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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 ———-