2023 RLLR 176

Citation: 2023 RLLR 176
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2023
Panel: Kay Scorer
Counsel for the Claimant(s): Cyrus Haghighi
Country: Kenya
RPD Number: VC2-07705
Associated RPD Number(s): N/A
ATIP Number: A-2024-00894
ATIP Pages: N/A

 

DECISION

 

INTRODUCTION

 

[1] This is the decision of the Refugee Protection Division (the RPD) in the claim of XXXX XXXX XXXX (also known as XXXX XXXX XXXX) who is seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the Act).

 

[2] In coming to this decision, I have considered and applied the Chairperson’s Guideline 4 on Gender Considerations in Proceedings Before the IRB which offers guidance in recognizing women as members of a particular social group, and also with respect to other gender specific issues present in this claim. 

 

CLAIM HISTORY AND ALLEGATIONS

 

[3] The Claimant initiated her claim for protection in about April 2019. She did so under the name XXXX XXXX XXXX, and alleging she was a Somalia national. The initial claim for protection alleged tribal risk in Somalia. The Claimant identified herself as belonging to a minority clan and as a follower of Sufi.  

 

[4] On August 23, 2021, the Minister intervened in this claim to challenge the Claimant’s general credibility[1], identity, and program integrity. In the intervention package, the Minister provided a copy of a Kenyan passport, under the name XXXX XXXX XXXX. The Minister submitted that the Claimant was a citizen of Kenya. The Minister submitted that the Claimant had obtained a study permit through her Kenyan passport, and that the Claimant, more likely than not, had fabricated evidence with the intent to mislead. The Minister also submitted that the Claimant had no intention of putting forth the true information regarding her identity had it not been for the Minister’s intervention. 

 

[5] In response to the Minister’s intervention package, on September 17, 2021, the Claimant provided an amended narrative. According to the amended narrative, the Claimant confirmed she is a citizen of Kenya only, that her name is XXXX XXXX XXXX, and that she filed her initial claim as a Somalian person because she was advised by a community worker that Kenyan claims for protection are not believable, and she was afraid to return to her country of origin. 

 

[6] In the amended narrative, the Claimant alleges she is a citizen of Kenya and no other country. The Claimant alleges that her family forced her to XXXX XXXX XXXX XXXX (XXXX) when she was a child. The Claimant alleges she faces risk of forced marriage and family violence in Kenya on the basis of her gender. The Claimant alleges she has brought dishonour to her family as a result of her refusal to return to Kenya and marry a man of her family’s choosing. The Claimant fears that her family and the elders in her community will make an example out of her if she returns to Kenya to ensure no other girl ever dares to stand up for herself. The Claimant also fears persecution in Kenya on the basis of her ethnicity as a Somalian Kenyan. 

 

DETERMINATION

 

[7] I find the Claimant is a Convention refugee. I find the claimant has established a nexus to the Convention ground of membership in a particular social group based on her gender as a woman. I have therefore assessed this claim under section 96 of the Act. 

 

ANALYSIS

 

Credibility and Identity

 

[8] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.[2] However, this presumption does not apply to inferences or speculation. A presumption of truthfulness may be rebutted where the evidence is inconsistent with an applicant’s sworn testimony, or where the Board is unsatisfied with an applicant’s explanation for inconsistencies.[3] In some cases, it is the accumulation of contradictions, inconsistencies and omissions which may support a negative conclusion of the claimant’s credibility.[4] 

 

[9] Credibility and identity are central issues in this claim. This is because the Claimant initially presented a false identity and narrative in support of her claim. The Minister intervened on these issues and disclosed a Kenyan passport used by the Claimant to enter Canada, bearing a different name and nationality. At this point, the Claimant then came forward and stated that the initial claim was fabricated. The Claimant states she is a Kenyan national, with no status in Somalia, and that she faces risk of gender-based violence in Kenya as a survivor of XXXX and a victim of family violence.  

 

[10] Before assessing the impacts of the false claim as a Somalian national on the Claimant’s general credibility, I want to first address the allegation that the Claimant was forced to XXXX XXXX as a minor. In my view, a finding related to this allegation shapes the lens through which the evidence in this claim is to be assessed. 

