Date: 20050119
Docket: IMM-10068-03
Citation: 2005 FC 72
Ottawa, Ontario, this 19th day of January, 2005
Present: The Honourable Justice James Russell
BETWEEN:
CATHERINE WAITHERA NDERITU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") under s. 72(1) of the Immigration and Refugee Protection Act S.C. 2001, c.27 ("IRPA"), dated November 18, 2003 ("Decision"). The Board determined that the Applicant was not a Convention Refugee and was not a person in need of protection.
BACKGROUND
[2] The Applicant, Catherine Waithera Nderitu, is a 20-year-old citizen of Kenya.
[3] She claims to have a well founded fear of persecution as a women being forced to undergo female genital mutilation ("FGM"). She claims that her uncle, a member of the Mungiki sect, is her persecutor.
[4] The Applicant grew up in Nairobi, Kenya. She joined the Democratic Party of Kenya in January 2002. She was computer literate and became active in the DP.
[5] Her uncle is an active member of KANU, the ruling party of Kenya. The Applicant says that, in February 2002, he joined the Mungiki sect, which is made up of supporters of KANU who seek to eliminate the opposition vote. The Mungiki also practice male and female circumcision, and attempt to force circumcision on un-circumcised persons, particularly females.
[6] The Applicant says that, on March 4, 2002, the Mungiki attacked the inhabitants of Kariobangi South Estate, which is primarily occupied by the Luo ethnic group. The Luo support the DP. The Mungiki believe that an un-circumcised man cannot be a leader.
[7] In June of 2002, the Applicant was accepted to a Canadian school.
[8] On July 30, 2002, the Applicant says her home was attacked by her uncle and four other Mungiki. The men accused her father of keeping un-circumcised women in the house and beat him. The men then grabbed the Applicant's mother and dragged her into another room. The Applicant says she was knocked unconscious by one of the men. When she came to, she says she saw her mother lying in a pool of blood; her mother had been forcibly circumcised.
[9] She says that her mother was hospitalized from July 31, 2002 until August 14, 2002. She provided a letter from Cainito National Hospital affirming the hospitalization.
[10] The Applicant says that her father told her that her uncle had threatened to return the following day to do to her what he had done to her mother. The Applicant says she fled and went to live on the streets of Nairobi.
[11] During her time on the streets, she was in contact with her mother who told her that her uncle was looking for her. She decided she had to leave the country. With the help of her brother-in-law, she applied for a student visa on August 14, 2002. She obtained the visa on September 9, 2002, and left the country on September 17, 2002.
[12] The Applicant says she called her mother on October 10, 2002, and found out that her uncle had burnt down her father's home in Nyeri.
[13] The Applicant applied for refugee status in Canada on October 3, 2002.
DECISION UNDER REVIEW
[14] The Board found that the Applicant was not a Convention refugee or person in need of protection within the meaning of s. 97(1) of IRPA. The Board based its Decision on the Applicant's credibility and the availability of a viable Internal Flight Alternative.
[15] The central issue, in the Board's view, was the Applicant's credibility. The Board raised a number of concerns with respect to the Applicant's story, PIF, and oral testimony:
(a) the attack on the Applicant's mother, and the plausibility of the uncle's threat;
(b) the Applicant's mother's hospitalization;
(c) the Applicant's June 2002 acceptance to a Canadian school; and
(d) the documentary evidence relating to police protection in Kenya.
[16] The Applicant said, in oral testimony, that the Mungiki make an example of mature women in the hope that younger women will undergo the circumcision process willingly.
[17] The Board, referring to a three month ultimatum issued by the Mungiki in 2002, for men and women to become circumcised, found it implausible that the Applicant was not forcibly circumcised at the same time as her mother. The Board went on to find that, on a balance of probabilities, the Applicant was not targeted by her uncle, otherwise she would have been circumcised at the same time as her mother.
[18] The second factor that the Board used to assess the Applicant's credibility was the inconsistency between her PIF and a letter from the Cainito National Hospital. Her PIF does not mention that her mother was hospitalized from July 31 to August 14 2002. The Applicant explained in oral testimony that she was not sure if she would be able to obtain a medical report from the hospital. The Board did not find the explanation reasonable because the Applicant stated that her father was given a discharge form when her mother was released from the hospital. The Board did not see any reason why the Applicant would not be able to obtain a report. She did obtain a letter from the hospital. This fact was omitted from her PIF. Accordingly, the Board gave little or no weight to the letter.
