TA6-12004

RPD File No. / N° de dossier de la SPR : TA6-12004 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing 14 May 2008 Date(s) de l'audience Place of Hearing TORONTO, Ontario Lieu de l'audience Date of Decision 15 July 2008 Date de la décision Panel E. Joanne Sajtos Tribunal Counsel for the Claimant(s) Waikwa Wanyoike Barrister and Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) des tribunaux Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre XXXXX XXXXX, a citizen of Kenya,1 claims Convention refugee status by reason of her membership in a particular social group. Ms. XXXXX claims that she has a gender-related fear of persecution based on her brother-in-law's physical and emotional abuse. Ms. XXXXX is also claiming that she is a person in need of protection in accordance with section 97 of the Immigration and Refugee Protection Act (IRPA). Claimant's Allegations The claimant married XXXXX XXXXX in 1978, and together they had two sons. XXXXX XXXXX died in 1987. After the death of the claimant's husband, her brother-in-law, XXXXX XXXXX (XXXXX), forced the claimant and her sons to move out of their family home. The claimant relocated to XXXXX. In 2004, XXXXX contacted the claimant and informed her that he had joined the Mungiki, a political/religious group and a banned criminal organization in Kenya.2 As a result, XXXXX wished to take the claimant as his wife. The claimant refused to become his spouse, leading her to suffer physical and emotional abuse from XXXXX. The claimant obtained a Canadian visa on XXXXX, 20063, in order to attend the XXXXX XXXXX XXXXX, in Vancouver, British Columbia. She arrived in Canada on August 16, 2006, and requested refugee protection on August 23, 2006.4 Determination The Panel has determined that the claimant is not a Convention refugee by reason of a well-founded fear of persecution for reasons of her membership in a particular social group. Nor is the Panel satisfied that the claimant is a person in need of protection in accordance with sections 96 or 97(1)(a) and (b) of the IRPA. Analysis The claimant identified the agent of persecution as her brother-in-law, XXXXX. The claim in this case turns on the credibility of the claimant's written and oral evidence that she fears for her safety at the hands of her brother-in-law, should she return to Kenya. In making its determination, the Panel considered the Chairperson's Gender Guidelines5. According to the claimant's oral testimony, her husband died on XXXXX, 1987, which date is consistent with the evidence found in her Personal Information Form.6 The claimant provided a Certificate of Death, 7 purported to be that of her husband. When asked how she got this document, she stated that her sister XXXXX obtained it in 2006, at the registrar's office in Kenya. As to why the certificate indicated that it had been issued in the year 2000, she responded that this may have been a mistake. It was also noted that the date of death on the certificate was XXXXX, 1987,8 as opposed to XXXXX, 1987, and the location of death was in XXXXX, as opposed to the claimant's village to which she had earlier testified. The claimant was unable to explain these discrepancies. In addition, the following grammatical errors were found on the certificate, "District,hereby certify that this certificateis."9 When asked to explain the errors, the claimant was unable to do so. Given the myriad of discrepancies and mistakes in this document, the Panel has given it no evidentiary weight. In addition, the Panel has drawn a negative inference with respect to the claimant's testimony that her husband died in XXXXX 1987. Thus, the claimant has failed to establish the death of her husband, as alleged. According to the claimant's Personal Information Form, XXXXX joined the Mungiki in early 2004.10 The claimant's oral testimony was that she relocated to XXXXX one month after the death of her husband in 1987, and that she did not see XXXXX between 1987, and 2004, until he came to her home in XXXXX. In the claimant's Personal Information Form,11 she wrote that XXXXX came to her home XXXXX 2004, and told her that they were to get married and that she and her children were to join the Mungiki group. A few days later he returned, at which time he sexually assaulted and beat the claimant.12 In addition, the claimant wrote in her Personal Information Form13 that XXXXX returned "later" in 2004 and sexually assaulted her a second time. At the hearing, the claimant was asked when her brother-in-law first came to her home and she stated that it was in XXXXX 2004. She added that he came again with four men and she was physically assaulted before the end of 2004. She later testified that XXXXX returned and assaulted her on a second occasion in the fall of 2005. When asked if the claimant did anything to attempt to evade her brother-in-law, she stated that she moved three times, once in 1996, and twice in 1997. Confronted with the fact that the claimant had earlier stated that she had not seen XXXXX from 1987, until 2004, she then testified that she gets confused and that she did not see him in 1996, and 1997, as earlier stated; rather, she moved due to her job. The claimant did not provide an explanation for the other inconsistent dates found in her Personal Information Form14 and her oral testimony as to when she was approached by XXXXX. In order to confirm that she was sexually assaulted by him on two occasions as stated, the Panel asked if she had ever obtained a medical report and she stated that she had obtained medical reports for both sexual assaults. As to where they were located, her response was that she "forgot" them. The inconsistent evidence surrounding the dates of the alleged assaults, the fact that the claimant did not have medical documentation and her reasoning for not having this evidence, was not found to be reasonable or credible. The Panel has concluded that the claimant was not physically or sexually assaulted, as alleged, by her brother-in-law, XXXXX. The claimant provided a medical report, which is purportedly for her son XXXXX XXXXX 15 that states that on XXXXX, 2005, he was assaulted by attackers with a blunt object. The Panel notes that the medical report indicates that the injury resulted in "a total lose of the vision."16 Given the content of the medical report,17 it appears that the word "lose" should have been "loss." Asked how she obtained this report, the claimant stated that it was one of the documents sent to her by her sister XXXXX, who is located