 

The Claimant Experienced XXXX

 

[11] In the Claimant’s amended narrative, she details her XXXX experience of being forced to XXXX XXXX as a young person. The details of that experience need not be repeated here. In support of the allegation that she was forced to XXXX XXXX, the Claimant provided testimony and the following third-party documentation: 

 

[12] XXXX 2023 medical records from XXXX XXXX XXXX located on XXXX XXXX, Vancouver, confirming the Claimant’s previous experience of XXXX[5];

 

[13] A XXXX 2023 XXXX XXXX report requesting an XXXX related to Claimant’s experience of XXXX[6]; 

 

[14] A XXXX XXXX, 2023 XXXX report, received directly by counsel from the doctor’s office, confirming the Claimant’s previous experience of XXXX and detailing the ongoing health challenges related to that XXXX[7]. 

 

[15] The Minister states that the evidence indicates, on a balance of probabilities, that the Claimant was forced to XXXX XXXX.[8] I agree. I accept, on a balance of probabilities, that the Claimant was forced to XXXX XXXX, and that this experience was violent, XXXX, and has resulted in ongoing health issues. These findings are established by the objective, third-party medical evidence that has been submitted in support of this claim. 

 

[16] Minister’s counsel submits that a XXXX 2023 note from the XXXX, also contained in Exhibit 10, contains significant typographical errors and is not to be trusted. While I agree the medical note is very difficult to read, I do not find it undermines the authenticity of the XXXX’s other, detailed XXXX report from XXXX 2023. In my view, the XXXX 2023 note from the XXXX is not a formal document or official report. Instead, it appears similar to that of a physician notation, or charting of a patient interaction. While I agree it is relatively illegible, I do not agree that the existence of an illegible medical note undermines the authenticity of otherwise detailed and consistent objective evidence. I find the issues with the XXXX 2023 medical note are not related to its authenticity, but rather to its weight. I find this document bears little probative value to the claimant’s case and assign it no weight. 

 

[17] The remaining evidence before me, as listed above, includes objective assessments from medical professionals relating to the claimant’s experience of XXXX. While Minister’s counsel submits that the reports are largely based on subjective reporting of the experience, I disagree. For example, the XXXX XXXX report is largely based on the XXXX’s observations of the claimant. The XXXX report has four distinct sections, noted by the letters S, A, O, P. I find it reasonable to conclude that these letters refer to “subjective”, “assessment”, “objective”, and “plan”. My conclusion on the meaning of these letters is also supported by the content within each of these sections. For example, under the A section, the XXXX includes the words “alert”, “XXXX XXXX present” and “skin appears…”, which indicate the XXXX completed their own XXXX XXXX of the claimant. Under the O section, the XXXX notes “XXXX XXXX XXXX”. Under the P section, the XXXX notes the claimant should follow up with clinic. The XXXX report corroborates the severity of the XXXX inflicted on the claimant. 

 

[18] The same is true about the detailed report of the XXXX. The XXXX report contains a section entitled “XXXX” which reasonably infers the XXXX conducted an XXXX of the Claimant’s injuries. This section details the severe injuries and corroborate the claimant’s experience of XXXX. 

 

[19] As a result, I do not agree with Minister’s counsel that a majority of the medical reports are a subjective repetition by the Claimant of her experiences. Instead, I find large portions of both reports not only confirm that the Claimant XXXX XXXX, but also detail the violent nature of that XXXX relating to the injuries sustained by the Claimant. 

 

[20] Ultimately, I have before me credible evidence corroborating the Claimant’s previous experiences of XXXX. I find the Claimant has established on a balance of probabilities that she was forced to XXXX XXXX as a minor.  

 

The claimant’s identity as a Kenyan National 

 

[21] Proof of a claimant’s identity is of central importance to their claim for protection.[9] In the present case, I also find, on a balance of probabilities, that the claimant is a Kenyan national named XXXX XXXX XXXX. I find the claimant’s identity is established on the basis of the Kenyan passport in evidence. 

 

[22] The Federal Court has confirmed that identity documents issued by a foreign government are presumed to be valid unless evidence is produced to prove otherwise. Possession of a passport creates a prima facia presumption that the claimant is a national of the source country. 

