TC1-04279

RAD File / Dossier de la SAR : TC1-04279 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 4, 2021 Date de la décision Panel L. Gamble Tribunal Counsel for the person who is the subject of the appeal John W. Grice Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Appellant), a citizen of Kenya, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for protection. The Appellant has not submitted new evidence in support of this appeal and does not request an oral hearing before the Refugee Appeal Division (RAD).1 The Appellant asks the RAD to find him to be a Convention refugee or a person in need of protection. In the alternative, the Appellant asks the RAD to refer the matter back to a different member of the RPD for redetermination. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee.2 BACKGROUND [3] The Appellant alleges he fears for his life in Kenya at the hands of the XXXX XXXX, a criminal gang, due to his protest of local hiring practices at the former Governor XXXX XXXX Office. ANALYSIS [4] My role is to look at all the evidence and decide if the RPD made the correct decision.3 [5] The determinative issue for the RPD was credibility.4 The Minister intervened before the RPD on the basis of credibility, but the issues raised by the Minister relating to the Appellant's past immigration application to the United States of America was not the subject of comment by the RPD in its decision. The RPD found the Appellant had not established, on a balance of probabilities, that he was actively being sought by XXXX XXXX in relation to his protest over the hiring practices of the former Governor; that the attacks on the Appellant's friend, G.M.5 and the Appellant's four-year-old nephew, were related to the XXXX XXXX efforts to locate the Appellant; or that the XXXX XXXX had distributed threatening flyers or leaflets in relation to their search for the Appellant. Lastly, the RPD found the Appellant had not credibly established a forward-looking risk in Kenya, given the objective evidence that the former Governor had died in 2020; the RPD was not satisfied, on a balance of probabilities, that the new Governor would also seek vengeance against the Appellant for his perceived opposition to the former Governor, or that the former Governor's family would pursue the Appellant. [6] The Appellant raises four issues on appeal, namely: (1) the Panel erred in its assessment of credibility by relying on what is not said in the evidence and examining the evidence in a microscopic manner; (2) the Panel erred in its assessment of credibility by expecting corroborating evidence that the Appellant could not have reasonably obtained; (3) the Panel erred in its assessment of credibility through its assessment of the plausibility of events; and (4) that the Panel committed "other errors."6 Merits of the appeal Allegations of XXXX XXXX involvement [7] The RPD was not satisfied that the Appellant was actively being sought by XXXX XXXX: first, because it gave little weight to the copy of the letter the Appellant sent to the Governor's office-which was the basis for the Governor's interest in the Appellant-as the letter was undated and had no indication it was received by the Governor, and second, because the Appellant's testimony was that the XXXX XXXX verbally confronted the Appellant while he was alone, but he was not attacked. The RPD found this evidence undermined the Appellant's claim that the XXXX XXXX were actively seeking him for the purpose of killing him.7 [8] The Appellant argues that the RPD erred in impugning his credibility when limited weight was given to the scanned copy of the Appellant's complaint letter to the Governor simply because it was missing features that the RPD expected the letter to have.8 However, in the RAD's view, this is not an error, as the RPD did not fault the Appellant's credibility on this basis; rather, the RPD correctly found it could only give less, or limited, weight to the corroborative document because it was missing features like a date and proof of service or proof of receipt by the Governor's office. The absence of these features mean that the document is less valuable in corroborating the Appellant's allegations than it would be if it did have those features, therefore I cannot find that the RPD erred. [9] However, the RPD's reasons under this section do not identify any inconsistencies or omissions in the Appellant's evidence which would properly form the basis for a negative credibility finding. Therefore, I cannot agree with the RPD that the Appellant's uncontradicted evidence that he was verbally threatened and harassed by the XXXX XXXX on multiple occasions on the basis of his perceived opposition to the Governor and his hiring practices falls short of establishing the material elements of his claim, on a balance of probabilities. The Appellant benefits from the presumption of truthfulness with respect to his sworn testimony,9 and in absence of any reasons to displace that presumption, I must give weight to the allegations as recounted by the Appellant. Allegations of attacks after the Appellant left Kenya [10] The RPD reviewed the evidence relating to the fatal XXXX XXXX attack on the Appellant's friend, G.M., and accepted that the video provided supports the allegation of a brutal