Categories
All Countries Kenya

2020 RLLR 162

Citation: 2020 RLLR 162
Tribunal: Refugee Protection Division
Date of Decision: November 12, 2020
Panel: Laura Lunasky
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Kenya
RPD Number: TB9-30268
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000152-000155

DECISION

[1]       MEMBER: This is the decision for XXXX XXXX XXXX, file number TB9-30268. I’ve considered your testimony and the other evidence in your case and I’m ready to render a decision orally. You claim to be a citizen of Kenya. You are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act.

Determination

[2]       For the reasons that follow, I find that you are a Convention refugee on the grounds of membership in a particular social group as a bisexual man.

Guidelines

[3]       In deciding this claim, I have considered and applied the chairperson’s sexual orientation and gender identity expression guidelines.

Allegations

[4]       Your allegations are found in your Basis of Claim form at Exhibit 2. To summarize, you allege that you face persecution at the hands of the state due to your sexual orientation.

Identity

[5]       I find that your identity has been established on a balance of probabilities by your testimony and the certified copy of your Kenyan passport at Exhibit 1.

Nexus

[6]       I find that there is a clear nexus between your fear and the Convention ground of membership in a particular social group as a bisexual man. I find that the test under s. 96, whether there was serious possibility of persecution should you return to Kenya, is met.

Credibility

[7]       I find that you were a credible witness and I, therefore, accept your testimony and the statements you’ve made in your Basis of Claim. Your testimony was straightforward, very detailed, spontaneous, and mostly consistent with your Basis of Claim. I accept your explanation for the inconsistency in your testimony about the co-workers who saw you with another man in a party and outed you at work. I accept that you may have confused who said what at your two different workplaces. I accept that when asked about work, you focused on your later workplace and the co-worker who outed you there, as that was a more significant experience for you as you lost that job.

[8]       You were able to provide detailed and credible testimony about your relationship with your current same­ sex partner, XXXX (ph), without any attempt to embellish. You were able to provide details about him and his life. You were able to provide details about your life as a bisexual man in Kenya, including the LGBTQ networks there and the negative experiences you had when you were outed at work.

[9]       I also accept your explanation for the delay in leaving Kenya, that you’ve had a career there and you wanted to make it work. I accept your explanation for your delay in claiming, that you were originally planning to ask for permanent resident status on a spousal sponsorship before that relationship broke down and how you learned about refugee protection from your friend, XXXX (ph), just before you claimed. I note that you made a claim soon after learning of this option and within two months of separating from your former spouse.

[10]     You testified credibly about your fear should you return to Kenya, that you would be detained or harassed by police or even killed. I, therefore, find it credible that you face a serious possibility of persecution from the Kenyan State. You’ve also provided several documents in support of your claim, including several detailed letters of support from your friends, former same-sex partner, XXXX (ph), and family members in Kenya, and a letter from your current partner.

[11]     Since you have provided credible testimony as well as the corroborating documentation, I find that you have established on a balance of probability that you are bisexual. Accordingly, I find that you have established a subjective fear of persecution on a balance of probabilities.

Objective Basis

[12]     I find that your fear of persecution has an objective basis. Items 2.3 and 6.1 of the National Documentation Package for Kenya state that sexual acts between people of the same sex are illegal and may be punished with imprisonment of up to 14 years under the laws of Kenya. The penal code criminalizes carnal knowledge against the order of nature, which was interpreted to prohibit consensual same-sex sexual activity and specifies a maximum penalty of 14 years imprisonment if convicted. Item 2.1 further stipulates that a separate statute specifically criminalizes sex between men and specifies a maximum penalty of 21 years imprisonment if convicted.

[13]     The Freedom House report at Item 2.3 states that members of the LGBT community continue to face discrimination, abuse and violent attacks. The UN Committee of Economic, Social and Cultural Rights at Item 2.4 of the National Documentation Package has noted that lesbian, gay, bisexual, transgender, and intersex persons are stigmatized and socially excluded, as well as discriminated in gaining access to social services, particularly healthcare services.

[14]     Since I have found you have — you to have a subjective fear and an objective basis for that fear, I find that you have established that you have a well-founded fear of persecution.

State Protection

[15]     I find that you have established that there’s inadequate state protection available to you in Kenya as same-sex sexual acts are considered criminal and that the state authorities are the agents of persecution. I therefore find that you have provided clear and convincing evidence that the Kenyan state is unwilling and unable to provide adequate state protection.

Internal Flight Alternative

[16]     I have also considered whether there is a viable internal flight alternative available to you. I find that you face a serious possibility of persecution throughout the country given that same-sex relations are illegal.

[17]     Based on the totality of the evidence, I find that you have established a well-founded fear of persecution in Kenya because of your membership in a particular social group being a bisexual man. Accordingly, I find you are a Convention refugee.

[18]     Your claim is accepted. Thank you.

CLAIMANT: Thank you so much.

COUNSEL: Thank you.

MEMBER: All right, so that concludes our hearing for today and I will go off the record.

——————–REASONS CONCLUDED ——————–

Categories
All Countries Kenya

2020 RLLR 112

Citation: 2020 RLLR 112
Tribunal: Refugee Protection Division
Date of Decision: November 10, 2020
Panel: Mary Truemner
Counsel for the Claimant(s): Deryck Ramcharitar
Country: Kenya
RPD Number: TB9-29346
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000185-000187

DECISION

[1]       MEMBER: These are my reasons for my decision granting the applicant’s — sorry, the claimant’s claim for refugee status in file number TB9-29346, the claim of [XXX].

[2]       The claimant is a citizen of Kenya on claim that he is bisexual. He is seeking refugee protection in Canada pursuant to s. 96 of the Immigration and Refugee Protection Act.

[3]       The allegations of the claim are found in the Basis of Claim form.  In summary, the claimant fears persecution by homophobic family members and other homophobic people in the future in Kenya.  He claims that he cannot live openly as a bisexual man in Kenya because homophobia is widespread. Even if he were to live in secret having relationships with men, he fears being discovered. Kenya has laws against sexual relationships between men.

[4]       I find that the claimant has satisfied his burden of establishing a serious possibility of persecution on a Convention ground upon return to Kenya.

[5]       The identity of the claimant is established on a balance of probabilities through the certified true copy of his passport currently held by the Canadian Border Service Agency, CBSA.

[6]       Regarding credibility, when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their truth. The claimant testified about his marriage to a woman in Kenya with whom he had three children, but also about his bisexual relationships in the United Arab Emirates and later with a Kenyan lover where he took a holiday in Tanzania and with whom he had romantic relations in Kenyan before he fled to Canada with a visa. His testimony was consistent with the narrative in his BOC — or, substantially consistent.

[7]       In 2004, the claimant had his first sexual relationship with a man, a work colleague in the United Arab Emirates, which put the claimant in peril there so that he stopped working in the UAE and returned to Kenya. Back in Kenya in 2016, he began an affair with another man, again a colleague, and was again put in peril because of it when vacationing with his lover in Tanzania. His family in Kenya found out about his lover and threatened his life for — and threatened the claimant’s life for bringing shame to the family. The claimant’s testimony was materially consistent with the Basis of Claim.

[8]       He also produced at the hearing an email to an agency here in Toronto which supports his testimony about his identity as a bisexual man. Also, he had testify a witness, his uncle, to whom he fled in Canada. The uncle substantiated his circumstances as a married man in Kenya and talked about what support he gave to the claimant here in Toronto.