 

In Ramalingam v. Canada (Minister of Citizenship and Immigration), Justice Dubé stated that identity documents issued by a foreign government are presumed to be valid unless evidence is produced to prove otherwise. The Court agrees with that statement but would qualify it by saying the following. If the Board finds, on the face of the documents, a number of inconsistencies, omissions or contradictions that are problematic enough to reasonably lead it to doubt the validity or authenticity of these documents, it is justified in concluding that the refugee claimant has not proven its identity [R.K.L. v. Canada (Minister of Citizenship and Immigration)]. The Board is not obliged to obtain expert evidence to show that a document is invalid [Allouche v. Canada (Minister of Citizenship and Immigration)].[10]  

 

[23] The Minister provided a copy of the passport used by the Claimant to enter Canada in the Minister’s intervention package. In the intervention package, the Minister submits that the case law about the genuineness of national passports supports a finding that the claimant is a Kenyan citizen and requests the Board find the claimant is, in fact, a Kenyan national.[11] Minister’s counsel reaffirms this position in post-hearing submissions.[12] Minister’s counsel submits that “the Claimant is, on a balance of probabilities, a citizen of Kenya by birth as she declared in her study permit application, amended BOC narrative (BOCA) and confirmed during her testimony.”[13]

 

[24] The Kenyan passport is presumed authentic. I have considered what, if any, impact the Claimant’s false claim has on the credibility surrounding her identity, including what, if any, impact the false claim has on the authenticity of the passport. The Claimant initiated her claim using a false name and providing a false narrative. This weighs negatively against the Claimant’s general credibility. That said, I find that the act of initiating a claim under a false name and narrative does not automatically demonstrate a propensity to create fraudulent third-party documents. The Claimant submitted no identity documents for the Somalian claim. Despite initiating a claim using a false name and narrative, I find this does not alone rebut the presumption of authenticity of the Kenyan passport. 

 

[25] In light of the above, I find the presumption of authenticity related to the Kenyan passport has not been rebutted. I find the Claimant is, on a balance of probabilities, a Kenyan national named XXXX XXXX XXXX. 

 

Conclusions on credibility and identity

 

[26] I accept that the Claimant was forced to experience XXXX as a minor. I also accept that XXXX is not a singular event of violence, but one that is lifelong and implicates significant continuing XXXX, including a subjective fear of ongoing harm at the hands of the Claimant’s family in Kenya. I also accept that the Claimant is a Kenyan national named XXXX XXXX XXXX. 

 

[27] In my view, the issues of the Claimant’s identity and her experiences of XXXX are determinative in this case. The two findings create a profile that, when considered in light of the country condition documents, establish a claim for protection under section 96 on a balance of probabilities, despite issues that may arise relating to the Claimant’s overall credibility.  

 

Well-Founded Fear of Persecution

 

[28] When assessing a refugee claim, I must look at whether the Claimant has a well-founded fear of persecution involving both the subjective fear element and a forward-facing objective basis for that fear. Based on all the evidence before me, I find on the balance of probabilities that the Claimant has a well-founded fear of persecution should she return to Kenya. 

 

[29] The definition of Convention refugee is forward-looking. In a claim for refugee status, the issue is not whether the claimant had good reason to fear persecution in the past, but whether, at the time the claim is being assessed, the Claimant has good grounds for fearing persecution in the future.  In this case, the Claimant has already been forced to XXXX XXXX. The central question before me is whether there is any further risk should the Claimant return to Kenya. I find there is. 

 

[30] The jurisprudence is clear that “…where the Board makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim.” In the present case, I find there is credible, independent evidence that supports a positive disposition of this claim. Even in the face of significant credibility concerns, I have found (and the parties have agreed) that the Claimant is a Kenyan national by the name of XXXX XXXX XXXX and that she was forced to XXXX XXXX as a minor. These two facts, in light of the country evidence of Kenya and the general understanding of the purpose of XXXX, are sufficient to establish a claim for protection under section 96 of the Act. My reasons are as follows. 