attack on a man, in public. However, the panel was not satisfied, "in light of the credibility concerns,"10 that the attack was relating to the Appellant, or the XXXX XXXX efforts to locate him, as alleged. As noted above, I have found that the RPD cited no material inconsistencies or omissions in the Appellant's evidence sufficient to displace the presumption of credibility, and therefore, I find it was an error for the RPD to reject the Appellant's oral evidence that this attack on G.M. was related to the fact that the Appellant had previously stayed with G.M. in order to avoid being located by the XXXX XXXX. As such, I accept this evidence as corroborative of the Appellant's allegations, and draw no negative inference therefrom. [11] The RPD also accepted, from a review of the corroborative evidence, that the Appellant's four-year-old nephew was assaulted in XXXX 2020.11 However, it rejected the Appellant's allegation that this assault was in relation to him and efforts to discover his whereabouts by the XXXX XXXX, principally because while one support letter and one affidavit from the Appellant's brother both mention the assault on his nephew, the support letters from the Appellant's parents (the child's grandparents) and the Appellant's sister (the child's mother) omitted mention of the assault in connection to the Appellant. The RPD accepted the Appellant's explanation for this omission from his sister's letter-namely that his sister was so traumatized by the assault that she did not wish to speak of it-but rejected his explanation of this omission from his parents' letters, which was simply that he did not know why they omitted it when they were asked to speak of all incidents involving the Appellant. 12 [12] The Appellant argues that the RPD erred in faulting the credibility of his allegation in respect of the assault on his nephew for the omission of this detail from his parents' letters. The Appellant states that the RPD erred by assuming his parents, the child's grandparents, would know about the assault, when there is no evidence to suggest that they have such knowledge.13 I agree with the Appellant. Absent any reason to believe the Appellant's parents have knowledge of the assault on his nephew, I find it was an error for the RPD to impugn the credibility of the Appellant's allegation on this basis. Given there remain no elucidated credibility concerns which would displace the presumption of truthfulness with respect to the Appellant's credibility, I therefore accept that the assault on his nephew occurred, and moreover, that on a balance of probabilities, there is no reason to reject the Appellant's assertion that this assault was perpetrated by a member, or members, of the XXXX XXXX, in relation to their efforts to locate the Appellant. While I, too, questioned the reference in the documentary evidence to the assault having been perpetrated by someone "well known" to the child14 and by "a minor well known to him,"15 the Appellant rightly points out that these terms are not mutually exclusive of a XXXX XXXX member being the perpetrator.16 In absence of evidence that is inconsistent with the Appellant's allegation, I find there is no reason to rebut the presumption of truthfulness which applies.17 [13] Lastly, the RPD considered the Appellant's allegation that the XXXX XXXX had distributed threatening flyers or leaflets in respect of their efforts to locate the Appellant after he left Kenya. While the RPD noted the Appellant's testimony that he had tried to get copies of the flyers but was unsuccessful, and noted that the support letters from the Appellant's three friends all corroborated the fact that flyers or leaflets were circulated, the RPD found this allegation was undermined by the omission of this fact from the support letters from the Appellant's family members. The RPD found the omission of this important detail from all four documents from the Appellant's family undermines the credibility of this allegation, and also undermines the weight that can be afforded to letters from the three friends of the Appellant. The RPD therefore concluded that the Appellant had failed to establish, on a balance of probabilities, that leaflets or flyers were dispersed in the community or received by the Appellant's family, as alleged.18 [14] The Appellant argues the RPD erred in assessing corroborating evidence for what it does not say, rather than what it does say, contrary to Canadian jurisprudence.19 The Appellant also points out that the RPD erred by giving less weight to the three letters that do mention the leaflets, on the basis that the leaflets are omitted from the family letters, despite raising no credibility concerns with respect to the three letters which do corroborate this allegation.20 I agree with the Appellant on both points. When looked at as a whole, there is no reason to discount the letters provided by the Appellant's three friends, all of which corroborate the existence of leaflets or flyers in respect of the Appellant after he left Kenya. While it is interesting that the Appellant's family members omit mention of this occurrence in their letters, Canadian jurisprudence is clear that corroborating evidence must be assessed for what it says, and not what it does not say.21 In any event, as noted