kabila, the situation of UDPS supporters, opponents, civil society and the issue of impunity], April 30, 2020. https://www.ofpra.gouv.fr/sites/default/files/atoms/files/2004_cod_bilan_mandat_tshisekedi.pdf 11 SPR-1, RPD record, starting at page 89. 12 Recording of the hearing held before the RPD on November 19, 2019, starting at 01:25:19. 13 Ibid., between 01:28:17 and 01:34:58. 14 Occilus v. Canada (Citizenship and Immigration), 2020 FC 374, paragraphs 23 to 25. 15 Hamidi v. Canada (Citizenship and Immigration), 2015 FC 243, at paragraph 27. 16 SAR-1, National Documentation Package (NDP) on the Democratic Republic of the Congo (DRC), May 11, 2020, Tab 1.1: Democratic Republic of the Congo. United Nations. Geospatial Information Section. October 2019. 17 SPR-1, RPD record, page 188. 18 Guven v. Canada ( Citizenship and Immigration), 2018 FC 38, at paragraph 39. 22 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII). 20 Recording of the hearing held before the RPD on November 19, 2019, starting at 01:54:18. 21 SAR-1, NDP on the DRC, May 11, 2020, Tab 4.8: Treatment of opposition members, clergy members and members of the Union for Democracy and Social Progress (Union pour la démocratie et le progrès social, UDPS) since the 2018 elections (July 2019-January 2020). Immigration and Refugee Board of Canada. February 25, 2020. COD106401.FE. 22 Ibid., NDP on the DRC, Tab 4.8, p. 3/12. 23 Ibid., NDP on the DRC, Tab 4.8, p. 7/12. 24 Ibid., NDP on the DRC, Tab 4.8, p. 1/12. 25 Supra, endnote 24, NDP on the DRC, Tab 4.8, p. 4/12. 26 Supra, endnote 13, pp. 14 and 15. 27 Supra endnote 24, NDP on the DRC, Tab 4.8, pp. 4 and 5/12. 28 Supra, endnote 13. 29 SAR-1, NDP on the DRC, May 11, 2020, Tab 7.3: République démocratique du Congo : Informations concernant la corruption en République démocratique du Congo [Democratic Republic of the Congo: information on corruption in the Democratic Republic of the Congo]. France. OFPRA. September 2016. 30 SAR-1, NDP on the DRC, May 11, 2020, Tab 2.1: Democratic Republic of the Congo. Country Reports on Human Rights Practices for 2019. United States. Department of State. March 11, 2020. 31 SAR-1, NDP on the DRC, May 11, 2020, Tab 5.16: Focus RD Congo: Situation des femmes seules à Kinshasa [report on the situation of single women in Kinshasa]. Swiss Confederation. State Secretariat for Migration. January 15, 2016. 32 Leon v. Canada (Citizenship and Immigration), 2020 FC 428, [30] Before the RAD, the claimant has the burden of presenting "actual and concrete" evidence that it would be unreasonable to relocate to the IFA: Ranganathan v. Canada (Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164 (CA) at para. 15; Olvera Correa v. Canada (Citizenship and Immigration), 2012 FC 43 at para. 17. The case law is clear that the burden is very heavy and that "[i]t requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area": Ranganathan at para. 15; Hamdan v. Canada (Immigration, Refugees and Citizenship), 2017 FC 643 at para. 12. 33 Supra, endnote 13, p. 11. 34 SAR-1, NDP on the DRC, May 11, 2020, Tab 10.5: The National Intelligence Agency (Agence nationale de renseignements, ANR), including its mission, structure, territorial jurisdictions, co-operation with other state actors, and the documents it issues (2017-July 2019). Immigration and Refugee Board of Canada. July 12, 2019. COD106324.FE. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-02673 MC0-02674 / MC0-02675 / MC0-02676 MC0-02677 / MC0-02678 RAD.25.02 (January 2020) Disponible en français 8 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