[9]       While there were some inconsistencies in the claimant’s testimony, the Basis of Claim, and the claimant’s witness’ testimony, they were not material to the issue of whether he is bisexual, and the claimant’s explanations for the inconsistencies have satisfied me that he is telling the truth regarding his sexual orientation. I find that the claimant is generally credible and that on a balance of probabilities he is bisexual.

[10]     The overall objective evidence supports the claim. The claimant’s testimony was consistent with descriptions in the NDP, Exhibit 3, of widespread discrimination against men in Kenya who have same-sex relations, while the most recent item on the issue, item 6.6 from the UK’s Home Office, April 2020, reports that discrimination is lessening, it is still taboo in many families and communities in which violence will flare up.  I find that in the documentary evidence there is an objective basis for the claimant’s fear of persecution and his fear is well founded.

[11]     As well, the criminal law prohibits same-sex sexual relations between men with a maximum penalty of 21 years in prison. Therefore, with regard to state protection, I find on a balance of probabilities that rather than being protected from assaults by homophobic attackers, it is more likely that the claimant reporting to authorities that he is gay would be at risk of prosecution and would unlikely be protected.  Given that the laws of the state have criminalized sexual relations between men, I find that it would be objectively reasonable for the claimant to seek protection of the state in his circumstances.

[12]     Regarding an internal flight alternative, I find there is nowhere for the claimant to live safely in Kenya given that the criminalization of sexual relationships between men affects the entire country.  I find that there is a serious possibility of persecution throughout Kenya given the pervasive discrimination against gay couples and I find that there is no possibility of adequate state protection in any part of the country. Therefore, a viable IFA does not exist for the claimant who, although bisexual, has testified that he is essentially bisexual and is — and will behave as a bisexual man.

[13]     Having considered all of the evidence, I find on a balance of probabilities that the claimant is bisexual and given his profile, there is a serious possibility that he would face persecution with inadequate protection if he were to return to Kenya.

——————–REASONS CONCLUDED ——————–

Categories
All Countries Kenya

2020 RLLR 107

Citation: 2020 RLLR 107
Tribunal: Refugee Protection Division
Date of Decision: June 17, 2020
Panel: P Kissoon
Counsel for the Claimant(s): Leigh Salsberg
Country: Kenya
RPD Number: TB9-11078
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000155-000167

REASONS FOR DECISION

[1]       The claimant, [XXX], a citizen of Kenya, claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2]       The allegations of this claim are found in the Basis of Claim form.[1] The claimant is alleging that, as a woman, she faces gender-related persecution by reason of her membership in a particular social group. In summary, the claimant alleges intimate partner violence from her son’s father, who abused her, threatened her life, and attempted to recruit her to join the Mungiki criminal sect. She alleges that there is no state protection for her, nor is there any place for her to live safely in Kenya due to the failures of the state to protect women facing domestic violence and because her son’s father has continued to try to find her in different locations.

Chairperson’s Guidelines

[3]       The panel has considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution[2] and in particular, Part C Evidentiary Matters, and Part D Framework of Analysis, to assess credibility and analyse the internal flight alternative (IFA), within the claimant’s own social, cultural, and economic context:

  1. “In determining the reasonableness of a woman’s recourse to an internal flight alternative (IFA), decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship. In determining the reasonableness of an IFA, the decision-makers should take into account factors including religious, economic, and cultural factors, and consider whether and how these factors affect women in the IFA” (Part C).
  1. “Considerations: Whether there would be undue hardship for the claimant both in reaching the location of the IFA and in establishing residence there” (Part D).

[4]       An application was allowed for procedural accommodations for the claimant as a vulnerable person, according to the Chairperson’s Guidelines on Procedures with respect to Vulnerable Persons appearing before the Board.[3] A [XXX] assessment was disclosed[4] with recommendations for accommodations from a qualified Canadian medical doctor specialising in [XXX]. Accordingly, procedural accommodations included: varying the order of questioning; using a soft and gentle tone of questioning; allotting adequate time to answer questions, repeating questions as necessary; taking frequent breaks as needed; limiting the number of questions about dates and timelines; and limiting the questions about the details of the domestic violence.

[5]       The [XXX] diagnosed the claimant with [XXX] and [XXX]. In addition to severe [XXX] of [XXX] and [XXX], the assessment also indicated symptoms of her disorders that might affect testimony including, “significant avoidance of thinking and talking about the past to the point of not having been able to disclose certain aspects of the trauma until now” and “difficulties with focus and memory”. The [XXX] also described the claimant as being “very disorganized in the way she described her past […] tangential and circumstantial, and sometimes vague in her answers […] and all these are seen in severe and chronic trauma.[5]” The panel considered the objectives of Guideline 8 first to recognize the particular difficulties of the claimant and factors that may impair her ability to present her case and second to ensure the ongoing sensitization of the panel to prevent the claimant from re­traumatization by the hearing process.

DETERMINATION

[6]       The claimant has established a serious possibility of persecution in Kenya on account of her membership in a particular social group. Therefore, the panel finds that she is a Convention Refugee pursuant to section 96 of the Immigration and Refugee Protection Act (IRPA).

ANALYSIS

[7]       The panel has considered all the evidence relating to the allegations including the claimant’s testimony, personal and country documents, and counsel’s written representations.

Identity

[8]       On a balance of probabilities, the panel finds that the claimant has established her personal identity and Kenyan citizenship based on the certified true copy of her Kenyan passport.[6]

Nexus

[9]       There is a nexus between the claimant’s allegations and one of the five Convention grounds, specifically membership in a particular social group as a Kenyan woman who is at risk of gender-based violence. Therefore, this claim has been assessed under s 96 of the IRPA.

Credibility

[10]     The panel finds the claimant’s testimony and evidence to be credible and generally reliable in assessing her fear of persecution. The claimant was forthcoming and detailed in her responses. There were no relevant inconsistencies or contradictions between the testimony and other evidence. The central allegations of this claim pertain to the claimant’s relationship to her younger son’s father (FK). Therefore, the panel has focused its findings on the claimant’s former intimate-partner relationship and gender-based violence, as well as the agent of persecution’s membership in the criminal Mungiki sect and ongoing interest in locating her and her youngest son.

The claimant endured Intimate Partner Violence at the hands other child’s father

[11]     The claimant moved with her older son to Mombasa in 2010, where he attended secondary school and she earned income from selling fruit in the market. She began a relationship with a patron of her stall, FK, who was originally from Nairobi and who was the same ethnicity as her, Kikuyu. He had two children and a wife, and he told the claimant that he was divorced, though he did not prove this to her. Their relationship began with him visiting her stall, and then visiting her at home. He began to beat her during his visits. The claimant became pregnant for him in 2011 and the beatings became worse during her pregnancy. He visited almost daily and was often drunk. After her youngest son was born in [XXX][7], he continued to visit her and to beat her brutally. The panel asked whether her older son or neighbours had witnessed any of this abuse or its effects. She explained that neighbours had tried to intervene, but she did not stay in touch with any of them after she fled Mombasa in 2013, although she occasionally ran into them in Nairobi and they would tell her that FK was still looking for her and threatening to harm her and take his son. She also explained that she never indicated to her older son that she was being abused by FK because he had been in boarding school in Mombasa. He would not have witnessed the abuse, she was too ashamed to let him know, and if he did learn about the abuse he would have tried to confront FK, which would have been dangerous for him. For these reasons, she had no letters of support regarding the abuse. The panel asked her whether her older son knew why she was in Canada, and she said that he did. Her older son has also sent her original documents for the claim from his address in Nairobi.[8] The panel weighed the claimant’s explanations for the lack of personal documents, and found them to be reasonable given her particular circumstances, which include her avoidance of sharing details of her abuse.