above, the Appellant's testimony continues to benefit from the presumption of truthfulness absent any reason to rebut this presumption, and moreover, the Appellant has provided three letters from his friends which support the existence of these leaflets or flyers. Therefore, I draw no negative credibility findings from this point. Changes to political circumstances following the death of the Governor [15] The objective documents confirm that the Governor XXXX XXXX, against whose hiring practices the Appellant voiced concern and organized a protest, died from coronavirus in late 2020. When the Appellant was asked about his forward-looking risk now that there is a new Governor, he indicated that the new Governor is the former Deputy Governor, and that the two men are of the same political party, the Orange Democratic Movement (ODM), and therefore a perceived slight against the former Governor would also be considered a slight against the present Governor. The Appellant also indicated that the former Governor XXXX family remains influential, and would maintain a personal vendetta against him for having tarnished the family name. The RPD reviewed the documentary evidence, and found that the influence of the former Governor's family was dependant on Governor XXXX being in power, and therefore found the Appellant's allegation that they would maintain a vendetta against him is speculative.22 [16] For his part, the Appellant argues that the RPD erred in conflating the forward-looking risk assessment with an assessment of past risks. The Appellant states that the RPD did not accept that he would still be sought by the new Governor or former Governor's family, which focussed on past risk associated from his political demonstration against former Governor, instead of considering the possibility of the Appellant continuing his political demonstrations against the current Governor. While the Appellant, through his counsel, notes that he did not explicitly assert that he will be continuing his political demonstrations against the new Governor if he finds there are injustices to speak out against, it is evident in this testimony that the Appellant has an interest in politically opposing the ODM.23 [17] I have reviewed the Appellant's testimony, and also the specific excerpt cited in the Appellant's Memorandum, and find there is an insufficient evidentiary basis to support the Appellant's allegation that he faces a forward-looking risk based on the potential to continue to protest the new Governor if he observes injustices, or on the basis of political opposition to the ODM. The Appellant's submission in this regard appears to extrapolate from a very unclear comment made by the Appellant in testimony;24 and my own review of the testimony indicates several instances where the Appellant stated he feared retribution from the new Governor as political allies of the former Governor, without any suggestion that the Appellant had an interest in continuing his political opposition on any basis, were he to return to Kenya. [18] However, I am also cognizant that despite the death of the former Governor XXXX, it remains possible that having engaged the XXXX XXXX in the enforcement of his interest in harming the Appellant, the death of the Governor might not be determinative of the threat against him: in layman's terms, it is reasonable that once the XXXX XXXX were engaged in attempts to locate and punish the Appellant, there would be no going back. The Appellant's evidence is that he is actively sought by the XXXX XXXX, at the behest of former Governor XXXX, including via the distribution of leaflets among the community indicating that they are looking for the Appellant. I am willing to accept, on a balance of probabilities, that this has set a course of events in motion which would still, despite the death of former Governor XXXX himself, present a risk to the Appellant on a forward-looking basis. There is no suggestion that the former Governor XXXX revoked or rescinded his instruction to the XXXX XXXX to locate the Appellant for past personal transgressions against him, and I find it is reasonable that, once this instruction was dispersed among the membership of the XXXX XXXX, this would continue to pose a risk to the Appellant, were he to return. Therefore, I accept on a balance of probabilities that he would face a forward looking risk at the hands of the XXXX XXXX, if he were to return to Kenya. Objective basis [19] The Appellant's fear has an objective basis. He has stated that he is afraid to return to Kenya because he fears persecution at the hands of XXXX XXXX due to a number of factors: the XXXX XXXX repeated threats to him, their attack on his nephew where they assaulted the child to obtain information on the Appellant's whereabouts, and the murder of the Appellant's friend, G.M., for the purposes of locating the Appellant who had previously stayed with G.M. after receiving threats from the XXXX XXXX. The documentary evidence shows that the XXXX XXXX use violence in the communities where they exert control. The Kenya Human Rights Commission reports that the XXXX XXXX commits human rights violations under the guise of community policing in the XXXX district and that "there seems to be no clear distinction between the XXXX XXXX activities and [government-sponsored] community policing."25 Therefore, I accept, on a balance of probabilities, that the Appellant's claim has an objective basis. State protection [20] As noted above, the country condition evidence is rife with reference to connections between the XXXX XXXX, government officials, and police. The documents confirm that the police have been involved with dispersing demonstrations against the XXXX government and detaining the demonstrators.26 The Appellant's evidence is that he was informed that the police had been paid to target him in dispersing the demonstration he had organized against the hiring practices of then-Governor XXXX in XXXX 2018. The National Documentation Package (NDP) also indicates that the XXXX XXXX has: [T]ransformed itself by taking up the role of providing protection to community members, especially those involved in illegal activities ... [and] they became a ready weapon for hire by ... politicians or business people.27 It also speaks to the close connection between the activities of the XXXX XXXX, government and the police, in stating that: [t]he government particularly relies on the XXXX XXXX since the new constitution was passed in 2010. The new constitution requires criminals to be taken into court within a short amount of time and evidence is required to bring them to court. Often the police and government cannot get evidence in the amount of time required by the constitution and rely on [community policing type] XXXX XXXX groups to extract information or proof from a suspect, which often involves torture ... This evidence will be used to bring a suspect to trial.28 Therefore, I find it reasonable that the Appellant would not seek state protection in respect of the threats he received by the XXXX XXXX, and that adequate protection would not be forthcoming to him if he were to seek it, in light of the circumstances particular to the Appellant and his past experience with the police. Internal Flight Alternative (IFA) [21] The documentary evidence states that the purpose of the XXXX XXXX is to help enforce the law and operate alongside local administrators, and also that the XXXX XXXX is "one of the biggest and most notorious gangs in Kenya."29 The NDP also states that the XXXX XXXX are "officially tolerated" by the state, and the government does not give protection to victims, as often, the government is the one ordering or is aware of XXXX XXXX activities. Both mutually benefit from each others' activities and are usually always aware of what the other is doing. The government in particular benefits as it gets around the formal justice system.30 Moreover, the Appellant has provided documentary evidence which speaks to the reach of the XXXX XXXX into other parts of Kenya, including specifically Mombasa.31 Given the close connection between the XXXX XXXX and the state, including the police and government officials, I find that the Appellant would not have a viable IFA within Kenya. CONCLUSION [22] For the reasons above, the appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act, I set aside the determination of the RPD and substitute my own decision that the Appellant is a Convention refugee on the basis of his perceived political opposition to the former Governor XXXX. (signed) L. Gamble L. Gamble October 4, 2021 Date 1 Exhibit P-2, Appellant's Record, p. 263. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, at para. 111(1)(b). 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 4 Exhibit RPD-1, RPD Record, RPD Reasons, p. 4, para. 4. 5 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 6 Exhibit P-2, Appellant's Record, p. 266, para. 6. 7 Exhibit RPD-1, RPD Record, RPD Reasons, pp. 5-6, paras. 9-12. 8 Exhibit P-2, Appellant's Record, pp. 268-269, para. 13. 9 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). [Maldonado] 10 Exhibit RPD-1, RPD Record, RPD Reasons, p. 7, para. 16. 11 Ibid., p. 8, para. 17. 12 Ibid., paras. 18-20. 13 Exhibit P-2, Appellant's Record, p. 276, para. 32. 14 Exhibit RPD-1, RPD Record, Exhibit 9, p. 265. 15 Ibid., p. 266. 16 Exhibit P-2, Appellant's Record, pp. 275-276, para. 31. 17 Maldonado, supra, endnote 9. 18 Exhibit RPD-1, RPD Record, RPD Reasons, pp. 9-10, paras. 21-24. 19 Exhibit P-2, Appellant's Record, pp. 268-269, paras. 12, 15, citing Bagri v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 8138 (FC) at para. 11, and Plaisimond v. Canada (Citizenship and Immigration), 2010 FC 998 (CanLII), at para. 82. 20 Ibid., pp. 269-270, para. 16. 21 Mahmud v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 8019 (FC), at paras. 11-12. 22 Exhibit RPD-1, RPD Record, RPD reasons, p. 10, para. 25. 23 Exhibit P-2, Appellant's Record, pp. 276-277, paras. 34-25. 24 Ibid. 25 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Kenya, (30 September 2020), Item 7.6, Response to Information Request, KEN104629.E, p. 14. 26 Exhibit RPD-1, RPD Record, Exhibit 8, pp. 151-154. 27 Item 7.6, op. cit., p. 4. 28 Ibid., pp. 3-4; see also Exhibit RPD-1, RPD Record Exhibit 13, pp. 320-321. para. 23. 29 Item 7.6, op. cit., p. 2. 30 Ibid., p. 17. 31 Exhibit RPD-1, RPD Record, Exhibit 15, p. 358. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-04279 RAD.25.02 (May 19, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (May 19, 2021) Disponible en français