[19] The third basis for lack of credibility was temporal. The Applicant testified that she had been accepted at a Canadian school in June of 2002. However, her student visa application was made on August 14, 2002. If she was accepted in June, she must have applied before June, and before the incident with her mother happened. When asked why she applied before June 2002, the Applicant said that her mother made attempts for her to flee Kenya before any possible harm could occur. The Board did not find this explanation to be reasonable and concluded it was a fabrication to bolster her claim.
[20] As regards the police, the Applicant was asked if her mother's circumcision was reported, and she replied "yes, but not immediately." She says that the police told her father they would not take any action because it was a domestic matter. Similarly, when her father reported that his house was burnt down, the police told him, once again, that no action would be taken because it was a domestic matter. The Board found the police inaction inconsistent with the documentary evidence, which shows that the police do take action against the Mungiki. The Board cited occasions where the Mungiki have been arrested or detained, even though it acknowledged that there were also instances when the police did not take action. However, in the majority of incidents, the police acted on complaints against the Mungiki. The Board found that, although the police were not always effective in Kenya, they were making serious efforts to control the activities of the Mungiki.
[21] The Board found, on a balance of probabilities, that the Applicant's father did not approach the police for assistance.
[22] The Board then went on to address the issue of state protection. It cited Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780 (F.C.T.D.), which, at para. 7, follows Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189, also at para. 7:
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today; its victims, however much they may merit our sympathy, do not become convention refugees simply because their governments have been unable to suppress the evil. Where, however, the state is so weak, and its control over all or part of its territory so tenuous as to make it a government in name only, as this Court found in the case of Zalzali v. Canada (Minister of Employment and Immigration), a refugee may justly claim to be unable to avail himself of its protection. Situations of civil war, invasion or the total collapse of internal order will normally be required to support a claim of inability. On the other hand, where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.
[23] The Board went on to cite Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at para. 50, to confirm that, in the absence of a complete breakdown, a state is presumed to be able to protect a claimant. The Board found that Kenya has not suffered a complete breakdown and, therefore, the Applicant had not discharged the burden of proving that the state was unable to protect her.
[24] After discussing state protection, the Board went on to discuss the possibility of an IFA for the Applicant. The Board, relying on documentary evidence, noted that the Mungiki are active in the Nairobi area, the Rift Valley, and the central eastern provinces of Kenya. However, they are not active in the northeastern and coastal provinces. The Board preferred the documentary evidence to that of the Applicant, who had said that the Mungiki are active all over Kenya.
[25] The Board suggested Mombassa, Kenya's largest city, as an IFA. The Board found no references in the documentary evidence to Mungiki attempts to disrupt life in Mombassa. The Board found no more than a mere possibility that the Applicant's uncle, or the Mungiki, would target her in Mombassa.
ISSUES
[26] The Applicant raises two issues with regard to the Board's Decision:
(a) did the Board err in law by ignoring and failing to understand evidence in its finding the Applicant was not credible; and
(b) did the Board err in law in that the Decision and the reasons are, in themselves, confusing, since the Board found the Applicant not to be credible, then found her testimony credible enough to rely upon as a basis for dismissing her claim?
ARGUMENTS
Confusion in Decision
[27] The Applicant submits that the Board's Decision itself is confusing in that it impugns her credibility, then proceeds to use aspects of her story to find adequate state protection.
[28] The Respondent counters with the argument that the Decision is not confusing. The Board completed its credibility assessment, and then proceeded with an analysis of state protection and IFA. The further assessment is common practice for the Board. The Respondent says that the Board, after giving reasons for its negative credibility assessment of the Applicant, then proceeded to analyse the availability of state protection and IFA. This practice is not inconsistent with the Board's credibility findings. Such an analysis is often conducted assuming the Applicant's allegations to be true, so that, at the end of the day, if the explicit credibility findings cannot stand, the Court can move on to review state protection and IFA findings.
[29] The Applicant says that, if the Board had truly decided that she was not credible, and that she had fabricated her claim, there was obviously no reason to go on and discuss the availability of state protection or the possibility of an IFA.