[12]     The claimant mentioned in her BOC going to the hospital at least once during her stay in Mombasa due to a fall caused by FK, where she was treated with injections, and she also states that she had to go to the hospital various times because of his abuse. However, no contemporaneous hospital or medical records were produced from that time. The claimant did disclose hospital records from [XXX] from [XXX] and [XXX] 2019[9] and explained in her BOC that she attended appointments to investigate increasing pain in her leg from the abuse she experienced with FK.

[13]     The panel asked whether she ever reported his abuse to the police in Mombasa and she said that she reported FK to the elders before she became aware of his Mungiki membership; however, the abuse did not stop after the elders met with him.[10] The claimant did not disclose any letters from the elders in support of her claim; however, going to the elders is consistent with the Kenyan NDP, which says that in matters of domestic violence, people frequently use traditional dispute resolution mechanisms addressed by village elders as an alternative to official channels.[11]

[14]     The panel has analysed the absence of documents from Mombasa as follows. The panel notes that the claimant was able to provide documents from locations where she continues to have a network of support, which she can draw on to help her to substantiate her allegations of abuse, such as [XXX]. The abuse that she directly experienced was associated with Mombasa. She moved four or five times in Mombasa and environs, including neighbouring Kilifi County[12]; however, FK would locate her and harass her while she was vending, and he also threatened to kill her. Referring to her [XXX] assessment, the [XXX] described the claimant’s [XXX] and [XXX] in relation to her trauma, as well as memories of abuse that she considers “unmentionable”. As such, she literally might be avoiding having her support network risk their lives, as she sees it, to get documents in Mombasa since FK still resides in Mombasa as far as she is aware, and she testified that she does not know what FK might do to her family because she and her younger son are in hiding. Given the unspeakable abuse she experienced in Mombasa, and the shame she says she feels, the panel finds that her credibility regarding the abuse outweighs any negative inferences arising from this gap in the claimant’s documentary evidence. For the reasons that preceded, the panel finds that the claimant has established, on a balance of probabilities, a fear of persecution as a victim of domestic violence at the hands of FK.

Well-founded fear of persecution – Objective Basis

[15]     The panel finds that the claimant’s subjective fear of persecution has an objective basis. The socio-cultural acceptance of domestic violence by a large minority of the population has a serious impact on the female demographic, indicated by Kenyan authorities who reveal, “domestic violence as the leading cause of preventable, nonaccidental death for women during the year”.[13] The prevalence of violence against women is particularly notable in the Kenyan Demographic and Health Surveys Program (DHS) statistics that show, “the number of women who have experienced violence since the age of 15 has actually increased from 38.5% in 2008/9 to 44.8% in 2014, with husbands/partners the main perpetrators. [Further] 41.8% of women (aged 15 to 49) and about 36% of men felt that hitting or beating the wife was justified in certain domestic situations”.[14]

[16]     The panel finds, on a balance of probabilities, that the claimant has established a pattern of violence that was not remedied by community intervention, and that the violence amounts to a violation of a fundamental human right. The panel is satisfied that there is an objective basis to the claimant’s subjective fear, and she has established a well-founded fear of persecution based on her gender.

STATE PROTECTION

[17]     The claimant described her attempts to find relief from the abuse from the elders; however, the matter was taken to the police only once. She was in hiding at her mother’s house in Nairobi after fleeing Mombasa and, a few months later, her mother found a threatening note at their door from FK. She and her mother went to the police who referred her to the Area Chief’s office. The Area Chief wrote a letter dated [XXX] 2019 summarizing that FK was looking for the claimant and his son, and stating that the claimant should look for safety while an investigation is conducted in the matter. The panel asked her about the investigation and police response, and she said they sent patrols but did not follow up to let the family know the status of their investigation. She said that she does not know if they wrote a report following her complaint, but when they read the note they referred her to the Chief’s office. Police referral of the matter is consistent within the Kenyan NDP that indicates that mediation and conciliation in family matters is widely promoted by police who avoid domestic issues.

[18]     The objective evidence in the NDP indicates that Kenya is making progress in recognizing the rights of women, with various policy and administrative reforms. However, at the level of implementation and enforcement, the NDP describes a high level of tolerance of violence against women that undermines the effectiveness of state protection, including difficulties to investigate and prosecute gender-based violence.[15] Further, domestic violence is a pervasive problem and, “Except in cases of death, police officers generally refrained from investigating domestic violence, which they considered a private family matter”.[16] According to the NDP, “police officers often do not enforce the illegality of rape”[17] and the enforcement of laws pertaining to rape and domestic violence is limited.[18]

[19]     The panel finds that there is clear and convincing evidence to rebut the presumption of state protection, on a balance of probabilities, and that adequate state protection would not be reasonably forthcoming in this particular case.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[20]     In determining the viability of an IFA, a two-pronged test must be considered. First, the panel must be satisfied, on a balance of probabilities, that there is no serious possibility of persecution in the suggested IFA. Secondly, conditions in the part of the country proposed as an IFA must be such that it would not be unreasonable to seek refuge there in all the circumstances, including those particular to the claimant. The second prong of the IFA test is an objective one: is it objectively reasonable to expect the claimant to seek safety in a different part of the country? Generally, the documentary evidence in the NDP discusses conditions for women in Nairobi; however, the panel infers that the challenges outlined also relate to relocating to other places in Kenya. Eldoret was a possible IFA put to the claimant, and it was an IFA that she had attempted in the past, at the home of her uncle. However, even if FK could not locate her in the IFA, the panel finds that it would be unreasonable for the following reasons.

  1. Ongoing Medical Treatment is Beyond the Claimant’s Reach in the IFA

[21]     The claimant has submitted physical and mental health records that have established that she requires ongoing medical treatment. In the context of the severity of her trauma, the [XXX] noted that the claimant will “not be able to make full use of any treatment modalities until the threat of her trauma recurring is permanently removed”.[19] She has undertaken counseling at the Riverdale Immigrant Women’s Centre as well as the Canadian Centre for Victims of Torture, both of which have provided letters[20] regarding her [XXX] and [XXX] techniques.

[22]     Further to her frail [XXX] condition, the claimant has undergone surgery in Canada to remove a large growth from her [XXX], she has persistent left hip discomfort caused by [XXX] and [XXX] a [XXX] of the shoulder, and an [XXX] tear.[21] Consequently, she has severe pain in her [XXX] and restricted [XXX] of her [XXX]. She is undergoing [XXX], and requires ongoing diagnostic testing for other issues.

[23]     While the objective documentation suggests that the Ministry of Public Health and Sanitation provides free primary health care, with a focus on preventative care for all, “public hospitals lack doctors, nurses, drugs, and other medical necessities, and a recently introduced medical insurance program is not accessible to low income earners or the unemployed.”[22]Further, considering the objective evidence regarding mental health services in Kenya, item 6.2 of the NDP states that the topic of mental health is taboo in Kenya and not seen as a medical or social problem that can be treated.[23] Item 5.5 indicates that mental health “services are ‘sparse’ and are not covered by general health insurance.”[24] While this may be a generalized problem amongst the poor throughout the country, the IFA requires the claimant to live away from her social and family network in [XXX] while caring for her young son, which is an additional hardship as an older, single parent, without a stable source of income, struggling to manage her own [XXX] health. It is the claimant’s particular circumstances that suggest that an IFA would be unreasonable for her and detrimental to her well-being, particularly when considering her employment and housing options.

