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:
- “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).
- “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.
- 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.
- 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.
- 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.