[30] The Respondent argues that the Board, in light of the extensive documentation pertaining to the issue of state protection before it, performed the assessments of state protection and IFA and found that the Applicant had failed to show that the Mungiki were present and active in certain areas of Kenya, because there was insufficient evidence in the documentation. The Respondent says that the Applicant has failed to show that there was insufficient evidence before the Board to come to its findings, or to show why the findings are perverse or capricious.
Failure to Give Adequate Reasons
[31] The Applicant also submits that the Board failed in its duty to state its reasons for rejecting the Applicant's claim in clear and unmistakable terms (Hilo v. Canada (Minister of Employment and Immigration, [1991] F.C.J. No. 228). In Hilo, the Federal Court of Appeal, at para. 7, made the following comments about the selective treatment of testimony:
[T]he board cast doubt on the appellant's credibility. Nevertheless, one paragraph later, the board finds his evidence credible enough to rely on it as the basis for dismissing one component of his claim of refugee status. This selective treatment in respect of various segments of the appellant's testimony is not calculated to enhance one's confidence in the board's assessment of the appellant's credibility.
[32] The Respondent says that, because of the serious credibility questions that arose and the implausibilities found in her PIF and testimony, the Board was not persuaded that the Applicant was targeted by her uncle and the Mungiki.
[33] The Respondent also says the Board carefully outlined its findings and gave clear reasons. The Board is entitled to make reasonable findings based on implausibilities, common sense, and rationality (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732).
[34] Further, the Respondent notes that the Board can make an adverse credibility decision on the basis of contradictions and inconsistencies in the Applicant's story, or on the basis that it is simply implausible. (Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (F.C.A.); Leung v. Canada (Minister of Employment and Immigration) (1990), 74 D.L.R. (4th) 313).
[35] The Respondent also argues that the Board, as the primary finder of fact, is even entitled to reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole (Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.)).
Ignoring and Misunderstanding Relevant Evidence
[36] The Applicant says that the Board gave the letter from the hospital no weight because there was no mention of the letter in her PIF. She submits that hospitalization was the next logical step. She says in her PIF that she came home to find her mother lying in a pool of blood, having been forcibly circumcised. The Applicant says it is obvious that a person who has just been forcibly circumcised would require hospitalization. Hence, a negative credibility assessment cannot be made against her simply because hospitalization was not mentioned in her PIF. She says it was patently unreasonable for the Board to impugn her credibility based on her failure to mention her mother's hospitalisation in her PIF (Owusu-Ansah v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 442 (F.C.A.).
[37] The Respondent replies that the credibility findings made by the Board were reasonably open to it. Those findings were carefully outlined by the Board in its reasons.
[38] The Applicant goes on to argue that the Board erred in considering the Mungiki sect, in its entirety, as her persecutor. She says that her persecutor is her uncle, who happens to be a member of the sect. The Applicant argues that the documentary evidence, and the analysis undertaken by the Board regarding state protection, erroneously used the Mungiki sect as its base. She says the documentary evidence does confirm the state's inaction when violence against women is in the context of a particular family member. She cites an Amnesty International report, which says, in part:
The family is viewed by many as a private domain in which the authorities should not interfere. A human rights lawyer told Amnesty International, "Kenya is a patriarchal society, where parliament is male-dominated, and these [FGM] are issues that are deemed to be a family matter."
Most police officers regard violence in the home as a domestic matter, and enforce and uphold discriminatory attitudes against women ... Women who seek police intervention are often embarrassed, ridiculed, verbally abused, and made to feel as if they are wasting police time.
[39] The Applicant submits that the Board erred when it stated that the Applicant's evidence "is not at all in accordance with the documentary evidence before the panel." She says that the Board misunderstood the basis for the Applicant's claim for refugee protection, misunderstood the documentary evidence, and ignored relevant evidence that was properly before it.
[40] The Respondent takes the position that the Board fully considered all the evidence before it, and recognized that, while some problems still remain, state protection is available for a person in the Applicant's particular circumstances, having regard to the overall conditions in Kenya. The Respondent goes on to note that the Board is a specialized tribunal with expertise in its field, and that the Court should not re-weigh the evidence, or substitute its view for that of the Board (see Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875; Husyn v Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1218 (F.C.A.); Pushpanathan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1207 (F.C.T.D.))