  1. Employment is precarious, unstable, and difficult for the claimant to obtain in the IFA

[24]     The objective evidence in the NDP, Item 5.5 indicates that women face discrimination in accessing credit and they are concentrated in the informal sector, which is characterized by low wages, menial jobs that are available erratically, and a reliance on referrals through one’s social or informal networks, which exposes women to a high risk of abuse and violence.

[25]     Other than her elderly uncle, the claimant’s network is non-existent in Eldoret, placing her in a vulnerable position as a woman who is new to the city, and exposed to gender-based discrimination, ethnic discrimination, and sexual violence.[25] Further, Item 5.5 states that widows may engage in sex-work to make a living in Nairobi[26] and, as a lone-parent undertaking forced re-location to an IFA, the claimant is similarly situated to widows in her vulnerability to life­ threatening or degrading work to support her son and herself because, like the widow, she also does not have a husband.

[26]     The claimant has completed seven years of primary school only. With this level of education, her previous work history consisted of street vending, domestic work, and agricultural labour, each of which provided a meagre unstable income. In Eldoret, the most accessible income-generating activity for the claimant, given the limitations of her physical condition and age, is street vending. The objective information from the NDP, Item 2.1, suggests that street vending places women at risk of daily harassment and abuse. According to a study of street vendors in Nairobi, “harassment was the main mode of interaction between street vendors and authorities,” demands for bribes by police amounted to three to eight percent of a vendor’s income, and sexual abuse were common.[27] Although this information pertains to the country’s capital, it is not unreasonable to think: that the harassment, corruption, and abuse would extend to vending conditions for women in other cities and towns as the NDP refers to “widespread impunity”[28] for gender-based violence.

[27]     Considering the severity of her [XXX], a return to the conditions that precipitated her abusive relationship might worsen her condition. The claimant’s history of violence at the hands of her child’s father began while she was a street vendor, and continued even though she tried to move within Mombasa so he could not find her. The [XXX] assessment referred to her feeling “dehumanized, helpless, powerless, and terrified for her life”[29] in Kenya and in Saudi Arabia, and “extreme distrust of others”. By contrast, the very act of street vending requires one to engage with strangers and, according to the NDP, to cope on a daily basis with intimidation and abuse, which is completely incompatible with her [XXX] health. On a balance of probabilities, the panel finds that the claimant would face destitution in the IFA resulting from irregular employment and employment conditions that may be harmful to her health.

  1.  Difficulty accessing appropriate housing

[28]     Based on her irregular and limited income, afforded by her education, age, and status as a single-parent, the claimant would also have difficulty finding appropriate housing for her and her son. With respect to the objective documentary evidence, NDP Item 5.5 states that more than half of Nairobi’s residents live in “informal settlements”, where women represent 46 percent of the population of slum-dwellers, and women who arrive to the city can generally only afford informal housing.[30] The claimant alleged that she would not be able to rely on her elderly uncle to support her again; the claimant does not own property, she does not stand to inherit, and her income is likely to be precarious, so she would likely fall into the category of the urban poor if she were to re-locate internally.  The objective evidence suggests that women residing in informal settlements as sole-providers, “live hand to mouth, putting together the money and food needed for the family from a range of sources, including money given by churches, cooking and selling food, trading in petty items, begging or scavenging, carrying loads at construction sites or engaging in sex work”.[31]

[29]     The UK Home Office notes, “In general, where the threat is from non-state agents, internal relocation to another area of Kenya is likely to be reasonable, depending on the nature and origin of the threat, and the individual circumstances of the person. Women and girls face discrimination and restrictions in their social and economic rights, and may find relocation more difficult than men.”[32] Moreover, “women with no support network and without any accompanying family members may find it unreasonable to relocate”.[33] On a balance of probabilities, the claimant would face a high risk of housing instability and homelessness.

[30]     The documented challenges of employment, and housing upon relocating, and the claimant’s [XXX] symptoms of[XXX] and difficulty trusting others, in combination with her age, status as a lone parent, lack of social or kinship network, level of education, and limited work history, make it objectively unreasonable and unduly harsh to require the claimant to start over in a new part of Kenya, where she would continue to live in intense fear.

[31]     Although the courts have set a high bar for finding a proposed IFA to be unreasonable, the panel finds that this bar has been met in the claimant’s specific situation. This analysis of the appropriateness of the IFA is linked to the Gender Guidelines and applied to the particular case of this Kenyan woman to consider how she would be affected in her own circumstances. The claimant would face significant hardship in finding employment and housing. Without employment, the claimant would face poverty. The objective evidence is clear that people in poverty face significant issues when accessing healthcare, and the claimant has demonstrated her need for both medical and psychological treatment. As the test for an IFA fails on the second prong, the panel finds there is no viable IFA for the claimant anywhere in Kenya.

[32]     Considering that the claimant has been found to be credible, and that there is no IFA for her, the panel finds that she has established a well-founded fear of persecution under section 96 of the IRPA.

CONCLUSION

[33]     The panel has considered all of the evidence and has determined that there is a serious possibility that the claimant would be persecuted in her country of nationality due to her Membership in a Particular Social Group, women.

[34]     The panel finds that the claimant is a Convention refugee, pursuant to Section 96 of the IRPA; therefore, the claim for protection is accepted.


[1] Exhibit 2.

[2] Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, September 1996 (the Gender Guidelines).

[3] Chairperson’s Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB, amended December 2012 (the Vulnerable Persons Guideline).

[4] Exhibit 8.

[5] Ibid.

[6] Exhibit 1.

[7] Exhibit 6, p 11.

[8] Ibid., p 1.

[9] Exhibit 6, pp 18-24.

[10] Exhibit 10.

[11] Exhibit 3, KEN – 31 January 2020 – 2.1, p 33.

[12] Exhibit 1.

[13] Exhibit 3, KEN – 31 January 2020 – 2.1, p 34.

[14] Ibid., Item – 5.3 p 18.

[15] Ibid.

[16] Ibid., Item – 2.1, p 34.

[17] Ibid.

[18] Ibid.

[19] Exhibit 8.

[20] Exhibit 6, pp 41-42.

[21] Ibid., pp 25-33.

[22] Exhibit 3, KEN – 31 January 2020 – 5.5, p 7.

[23] Ibid., Item – 6.2, p 5.

[24] Ibid., Item – 5.5, p 8.

[25] Ibid., p 5.

[26] Ibid. p 6.

[27] Ibid., Item – 2.1, p 48.

[28] Ibid., Item – 5.5, p7.

[29] Exhibit 8.

[30] Ken — 31 January 2020 — 5.5, p 3.

[31] Ibid., p 5.

[32] Ibid., Item – 1.7, p 13.

[33] Ibid., Item 1.4, p 7.

Categories
All Countries Kenya

2020 RLLR 88

Citation: 2020 RLLR 88
Tribunal: Refugee Protection Division
Date of Decision: August 28, 2020
Panel: Kerry Cundal
Counsel for the Claimant(s): Bashir A. Khan
Country: Kenya
RPD Number: VB9-09240
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000186-000191

DECISION

[1]       MEMBER:   Okay, welcome back, we’re now on the record again.  Okay, good news, I am going to accept your claim, okay?  And I’m going to give you my decision and reasons for doing so today, okay?

[2]       All right, so it’s the beginning of the next chapter, I’ll give you the decision and reasons now.