 

[31] The Claimant’s allegations of violence stem from her family and her tribe’s commitment to controlling her. This commitment is best evidenced in the past behaviour of her family and community in forcing significant violence on the Claimant as a child in the form of XXXX. While test for a well-founded fear of persecution is forward-facing, in cases like this – where incidents of past persecution are alleged – the Board has an obligation to consider those incidents because “evidence of past persecution is one of the most effective means of showing that a fear of future persecution is objectively well-founded.”[14] I find the past behaviour of inflicting XXXX on the Claimant reasonably demonstrates that the Claimant’s family and/or community would stop at very little in order to control the Claimant. I see no reason this commitment to harm the Claimant would diminish over the years, certainly given the Claimant has now disobeyed the family’s intentions of exercising control over her (as demonstrated in the forced XXXX) and claimed protection in Canada. 

 

[32] The threshold that the Claimant must meet to have her claim accepted under section 96 of the Act is not one of perfection. The Courts have been clear that the evidence before the Board must show only that there are “good grounds” for fearing persecution, and not that the persecution would be more likely than not to occur.[15] In this case, I find the Claimant’s family’s willingness to go to such extremes as to severely violate and assault the Claimant’s body as a minor, demonstrates a propensity and desire to harm the Claimant and seek to control her bodily integrity. I find this rises to the threshold of establishing there are good grounds for the Claimant believe there is a reasonable chance of further persecution should she return to Kenya.

 

[33] My findings are also supported by the objective country evidence in the National Documentation Package for Kenya. The country condition evidence corroborates the violence against women and girls remains problematic in Kenya. Non-government organizations (NGOs) reported rising numbers of women and girls killed due to gender-based violence. The NDP for Kenya, specifically within section 5, speaks extensively of the discriminatory practices faced by women in general in Kenya. According to the documentary evidence, forced marriage and FGM continue to occur in Kenya. It has been noted that despite the recent enactment of protections for women in Kenya, FGM remains endemic in Kenya.[16] There remains a high level of tolerance of gender-based violence that hinders the implementation of all measures undertaking by the state to combat such violence. 

 

[34] I find the Claimant continues to be at risk of persecution from her family and her community on the basis of her gender as a woman. I find the Claimant’s subjective fears are objectively well-founded and forward facing. 

 

State Protection

 

[35] The next element in my analysis is whether there is adequate state protection for the claimant in Kenya. While there is a presumption of state protection, this presumption can be rebutted with clear and convincing evidence that protection would not be forthcoming to the claimant.[17]

 

[36] I find that the claimant has rebutted the presumption of state protection in this matter. Although Kenya does have laws in place to deal with domestic violence against women and children, enforcement remains limited.[18] Except in cases of death, police officers generally refrained from investigating domestic violence, which they considered a private family matter.[19] The US DOS Report continues to note, in its list of significant human rights issues, a “lack of investigation of and accountability for gender-based violence”.[20] Further, the evidence confirms there is also a lack of investigation and accountability in gender in Kenya for gender-based violence. This sentiment is mirrored in the Gender Guidelines which notes that state protection analyses must consider socio-cultural factors which may impede operational effectiveness of laws.[21]

 

[37] The allegations before me must be considered in context. The claimant is a young woman who has experienced severe violence at the behest of her family. Her risk of family and cultural based, both issues that the documents confirm the police are both less likely to get involved, and less likely to take seriously. As a result, I find the presumption of state protection has been rebutted in this case. 

 

Internal Flight Alternative 

 

[38] The final issue is whether the claimant has a viable internal flight alternative (IFA) in Kenya. In order to determine whether an IFA exists, I must assess whether there is any location in Kenya in which the claimant would not face a serious possibility of persecution and whether it would be reasonable to expect them to move there.[22] At the hearing of this claim, I suggested Mombasa as a potential IFA location for the claimant. 