in Kenya. Yet, the Panel notes that the envelope which purportedly contained this document was sent from Dubai.18 The claimant was unable to explain why this envelope came from Dubai and not from Kenya. In addition, no individual named "XXXXX" is listed as a sibling on the Personal Information Form.19 With respect to this alleged event wherein the claimant's son was beaten, she wrote in her Personal Information Form that her son was returning home from college when, at a bus stop, he was beaten and "Before he had lost consciousness, he heard his assailants saying, that 'this young man and his mother have refused to join Mungiki group we must finish him off.'"20 When the claimant provided oral testimony, she indicated that her brother-in-law was one of the individuals who beat her son. As to why she had not written this in her Personal Information Form,21 her response was that she "forgot." The Panel is unable to accept that the claimant's son was beaten by XXXXX, as alleged. In the Personal Information Form,22 she did not indicate that he was one of the individuals who allegedly beat her son, and given the pivotal nature of this fact, one would expect that, had it occurred, she would have done so. In addition, the spelling mistake in the medical report,23 combined with the fact that it allegedly arrived from an individual located in Dubai and not Kenya, has persuaded the Panel that, this incident did not take place. The claimant also provided a letter from a Chief,24 whom she stated she reported to on two occasions, with respect to her brother-in-law's actions. When asked to name the Chief, she was unable to do so. The Panel notes that there is a spelling mistake in the body of the letter, wherein it states that the claimant "refused to join the out lowed Mungiki religious sect;"25 it appears that the correct word should be "outlawed." In addition, the Panel notes that this is also one of the documents that arrived from Dubai without explanation. Given the issues surrounding this document, the Panel is unable to conclude that it is authentic; thus it has been given no evidentiary weight. Finally, the claimant provided a letter from the Reverend,26 whom she claims was aware of her story while residing in Kenya. Noting again that this document allegedly arrived from Dubai without explanation and the fact that the letter offers no new information, the Panel has concluded that it is of no evidentiary value. Thus, the claimant has failed to provide documentation in support of her claim in accordance with Rule 7.27 The claimant provided two letters of support from a social worker,28 who has counselled the claimant in Canada. Given the Panel's findings, as noted above, the Panel is unable to conclude that there is a causal relationship with the findings of the social worker and the claimant's claim for refugee protection. When the claimant was asked when she first realized she had to leave Kenya, she stated that it was in XXXXX 2005. Yet, the Panel notes that she did not leave the country until XXXXX XXXXX, 2006. Her explanation for this was that she did not have the money required to leave sooner. Although the claimant had a visa to come to Canada that was valid on XXXXX, 2006, she did not use this visa for approximately two months, XXXXX, 2006. Nor did she provide a reason as to why she did not request refugee protection status for approximately one week after her arrival in Canada. Although the issue of subjective fear is generally not determinative, the Panel notes that the claimant delayed in departure and delayed in requesting refugee status, without providing reasonable explanations for either event. Thus, given the facts of this case, the Panel has given the claimant's inability to establish subjective fear substantial weight. The claimant has not provided any medical or credible documentation to corroborate her claim. In addition, pivotal parts of her testimony were not credible and her conduct was inconsistent with the element of subjective fear. Thus, the Panel finds that the claimant has failed to establish that she has a well-founded fear of persecution, should she return to Kenya. The Panel finds, based on a balance of probabilities, that the claimant has not established a well-founded fear of persecution by reason of her membership in a particular social group. Therefore, the Panel concludes that the claimant is not a Convention refugee. Given the lack of credibility of the material facts of this claim and having reviewed all of the evidence and representations, the Panel finds that the claimant has failed to establish that she meets the higher thresholds of a risk of harm, or a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture, upon returning to Kenya. Conclusion The Panel is not persuaded that the claimant is a Convention refugee or a person in need of protection in accordance with sections 96 or 97(1)(a) and(b) of the IRPA. Accordingly, after considering all of the evidence, the Panel rejects the claim of XXXXX XXXXX for refugee protection. (signed) "E. Joanne Sajtos" E. Joanne Sajtos 15 July 2008 Date REFUGEE PROTECTION DIVISION / VIOLENCE AGAINST WOMEN / FORCED MARRIAGE / INCONSISTENCY / EVIDENCE / RULES / PRODUCTION OF DOCUMENTS / DELAY IN LEAVING THE COUNTRY / FEMALE / NEGATIVE / KENYA 1 Exhibit R/A-2, includes the claimant's Kenyan passport, which the Panel has accepted as establishing the claimant's personal identity and country of origin. 2 Exhibit C-3, p. 51. 3 Exhibit R/A-2, Information received from Citizenship and Immigration Canada (CIC). 4 Exhibit C-1, Personal Information Form (PIF), p. 8. 5 Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act, Women Refugee Claimants Fearing Gender-Related Persecution, Immigration and Refugee Board, Ottawa, March 9, 1993; Update, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act. 6 Exhibit C-1, PIF, question 31, paragraph 3. 7 Exhibit C-2, p. 1. 8 Ibid. 9 Ibid. 10 Exhibit C-1, PIF, question 31, paragraph 5. 11 Ibid., paragraph 7. 12 Ibid., paragraph 7 and 9. 13 Ibid., paragraph 11. 14 Exhibit C-1, PIF. 15 Exhibit C-2, p. 3. 16 Ibid. 17 Ibid. 18 Exhibit C-6. 19 Exhibit C-1, PIF, p. 3. 20 Exhibit C-1, PIF, question 31, paragraph 15. 21 Exhibit C-1, PIF. 22 Ibid. 23 Exhibit C-2, p. 3. 24 Ibid., p. 6. 25 Ibid. 26 Ibid., p. 4. 27 Immigration and Refugee Board (IRB), Refugee Protection Division (RPD) Rule 7, SOR/2002-228. 28 Exhibit C-4 and C-5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : TA6-12004 7 RPD.15.7 (October 2007) Disponible en français