[3]       This is the decision of the Refugee Protection Division in the claim of [XXX], a citizen of Kenya, who is claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act. Your identity has been established on a balance of probabilities by a copy of your Kenyan passport found at Exhibit 2.

ALLEGATIONS:

[4]       You fear return to Kenya because you fear persecution, including death threats and imprisonment because of your sexual orientation as a gay man.  You left in [XXX] of 2019 and travelled directly to Canada.  You provided significant details in your Basis of Claim form. Your passport is at Exhibit 1, and your Basis of Claim form is at Exhibit 2. I will highlight some of your details of your narrative and testimony today in this decision. I have also reviewed and applied the Chairperson’s Guideline Nine, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. And in particular I am mindful of the socio-cultural context of a sexual minority who has lived in a country where same sex activities are criminalized, and societal violence continues today against sexual minorities in Kenya.

DETERMINATION:

[5]       I find that you have established that you are a Convention refugee pursuant to Section 96 of the Act for the reasons that follow.

ANALYSIS:

Credibility

[6]       You testified in a straightforward and consistent manner today, and I find that you are a credible witness.

Well-founded Fear of Persecution and Nexus

[7]       As I’ve indicated, you’ve testified in a straightforward manner today. You provided details with respect to your sexual orientation in particular. You gave details about your relationship with [XXX], which was a long-term relationship of approximately 11 years. You testified that you met [XXX] while you were both working for [XXX].  You testified that you and [XXX] kept this relationship secret because it’s illegal to be in an open gay relationship in Kenya. You testified that you would do weekend trips together, go watch rugby games together.  You testified that your wife, [XXX], did not know about this.  You testified that you married [XXX] in 2018, but you had known her and been with her since 2007, and your son with [XXX] was born in [XXX]. You testified that your understanding is that [XXX] did not, although she had suspicions, she did not fully know that you were gay until after you had already arrived in Canada when she understood why you had left Kenya.

[8]       You testified that your career was going well and that you had a good life in Kenya. But as a result of threats, extortion, blackmail, from your former boyfriend, [XXX], that the threats became so significant up until before you left in 2019, that you feared for your life.

[9]       You also testified that one of the threats that you returned by text was a photo of your son and an indication that the texter (ph) knew that – where your son went to school. And at that point you testified you understood that these threats were very serious.  And you testified that the relationship ended with [XXX] in 2011, and subsequent to that [XXX] would ask you for money, as you testified he considered that you should look after him, paying rent, buying things for him, or he would threaten to out you or tell others that you were gay.  And so out of fear you continued to financially support [XXX] over the years.

[10]     You testified that you later learned that [XXX] was part of a larger group that was involved in extortion and threats against sexual minorities in terms of outing them if they did not pay rent according to the demand.

[11]     You also provided genuine testimony today regarding your life experience as a gay man in Kenya, and the fears that you had in terms of making sure that no one ever knew about your sexual orientation. You testified about the struggles that you had in coming to Canada. You testified that you were homeless and had nothing when you first arrived in Canada and it was through the Mennonite Church and the Sunshine House where you felt welcome as a gay man and you were able to get on your feet and get a home.

[12]     You testified that you’ve been able to open up about things that have happened to you and about your sexual orientation for the first time in your life here in Canada where you’ve been free. You’ve testified that you have issues because of the trauma because of this relationship with [XXX], and so you’ve testified that you have trust issues and you’re not ready for another relationship.  You also testified that you spoke to your wife about a month ago and you testified that you have no idea where that relationship is at or whether she has any interest in the relationship with you. You testified that she was in disbelief and shock and not a positive response to coming to grips with the fact that you are a gay man, from your wife’s perspective, as you testified.

[13]     Based on the totality of the evidence before me, I find that you have established a nexus to a Convention ground, membership in a particular social group due to your sexual orientation as a gay man.  You also provided corroborative documents at Exhibit 4, including the letter from the Sunshine House with respect to your sexual orientation. As well as some of your employment documents, education documents, as well as identity documents including your marriage certificate to [XXX]. And this is found at Exhibit 4.

[14]     The objective evidence supports your fear of return to Kenya as a gay man, and at the National Documentation Package, item 2.1, which is a U.S. Department of State Report it indicates that there is criminalization of homosexuality in Kenya. The National Documentation Package, item 6.1, which is a report from an international association supporting sexual minorities, and it specifically outlines section 162 of the Penal Code which criminalizes same-sex activities. It further gives more details regarding the persecution of sexual minorities in Kenya, including by the police officers. It indicates that police officers will do forced anal examinations with respect to finding proof that an individual is a sexual minority.

[15]     It also indicates that there are reports of mob violence and beatings against sexual minorities throughout Kenya, and the police will then arrest the victim, the person who is a member of a sexual minority after the mob has beaten them. The penalty for same-sex activities in Kenya continues to be 14 years in prison. The National Documentation Package, item 2.2 which is a Human Rights Watch Report, also indicates that the human rights abuses in Kenya are perpetrated by security forces and the police. There continue to be extrajudicial killings and disappearances. And it also indicates that the High Court in Kenya upheld the laws against same-sex activities in Kenya. So, unfortunately, today the situation for sexual minorities in Kenya is very dire indeed.

[16]     With respect to State protection and internal flight alternative. Given the objective evidence that the State is an agent of harm against sexual minorities, such as yourself as a gay man, I find that there is no State protection available to you as they are the perpetrator of the human rights abuses that you would face in Kenya.

[17]     Further, given that the laws against sexual minorities cover all of Kenya, I find that it would be neither safe nor objectively reasonable in all of the circumstances, including your particular circumstances as a gay man, to try to relocate anywhere in Kenya to be safe.  Accordingly, I find that there is no Internal Flight Alternative available to you.

CONCLUSION:

[18]     For the foregoing reasons, I determine that you are a Convention refugee pursuant to Section 96 of the Act and the Board, therefore, accepts your claim.

[19]     Okay. Thank you, Counsel, and, sir, I wish you all the best in all of your future endeavours, okay?

———- REASONS CONCLUDED ———-

Categories
All Countries Kenya

2020 RLLR 82

Citation: 2020 RLLR 82
Tribunal: Refugee Protection Division
Date of Decision: November 17, 2020
Panel: Ekaterina Perchenok
Counsel for the Claimant(s): Joshua Moegi Makori
Country: Kenya
RPD Number: TC0-03000
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000138-000143

DECISION

[1]       MEMBER:                Okay so we’re back on the record now. I’m sorry to have kept everybody waiting for me but counsel I don’t need to hear questions from you if that’s okay.

[2]       COUNSEL:               That’s okay.

[3]       MEMBER:                I am ready to make a decision, okay?

[4]       CLAIMANT:            Okay.

[5]       MEMBER:                This is the decision for [XXX], File number TC0-03000. I’ve considered your testimony and the other evidence in your case and I’m ready to render a decision orally.

[6]       You claim to be a citizen of Kenya; you are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection act.  In coming to a decision in your claim I have taken into consideration the chair person’s Guideline 4 for women refugee claimants fearing gender related persecution in assessing the harm for feared by the claimant.

DETERMINATION:

[7]       For the reasons that follow I find that you are a Convention refugee on the grounds of membership in a particular social group as a young woman facing gender based violence.

ALLEGATIONS:

[8]       Your allegations are found in your Basis of Claim Form at Exhibit 2.  To summarize you allege that you face persecution at the hands of your father’s family and your Kalenjin community due to your gender and age and specifically that you face the prospect of female genital mutilation and forced marriage against your wishes.