 

[39] In assessing an IFA, it is important to consider the intersectional factors including the profile of the claimant. The claimant in this case is a young, single woman. She has experienced severe violence in the past and continues to live with the XXXX of that violence. She would be unable to rely on family members for assistance in Kenya. In terms of the objective evidence, the NDP states that while a woman can settle without difficulty if she has money to pay for housing, settlements are generally unsafe, and that women without male support are likely to face difficulties because of high cost of living and limited job opportunities in Kenya.20 Women who lack support are likely to work in the informal sector with low pay and no social security benefits, which affects their ability to access housing and healthcare.[23] While Kenya has instituted several legal and policy reforms to respond to gender-based violence, women remain disproportionately disadvantaged in all aspects of public and civil life. In practice, legal reforms are not always operational. For example, while illegal under Kenyan law, widows are still disinherited, including through evictions from home and land.[24] Women tend to be poorer than men and have less access to capital and assets necessary for livelihoods.[25]Women also have less opportunities for formal employment.[26] Sources indicate there is no publicly funded support, such as health, income, employment and housing, for women without male support.[27] Overall, the evidence indicates that women are more likely to be unemployed, underemployed, and underpaid in Kenya.[28] 

 

[40] The objective evidence states that adequate housing in Kenya for all is far from a reality.[29] There are reports of landlords refusing to rent to single women.[30] Women in Kenya generally do not enjoy equality in relation to economic, social and cultural rights.[31] Kenya has ranked among the top 10 most unequal countries in the world, and the most unequal country in East Africa.[32] 

 

[41] When considering the objective evidence as it relates to women in Kenya, I find that on a balance of probabilities, it would be increasingly difficult for the claimant to secure employment, housing, and healthcare in Mombasa. The claimant would be returning as a young single woman, without any family support or assistance. This, when considered in the context of her ongoing XXXX and the objective country evidence noted above, renders any IFA unreasonable in light of the claimant’s particular circumstances. I find the claimant before me has unique vulnerabilities based on her previous experiences of XXXX that put her at heightened risk in country where woman already facing risk of oppression, marginalization, and violence.

 

[42] As a result, I find any proposed IFA In Kenya is unreasonable. 

 

CONCLUSION

 

[43] For the foregoing reasons, I find the claimant is a Convention refugee pursuant to section 96 of the Act. I accept her claim. 

 

——— REASONS CONCLUDED ———

 

 

[1] Exhibit 4.

[2] Maldonado v. Canada (1979), [1980] 2 FC 302.

[3] Lin v. Canada (Citizenship and Immigration), 2010 FC 183 at para 19, and Su v. Canada (Citizenship and Immigration), 2015 FC 666.

[4] Sary v. Canada (Citizenship and Immigration), 2016 FC 178.

[5] Exhibit 6, pages 2-5.

[6] Exhibit 6.

[7] Exhibit 10.

[8] Exhibit 11, Minister’s Submissions, at paragraph 88. 

[9] Najam v. Canada (Minister of Citizenship and Immigration), 2004 FC 425. 

[10] Kaur v. Canada (Minister of Citizenship and Immigration), 2005 FC 103. 

[11] Exhibit 4, Notice of Intervention and submissions, at para 66. 

[12] Exhibit 11, para 5: “The Claimant had previously submitted her passport to the Canadian visa office in Nairobi on XXXX XXXX, 2018 in support of an application for a study permit. The validity of the document would have been assessed by the Canadian visa office at the time of application”

[13] Ibid, para 8. 

[14] Natynczyk v. Canada (MCI), 2004 FC 914. 

[15] Adjei v. Canada (Minister of Employment and Immigration), 1989 CanLII 5184; Seifu, Eshetu v. M.E.I (FCA, no. A-277-82.

[16] NDP, item 1.6.

[17] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

[18] Exhibit 3.2, NDP for Kenya, item 5.1.

[19] Exhibit 3.2, NDP for Kenya, item 2.1.

[20] Exhibit 3.2, NDP for Kenya, item 2.1.

[21] Gender Guidelines, section 11.6.3-4

[22] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

[23] Exhibit 3.2, NDP for Kenya, item 5.5.

[24] Exhibit 3.2, NDP for Kenya, item 1.7.

[25] Exhibit 3.2, NDP for Kenya, item 1.13.

[26] Exhibit 3.2, NDP for Kenya, item 1.13.

[27] Exhibit 3.2, NDP for Kenya, item 5.5.

[28] Exhibit 3.2, NDP for Kenya, item 1.13.

[29] Exhibit 3.2, NDP for Kenya, item 1.7.

[30] Exhibit 3.2, NDP for Kenya, item 5.5.

[31] Exhibit 3.2, NDP for Kenya, item 1.13.

[32] Exhibit 3.2, NDP for Kenya, item 1.15.