IFA Assessment
[41] The Applicant finally submits that the Board's assessment of an IFA was unreasonable. She says that the Board's reasons that she is "well qualified" and that her parents are supportive of her are overly simplistic. She says that the Board did not consider her emotional state, or the accessibility of Mombassa (where the Board found an IFA) to her persecutors, specifically her uncle.
[42] The Applicant also re-iterates the findings from the Amnesty International report that Kenya is a patriarchal society. That report also states that "women's poverty, coupled with lack of alternative housing options, makes it difficult for women to leave violent family situations." The Applicant says that, once again, the Board erred by ignoring relevant evidence.
[43] The Respondent says that the Applicant's arguments are related to changed country conditions, and cites Yusuf v. Canada (Minister of Employment and Immigration) [1995] F.C.J. No. 35 (F.C.A.) at para. 2 for the following:
We would add that the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation of a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of a return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful" "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from s. 2 of the Act: does the claimant now have a well founded fear of persecution? Since there was in this case evidence to support the Board's negative finding on this issue, we would not intervene.
[44] The Respondent says that, based on the evidence before it, the Board acted reasonably in finding an IFA for the Applicant in Mombassa, and that the Board acted reasonably in finding adequate state protection for the Applicant in Kenya.
ANALYSIS
[45] At the hearing of this matter on October 21, 2004 in Toronto, counsel for the Applicant conceded that there were problems with the evidence provided by the Applicant but that, nevertheless, the Decision could not stand on the credibility ground alone because the Board had contradicted itself on credibility issues and, in fact, provided no clear basis for the Decision. In other words, the Applicant says that the state protection and IFA reasoning of the Board is flawed and the Decision as a whole does not contain a clear indication of grounds for refusing the Applicant's claim.
[46] This was a brave and able attempt by counsel for the Plaintiff to salvage the application, because there certainly are serious credibility issues associated with the Applicant's evidence. If the Decision establishes credibility as a distinct ground, I do not believe the Board's findings can be questioned, and the Decision must stand. If credibility is a basis for the Decision, there is no point in going any further to examine the Board's treatment of state protection and/or IFA.
[47] The Decision itself is divided into two major components: one deals with "Credibility" and the other with "Internal Flight Alternative (IFA)". Under the Credibility section, the Board refers to the documentary evidence on state protection to question the Applicant's assertion that her father did not approach the police for assistance because Kenya does not offer protection in her circumstances.
[48] The Board states at the beginning of its reasons that the "central issue in the claim is, whether it is credible that the claimant's uncle and the Mungiki were targeting her to forcibly circumcise her and whether state protection is available to the claimant." So there is some confusion as to how state protection and IFA are connected in the Decision, and how state protection is connected to credibility. The Board could certainly have done a better job of distinguishing the separate grounds for the Decision.
[49] However, looking at the Decision as a whole, I am satisfied that credibility is a separate and distinct ground. The Board actually says on page 9 of the Decision that "Given that the panel found the claimant's claim not credible, the panel finds there is no basis for a claim under sub-section 97(1) of the IRPA." I am satisfied that, although the Board does not specifically say so, it considered IFA as a separate ground in the sense that, even if the Applicant's story could be believed, she still had a reasonable IFA available to her in Mombassa. The discussion of state protection and IFA in this case does not contradict or vitiate the credibility concerns.
[50] There were serious credibility concerns in this case and the Board refers to them and gives clear reasons for rejecting the Applicant's assertion that she had been, and would be, targeted by her uncle and the Mungiki sect or tribe. The Applicant has raised no argument to convince the Court that the Board's findings on credibility were not well-founded or were patently unreasonable, or even unreasonable. There were serious problems with the central facts of her story on the persecution she said she faced.
ORDER
THIS COURT ORDERS that
1. The Application for judicial review is dismissed.
2. There is no question for certification.
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JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10068-03
STYLE OF CAUSE: CATHERINE WAITHERA NDERITU v. MCI
PLACE OF HEARING: Toronto, Ontraio
DATE OF HEARING: OCTOBER 21, 2004
REASONS FOR ORDER: RUSSELL J.
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor Toronto, Ontario |
FOR THE APPLICANT |
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Toronto, Ontario |
FOR THE RESPONDENT |