IDENTITY:

[9]       I find that your identity has been established on a balance of probabilities by your testimony and the certified copy of your Kenyan passport at Exhibit 1.

NEXUS:

[10]     I find there is a clear nexus between your fear and the convention ground of membership in a particular social group as a young woman facing gender based violence from your family and community. Therefore I have considered your claim under Section 96.

CREDIBILITY:

[11]     When a claimant swears that certain facts are true, this creates a presumption that they are truthful unless there is reason to believe otherwise.  Overall I find you to be a credible witness and I therefore accept your testimony and the statements you have made in your Basis of Claim.

[12]     You testified in a straightforward and detailed manner. I find that there are no serious reasons to reject your testimony on the basis of credibility.  During the hearing you were responsive to questions that were asked and you did not appear to embellish your evidence.

[13]     You testified to be [XXX] years old.  Shortly after [XXX] and before your [XXX] birthday, you testified that you were summoned to a meeting at a community eiders house in [XXX] 2018 where you were informed that [XXX](ph) was selected to be as a husband for you and was ready to pay a Dowry for you.

[14]     You knew [XXX] as an older rich white man from the community, sorry older rich man, I apologize.  You were told of your upcoming circumcision in preparation for the wedding. You testified that you became upset at this and tried to educate those at the meeting about the negative effects of circumcision.

[15]     You testified about the dismissive reaction of your opposition, to your opposition and how your mother remained quiet at that meeting.  You testified that things between yourself and your father were very tense for the next several months but that your mother told you about her true feelings on the issue, that she herself was circumcised and did not want you to go through that.

[16]     You testified that after your cousin’s funeral in [XXX] you were beaten by your father and uncles because you would not agree to the cultural rituals of FGM.  You testified that you ran away from your cousin’s house and went to the police but that they were no help.

[17]     You testified that you were told by the police to turn to your community eiders for support. You testified about staying with various friends in Nakuru Nairobi and Mombasa and about being located by strange men.

[18]     When you were in Nakuru a man came to your house with a warning for you about “going against your community”.  When you were in Nairobi you believed you were being followed and got a phone call where in the caller threatened to kill you.

[19]     When you were in hiding in Mombasa you were attacked by two men who attempted to kidnap you and “take you home”.  You did not know how they found you but believed all of these incidents were connected to your rejection of the marriage and the FGM.

[20]     All throughout you testified you were in contact with your mother, who was trying to help you.  At her suggestion you applied for a passport and with her help you applied for a visa to Canada and fled Kenya.

[21]     Your allegations were internally coherent and consistent with the narrative and the affidavits you provided from [XXX] (ph), [XXX] (ph) I apologize if I mispronounced that, and [XXX](ph). Your claim is plausibly based on the documentary evidence. I discern not contradictions or omissions when comparing your testimony to the information on file.

[22]     You were able to testify credibly about the allegations and you provided corroboration to those allegations.  I find you established your allegations on a balance of probabilities, therefore I find you’ve established that you face mistreatment at the hands of your father, his family and your tribal community based on your circumstances of being a young female who refuses to undergo FGM and being forced into marriage on a balance of probabilities.

OBJECTIVE BASIS:

[23]     I find that your fear of persecution has an objective basis.  In that I found you to be credible and your claim is supported by the country condition documentation.  The national documentation package for Kenya at Section 5 speaks extensively of the difficulties faced by women in Kenya.

[24]     According to the documentary evidence forced marriage and FGM continue to occur in Kenya. Though it does appear that the practises are starting to fall out of favor, FGM and forced marriage reportedly occur in higher frequencies in rural areas as compared to urban areas. You testified that your family comes from such a rural area where your father tends to cattle.

[25]     In Item 5.3 of the NDP, titled FGM in Kenya Country Profile Update 2016, the item identifies that FGM rates correlates strongly with educational levels and location. The report notes that in your ethnic group, the Kalenjin, girls tend to undergo FGM at a later age with the majority being cut after the age of ten, which coincides with your testimony about it being proposed at the age of eighteen in preparation for marriage.  27.9 percent of Kalenjin women have undergone FGM according to a 2014 study which is cited in that same report.

[26]     You also provide articles as part of your personal disclosure at Exhibit 4 which speaks to some of the Kalenjin traditions relating to forced marriage and FGM.  In providing a cultural context for your allegations, the documentary evidence establishes and objective basis for your claim. I conclude that your fear of persecution as a member of a particular social group is well founded.

STATE PROTECTION:

[27]     The relevant case law establishes the presumption that the state is capable of protecting and providing adequate protection to its citizens.  In your case there is clear and convincing evidence which demonstrates that adequate state protection is not available to you.

[28]     You testified that on two occasions you attempted to turn to the police, in both cases the police were unhelpful and dismissive of your allegations.

[29]     Item 2.1 of the NDP notes human rights issues in Kenya including the lack of accountability in many cases involving violence against women, include rape and FGM.  Although legislation has been passed forbidding the practise of FGM in Kenya, issues relating to FGM continue.

[30]     Item 2.1 notes that authorities are reticent to get involved in matters seen as being of a domestic nature and are known to accept bribes.  Authorities continue to cite domestic violence as a leading cause of preventable and non accidental death for women during the year except in cases of death police officers generally refrain from investigating domestic violence, which they consider to be a private family matter.

[31]     The law makes it illegal to practise FGM per cured the services of someone who practises FGM or send a person out of the country to undergo this procedure.  The law also makes it illegal to make derogatory remarks about women who have not undergone FGM, government officials often practises being in public awareness programs to prevent the practise.

[32]     Nevertheless, individuals continue to practise FGM widely. Mixed support for the practise remains deep-rooted in some local cultures as well. Several reports cite that approximately twenty one percent of all adult women had undergone the procedure at some point in their lives in Kenya but that the practise has had, was heavily concentrated in a minority of communities.

[33]     For these reasons, I find that there is convincing evidence that adequate state protection would not be available to you.

[34]     I conclude that the presumption of state protection for you, in your particular noted circumstances has been refuted.

INTERNAL FLIGHT ALTERNATIVE:

[35]     Claimants must establish that they face persecution throughout their country of nationality. Nevertheless, I find that a viable internal flight alternative does not exist for you in Kenya.  You are a young woman of limited means with a [XXX] education.  You have attempted to find suitable alternatives in various cities noted above and have even spent some time sleeping outside out of fear of being found.

[36]     Item 5.5 of the NDP makes clear that there is not very much assistance given to single women looking for housing or employment either from the government or from NGO’s in many parts of Kenya.

[37]     You also testified about trying to find safety in both Nairobi and Mombasa.  In all of the locations mentioned you were located and threatened.  On several occasions you testified about barely escaping abduction. Although you have no evidence that it directly connects to your father, based on the information you’ve provided you believe it to be connected to your community and your refusal to undergo FGM.

[38]     I find sufficient grounds to conclude that relocating within Kenya would be unreasonable in your situation and I conclude that a viable internal flight alternative is not open to you in your country of origin.

CONCLUSION:

[39]     Based on the totality of the evidence I find you’ve established a well founded fear of persecution as a member of a particular social group and that you are a Convention refugee under Section 96 of the act.  Your claim for refugee protection is granted.

