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 ———-