2024 RLLR 13

Citation: 2024 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: April 24, 2024
Panel: D Coyne
Counsel for the Claimant(s): Alexander Fomcenco
Country: Kenya
RPD Number: TC3-40383
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A

DECISION

INTRODUCTION

[1]           These are the reasons for the decision in the refugee claim of XXXX XXXX XXXX XXXX, who alleges to be a citizen of Kenya, and is seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

[2]           This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the Act.

[3]           In deciding this claim, the panel has considered and applied the Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Gender Guidelines). All relevant factors, such as the social and cultural context in which the claimant found herself, along with the issues of state protection and country conditions, were examined through the lens of the Gender Guidelines. 

ALLEGATIONS

[4]           The allegations are fully set out in the claimant’s Basis of Claim (BOC) form. The claimant alleges that she faces a serious possibility of persecution in Kenya as a member of a particular social group – women at risk of gender violence. 

DETERMINATION

[5]           The panel finds that the claimant faces a serious possibility of persecution in Kenya because of her membership in a particular social group – women at risk of gender-based violence.  She is, therefore, a Convention refugee under section 96 of IRPA.

ANALYSIS

Identity

[6]           On a balance of probabilities, the claimant has established she is a citizen of Kenya based on the copy of her passport in Exhibit 1.

Credibility

[7]           Based on the documents in the file, including the claimant’s Basis of Claim narrative, the panel has noted no serious credibility issues. On a balance of probabilities, the panel finds the following allegations to be true:

[8]           The claimant was born in 1987 in XXXX, in Kenya. 

[9]           The claimant has an abusive father who is essentially untouchable because of his links to the Mungiki mafia.

[10]        The claimant experienced unspeakable sexual abuse from her father starting in 1998, that is set out in graphic detail in her narrative.

[11]        Despite having three children through two unsuccessful relationships with two separate men, and briefly being able to work in the UAE for a few months in 2019, the claimant was intermittently and continuously forced to return home to her father and the abuse, until finally able to obtain a TRV to flee to Canada in XXXX 2023.

[12]        The claimant reluctantly left her three young children with her mother, who was still in the same home as the claimant’s father.

[13]        The claimant arrived in Canada on or about XXXX XXXX 2023, and submitted her claim for refugee protection.

[14]        With the broad range and volume of refugee protection claims before the RPD, like all active participants in a complex administrative tribunal,  the panel seeks the best approach to balancing the interests of the claimant before the RPD , the legal protections provided by Canada pursuant to the Immigration and Refugee Protection Act (IRPA),  the broader Canadian public interest engaged by the particular circumstances of each case, and the Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the Act.

[15]        In the particular circumstances of this case, the panel finds on a balance of probabilities that the events as set out by the claimant in her narrative are credible, and it is not unreasonable that she or her agent applied for a TRV without mentioning the real reason for fleeing to Canada.

[16]        The panel therefore finds that the claimant’s lengthy narrative explaining her subjective fear of gender-based violence at the hands of her father was internally consistent, and plausible. There were no contradictions or omissions that go to the core of the claim. The panel finds that additional personal documents beyond those in Exhibits 1 and 4 were not necessary to come to its conclusion.

[17]        The panel finds, on a balance of probabilities, that the evidence establishes the claimant’s subjective fear of persecution from her father, and her subjective fear as a member of a particular social group – women at risk of gender-based violence.

Objective Basis

[18]        The panel has examined closely the objective documentary evidence on country conditions in the 31 August 2023 National Documentation Package for Kenya (Exhibit 3). The material supports the conclusion that Kenyan women face a serious risk of gender-based violence, including domestic violence.

[19]        Item 2.1 – the US Department of State 2022 Human Rights Report – confirms how women in Kenya are at high risk of gender-based violence and that there is no effective state protection. (pp. 30-32)

 Section 6. Discrimination and Societal Abuses

Women

Rape and Domestic Violence:

The law criminalizes rape of all persons, defilement (statutory rape), domestic violence, and sex tourism, but enforcement remained limited. The law’s definition of domestic violence includes sexual violence within marriage, early and forced marriage, FGM/C, forced wife “inheritance,” damage to property, defilement, economic abuse, emotional or psychological abuse, harassment, incest, intimidation, physical abuse, stalking, verbal abuse, or any other conduct against a person that harms or may cause imminent harm to the safety, health, or well-being of the person. The law does not explicitly criminalize spousal rape. ,,,,

The law provides a maximum penalty of life imprisonment for rape when the survivor is older than 18, although sentences were at the discretion of the judge and usually no longer than the minimum of 10 years (see section 6, Children). According to human rights groups, the government often did not enforce the law effectively, especially in poor or rural areas. Citizens frequently used traditional dispute-resolution mechanisms, including maslaha in Muslim communities, to address sexual offenses in rural areas, with village elders assessing financial compensation for the survivors or their families. They also used such mechanisms occasionally in urban areas. A lack of coordination between government agencies and ineffective implementation of the law often left victims of sexual assault without recourse or in direct contact with the perpetrator.

The NGO FIDA reported arrests and prosecutions of sexual violence cases remained low, even in cases in which survivors identified perpetrators, due to limited police resources to conduct investigations, insufficient evidence collection and handling mechanisms, and lengthy court proceedings, which made it difficult and expensive for survivors to pursue cases.  …  The report also documented cases of sexual assault, harassment, attempted rape, and other violent incidents. …

Authorities cited domestic violence as the leading cause of preventable, nonaccidental death for women. Except in cases of death, police officers generally refrained from investigating domestic violence, which they considered a private family matter.

[20]        The panel finds that the objective country documentation for Kenya establishes that the claimant’s subjective fear of persecution because of her membership in a particular social group – women at risk of gender-based violence, is well-founded.

State Protection

[21]        The panel finds that the documentary evidence establishes that Kenyan authorities do not provide adequate state protection to women at risk of domestic violence. The panel finds it objectively unreasonable for the claimant to seek the protection of the Kenyan state. The panel finds that the claimant has rebutted the presumption of state protection with clear and convincing evidence.

Internal Flight Alternative

[22]        The panel also finds that that the objective country documentary evidence establishes that Kenyan authorities operate similarly throughout the country, and the claimant faces a serious possibility of persecution throughout Kenya because of her membership in a particular social group – women at risk of gender-based violence. Therefore, viable internal flight alternatives are not available to the claimant.

CONCLUSION

[23]        The panel finds that the claimant faces a serious possibility of persecution because of her membership in a particular social group – women at risk of gender-based violence.  She is, therefore, a Convention refugee under section 96 of IRPA.

[24]        The claim is accepted.

——— REASONS CONCLUDED ———