[40]     Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Kenya

2020 RLLR 57

Citation: 2020 RLLR 57
Tribunal: Refugee Protection Division
Date of Decision: February 24, 2020
Panel: Deborah Coyne
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Kenya
RPD Number: TB8-17416
ATIP Number: A-2021-00655
ATIP Pages: 000189-000193


DECISION

[1]       MEMBER: These are the reasons in decision, for decision in the claim of [XXX] who claims to be a citizen of Kenya and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. The claimant fears persecution due to her gender and her membership in a particular social group, as a woman facing risk of female genital mut-, mutilation and gender violence.

[2]       The Panel applied the Chairperson’s Guideline 4 Women Refugee Claimants Fearing Gender-Related Persecution in assessing the harm feared by the claimant.

Allegations

[3]       In her written and oral testimony, the claimant provided a very detailed account of entering into a forced marriage, enduring serious domestic violence, resisting her husband’s insistence that she undergo FGM and ultimately escaping from him and the va-, vigilantes he hired to ensure she complied but not before she was raped and violently assaulted. The police were of no assistance on at least three occasions when she approached them for help. Ultimately, she was able to obtain a TRV and came to Canada seeking refugee protection at the Port of Entry.

Determination

[4]       The Panel finds that the claimant is a member of, of a particular social group which is women at risk of gender violence and is therefore a Convention refugee under Section 96.

ANALYSIS

and Identity

[5]       The Panel was satisfied on a balance of probabilities that the claimant is a citizen of Kenya from the certified copy of her passport on the file.

Credibility

[6]       The claimant responded to all questions clearly and spontaneously in the English language. The Panel finds the claimant to be a credible witness. And her evidence was corroborated by and is consistent with the documents she submitted that the Panel finds credible. Notably, medical reports, statement of suppor-, statements of support and some photographs.

[7]       The Panel makes the following findings on a balance of probabilities. The claimant was born into the Kisii tribe in Kenya in which FGM is still practiced in young girls and women along with other traditional customs. For example, after her father died, his brother inherited the claimant’s mother as his wife. Her mother was forced to marry her brother-in-law who then insisted that her mother undergo FGM.

[8]       The claimant successfully pursued studies and became [XXX] and her step-father found a way to send her to study [XXX] at the [XXX] from 2008 to 2012. When she returned to Kenya, she started working at the [XXX]. In or about 2013 and 2014, she discovered to her horror that her step-father had promised her in marriage to a man who had secretly funded her university studies in the Philippines.

[9]       A summary of the next traumatizing fours years are set out in persuasive detail in the claimant’s written narrative. The claimant was forced into the marriage in [XXX] 2015, raped brutally by her husband and ordered to undergo FGM. Shortly after the marriage, she reported her spousal rapes and violence to the Nakuru Central Police Station at the suggestion of her doctor. The police mocked her and said that alleging spousal rape was a waste of their time. The FGM was scheduled for [XXX] 2015. The claimant escaped from her husband and the vigilantes he hired to ensure that she underwent FGM. She moved around and worked in different places. For example, Nairobi, Nakuru and then Kibera where she stayed with her aunt. The claimant went to the police again in or about [XXX] 2016 when she was forced to return to her husband but managed to escape again. They told her that resisting FGM was a family matter but that she should go to the Anti-FGM Organization. The claimant went to get help from the Anti-FGM Organization but had to find money to hire a lawyer.

[10]     Among other things, she lived undercover by wearing a burqa in [XXX], about [XXX] kilometres away from Nairobi. In [XXX] 2017, while she was recuperating from an [XXX] she was discovered by the vigilantes, raped and seriously injured. She went to the police. A detailed copy of the report is found in Exhibit 5. And there was also other documents such as the [XXX] dated [XXX] 20th, 2017 and so forth. After this ordeal, she was advised by her friend [XXX] who had witnessed the attack on her by the vigilantes to leave the country and she applied for her T-, TRV. She falsiv-, she falsified the existence of a common-law husband and a child and some other documents to ensure that she was accepted. I also note that there were corroborative affidavits for most of the incidents from her friend [XXX], her aunt [XXX], her mother, [XXX] and another childhood friend. All of these are in Exhibit 5.

[11]     So, on a balance of probabilities the Panel accepts that the claimant has a subjective fear of persecution because of her membership in a personal social group, women at risk of gender violence.

[12]     So, now I’m going to turn to the objective basis. The claimant testified that the traditional practice of FGM is rooted in Kenyan culture and the Kisii tribe. The United States Department of States, State report called the DOS report for 2018 on Kenyan human rights notes that human right issues in the country including the lack of accountability in many cases involving violence against women including rape and FGM.

[13]     Authorities cited domestic violence as a leading cause of preventable and non-accidental death for women during the year. Except in cases of death, police officers generally refrain from investigating domestic violence which they consider a private matter. With specific reference to FGM, the DOS report indicates and this is in, oh this is in still in 2.1, the law makes it illegal to practice FGM, procure the services of someone who practices FGM or send a person out of the country to undergo the procedure. The law also makes it illegal to make derogatory remarks about a woman who has not undergone FGM.

[14]     Government officials often participated in public awareness programs to prevent the pra-, the practice. Nevertheless, individuals practiced FGM widely particularly in some rural areas. According to a study by ActionAid Kenya published in October despite the legal prohibition on FGM, mis-supported the practice-, supporting the practice remain deep-rooted in some local cultures. The study concluded approximately 21% of adult woman have undergone-, had undergone the procedure some time in their lives. But the practice was heavily concentrated in a minority of communities.

[15]     The DOS report further states that there were also reports the practice of FGM increasingly occurred underground to avoid prosecution. The May 2018 report entitled Kenya and the Law of FGM which is Exhibit 5.10 states as follows FGM in Kenya continues to be carried out predominantly by traditional circumcizers for 74.9% of girls age 0 to 14. And 83.3% of women aged 15 to 49. There has been some concern over the increasing medicalization of FGM in Kenya. In recent years however, with claims that its risen to as much as 40 per-, 41% in some areas. And that medical professions-, professionals are performing FGM in homes, hospitals or temporary clinics.

[16]     According to the UK Home Office and this is exhibit or, sorry Item 1.4 of the NDP for Kenya, women and girls in Kenya in fear of FGM forma particular social group within the meaning of the refugee Convention. And it further reports that although it is against the law and in decline, FGM continues to be practiced in Kenya among most ethnic groups to varying extents. The report indicates that communities that practice FGM report a variety of social and religious reasons for continuing with it. Deeply-rooted customs linked to social and economic benefits are associated with FGM.

State Protection

[17]     The agents of persecution in Kenya are the claimant’s husband and his extended family and the vigilantes he hired to pursue the claimant. As noted above, the claimant approached the police with complaints and requested help on at least three occasions and was turned away. An extensive report entitled FGM in Kenya, this is Item 5.3 it’s dated 2016 so it’s actually longer than a sequel to it which is, was done in 2018. However, it, it finds that “While there has been progress in both legal and policy frameworks, implementation and enforcement remain a challenge largely due to a lack of resources, difficulties reaching remote rural areas and the limited capacity of law enforcement agencies”.

[18]     This is enforcing the Anti-FGM legislation and, and policies that are technically in place. The report further finds that there have been few prosecutions and low conviction rates across the country. Often even if survivors do report FGM they fail to attend court to give evidence. Finally, the report finds that intimidation and fear help to keep the practice secret and cases unreported.

[19]     Item 2.3 which is the 2018 Freedom of the World report for Kenya indicates that corruption continues to plague national and county governments in Kenya. And State institutions tasked with combating cor-, corruption have been ineffective. Item 2.5 which is the 2017-2018 Amnesty International report indicates that the authorities continue to use legal and administrative measures to restrict the activities of civil society organizations working on human rights and governance.

[20]     And finally, according to the 2019 Human Rights report which is Item 2.2, women are also vulner-, vulnerable to abuse from the State security forces that should be there to protect them. The Watch report, the Human Rights Watch reports further indicates that the Jack of accountability for serious human right violations perpetrated by security forces remains a major concern in 2018.

[21]     So, the Panel finds on a balance of probabilities and in the particular circumstances of this case, that the objective country evidence supports the conclusion that the Kisii tribe and the Kenyan government and security forces are too often complicit in the gender violence experienced by the claimant. The claimant has provided clear and convincing evidence that the State is unable or unwilling to protect her. Accordingly, the claimant has successfully rebutted the presumption of state protection.

Internal Flight Alternative

[22]     The claimant testified that she would be at risk in all regions within Kenya. And that her husband and his vigilantes might have the means and motivation to seek her out wherever she might live and work. The evidence that the Panel found credible indicated that her husband was able to find her on several occasions as she sought to escape him after their marriage. The Panel finds that relocation within Kenya would be unreasonable in the claimant’ s circumstances. And the Panel further finds that there is no viable IFA where the claimant could reside safely.

[23]     So, in conclusion the Panel finds that the claimant is a member of a personal, particular social group which is women at risk of gender violence. And is therefore, a Convention refugee.

———- REASONS CONCLUDED ———-

Categories
All Countries Kenya

2019 RLLR 132

Citation: 2019 RLLR 132
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2019
Panel: A. Lopes Morey
Counsel for the Claimant(s): Meagan Johnston
Country: Kenya
RPD Number: TB8-18669
ATIP Number: A-2021-00256
ATIP Pages: 000082-000086


DECISION

[1]       MEMBER: So, this is the decision in the claim for refugee protection put forward by, Mr. [XXX], who is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act, on the basis of your membership in a particular social group, as a gay man.

[2]       You allege, Sir, that if you return to Kenya, you would be at risk of persecution on the basis of your sexual orientation.

[3]       I find that you are a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act.

[4]       I find that, if you were to return to Kenya, you risk a serious possibility of persecution, on the basis of your sexual orientation.

[5]       I am satisfied you have proven your identity, on a balance of probabilities and I base that finding on the Kenyan passport, a copy of which is found at Exhibit 1.

[6]       I note that you were a credible witness today, during the hearing. Your testimony regarding your sexual orientation, including how you discovered it, how old you were and the relationship that you had in Kenya with, [XXX], was detailed, genuine and spontaneous, in my view.

[7]       Your testimony was consistent with your narrative from your Basis of Claim Form and I noted no omissions or any attempt to embellish your claim.

[8]       You provided credible testimony about your feelings when you discovered your sexual orientation, as well as, your reaction to that discovery. I note you testified with respect to your choice to join a seminary where you would be away from your family and community, in a boarding school, as you tried to overcome the feelings that you discovered you were having.

[9]       I found your most credible testimony to be when you described how [XXX] helped you to change your feelings about yourself and to help you accept who you are and your sexual orientation.

[10]     I note you described the relationship that you had with [XXX], in detail. So, you were able to explain how you met, how your relationship went from a friendship to a romantic relationship, your efforts to keep that relationship secret and what may have led others, especially the students around you, to suspect that you had a romantic relationship.

[11]     I note that testimony was consistent with your narrative and I did, again, find it spontaneous and detailed.

[12]     I find, therefore, you have established that you had a relationship with [XXX] in Kenya, as alleged.

[13]     You’ve also described your life here in Canada since you’ve arrived, including your involvement in various organizations, community organizations and your access to mental health support activities, which are support you to cope with your anxiety.

[14]     Your testimony about why these services are important to you was genuine and credible. I find that you take advantage of mental health services to help you manage that anxiety, as alleged and that your anxiety stems from your experience of threats and physical harm associated with your sexual orientation, in Kenya.

[15]     I note your claim was well documented, overall. First, I note that you have demonstrated you made efforts to contact the hospital where you were admitted in July of 2013, as a result of the physical attack that you underwent. I note the evidence is included in Exhibit 7.

[16]     In addition to that evidence, you were also willing and able to show me your cellphone today, which included an additional e-mail sent on December 1st of this year, again, requesting medical records from that hospital.

[17]     I think you have established that you made reasonable efforts to obtain your medical records in Kenya and I, therefore, draw no negative inference from the fact that they were not provided for the claim.

[18]     Given the circumstances and that you are no longer in touch with your family, as well as, the prevailing attitudes in Kenya towards homosexuals, I do not draw a negative inference from the lack of a letter of support from Kenya or individuals that you know in Kenya.

[19]     I note you were, however, able to provide a number of letters of support from individuals here in Canada who know you and who have met with you at various points on your journey in Canada, whether at community services or just establishing yourself in the community.

[20]     You’ve also included letters and documents corroborating your attendance at various community organizations here, such as, the 519 and Sherbourne Health and I note those documents are found at Exhibits 6 and 7.

[21]     Based on all of these considerations and the totality of the evidence before me, I find you have established that you are, on balance of probabilities, a gay man, as alleged and I find you have established you have a subjective fear.

[22]     The country condition documents before me are consistent with your allegations that there is a serious possibility you would face persecution in Kenya, were you to return, on the basis of your sexual orientation.

[23]     So, I make reference to the National Documentation Package, which is at Exhibit 3, as well as, the documents provided by yourself and your Counsel, which are found at Exhibit 5. I will note that there are consistent reports that individuals who are members of the LGBTQ community, in Kenya, face a serious possibility of persecution.

[24]     Items 2.1 and 6.1 of the NDP in particular indicate that same-sex intimate behaviour is criminalized in Kenya with a maximum penalty of 21 years imprisonment.

[25]     Item 2.1 further confirms that people have been detailed under those laws. There is evidence that from LGBTI organizations in Kenya that, the police more frequently use public order laws to detain people rather than the same-sex legislation. However, they do report that police frequently harass, intimidate or physically abuse LGBTI persons in custody, as well as, the fact that violence and discrimination against such individuals was widespread.

[26]     I find the overwhelming evidence indicates that there is a serious possibility of persecution for individuals of the LGBTI community, in Kenya and having taken those reports into account, I find you have established that your fear is well-founded.

[27]     With respect to state protection, I find that adequate state protection would not be available to you, were you to seek it in Kenya. There is clear evidence that, as mentioned, the police as an agent of the State can be one of the agents of persecution.

[28]     I note again, Item 6.4 of the NDP, reports that the police have harassed LGBTI persons or those believed to be so and have subjected some of these individuals to blackmail and rape.

[29]     I note additional indications in that item from a news report of June 2016, that persons of the LGBT community in Kenya can be legally tortured in order to find out if they are gay and that the high court has ruled that anal probe torture is legal and a reasonable way to prove the crime of homosexuality.

[30]     Therefore, I find that you have rebutted the presumption of state protection and based on your circumstances, as well as, the objective evidence, adequate state protection would not be forthcoming in your case.

[31]     For the same reasons, with respect to the State being one of the agents of persecution, I find that there is no internal flight alternative available to you inside Kenya.

[32]     Consequently, I find that you are a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act and I accept your claim.

[33]     CLAIMANT: Thank you.

[34]     MEMBER: You’re very welcome, Sir. I wish you all the best in Canada.

——— REASONS CONCLUDED ———-