TB9-19003

RAD File / Dossier de la SAR : TB9-19003 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 Ottawa, ON Appel instruit / entendu à Date of decision October 29, 2019 Date de la décision Panel Delia Lewis Tribunal Counsel for the person who is the subject of the appeal Marvin M Moses 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 her claim for refugee protection. [2] The Appellant alleges a fear of persecution in Kenya based on a history of domestic violence. She claims that her husband, whom she married in 1987, has abused her physically and verbally for many years. The Appellant fled Kenya shortly after the drowning death of her third child because she believed her husband was responsible for his death and his abuse of her had escalated. [3] The RPD found that the determinative issues in this claim were credibility and the availability of an internal flight alternative (IFA). The Panel determined that material aspects of the Appellant's testimony were not credible and that she had a viable IFA in Kenya. The Appellant is seeking to have new evidence admitted and submits that the RPD erred in its credibility assessment, misconstrued the evidence, and had unreasonable preconceptions about her domestic violence claim. DECISION [4] I have conducted an independent assessment of the appeal. For the reasons that follow, I find that the RPD erred in its credibility and IFA assessments. Therefore, I find that the Appellant is a Convention refugee and set aside the determination of the RPD. ANALYSIS Role of the RAD [5] The Refugee Appeal Division (RAD) reviews RPD decisions on a standard of correctness. In limited circumstances, the RPD may have a meaningful advantage over the RAD in assessing evidence that was before the RPD. In those cases, the RAD will show deference to the RPD. In this appeal, I have applied the correctness standard unless specifically stated otherwise. Admissibility of New Evidence and Oral Hearing Request [6] Pursuant to s. 110(4) of the IRPA an appellant may only present new evidence that arose after the rejection of their claim, that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection. The appellant must make full submissions in their Appeal Memorandum concerning how any proposed new evidence meets the requirements of s. 110(4) and how the evidence relates to their claim under RAD Rule 3(3)(g)(iii). When evaluating whether new evidence is admissible, if evidence passes the s. 110(4) test, the RAD must also consider the factors from Raza/Singh1 which are whether the evidence is credible, capable of proving a fact relevant to the claim for protection, and new. [7] The Appellant is seeking to have an article dated July 2, 2019, entitled "Study: Brain injury common in domestic violence" from Ohio State University admitted as new evidence.2 The article states that "in the first community-based study of its kind, researchers from the Ohio State University and the Ohio Domestic Violence Network found that 81 percent of women who have been abused at the hands of their partners and seek help have suffered a head injury and 83 percent have been strangled"3. The article also states that it is the first study to establish "... that many survivors have likely experienced repeated head injury and oxygen deprivation - a combination that could contribute to more severe problems including memory loss, difficulty understanding, loss of motivation, nightmares, anxiety and trouble with vision and hearing...".4 [8] The Appellant submits that the article is relevant to her claim because it demonstrates that brain injury is common in domestic violence cases and that head trauma can cause memory issues. Counsel submits that the article is material and probative as it provides additional new information and supports the Appellant's testimony about having memory problems and being forgetful. I have reviewed the article and I find that it passes the s.110(4) and Raza/Singh factors because it post-dates the RPD hearing, appears on its face to be credible, and is relevant to the assessment of credibility in this appeal because the Appellant claims she has memory issues that are the result of her being a victim long-term domestic violence. Therefore, I admit the article as new evidence. [9] The Appellant requests an oral hearing concerning the proposed new evidence under s. 110(6) of the IRPA if the RAD deems it necessary. Having reviewed the new evidence and the record, I find that an oral hearing is not required in this appeal as the new evidence is from an objective academic source and does not raise a serious issue about the Appellant's credibility that would require the Appellant to provide further testimony. Accordingly, the Appellant's request for an oral hearing is dismissed. Merits of the Appeal Did the RPD err in its credibility findings? Domestic abuse [10] I find that the RPD erred when it determined that the Appellant's allegations that she had been domestically abused by her husband were not credible. [11] The RPD questioned the overall credibility of the Appellant's allegations that she was domestically abused by her husband in Kenya and determined that the Appellant's evidence was insufficient to establish the truth of the central allegations in her case. The Appellant submits that the RPD erred when it arrived at this finding because the Appellant's testimony and the support letters from her son and daughter were credible and provide corroborative evidence of the abuse claimed by the Appellant. The Appellant also submits that the RPD did not give adequate weight to the medical letter from the clinic in Kenya which states that the Appellant was treated over a period of 10 years for domestic violence by her spouse. Furthermore, the Appellant claims that the RPD failed to give adequate weight to the objective national documentation which recognizes that domestic violence is a serious problem in Kenya with over 40% of women reporting domestic violence and that state protection for domestic violence is inadequate in Kenya.5 [12] I have reviewed the Appellant's testimony, the letters of support and the medical letter. The Appellant was consistent in her testimony before the RPD that she had been abused by her husband, she stated that she had told her sisters about his abuse and that the children were aware of the abuse because they lived in the house and saw what was going on. She also testified that her husband was often drunk when he abused her. The medical letter states that the Appellant was a patient at Equatorial Health Services for approximately ten years during which in most occasions she presented with a history of having been assaulted by her spouse.6 The letter states that the Appellant has suffered both physical and psychological trauma and distress due to the assault and has been in counselling for several years.7 [13] The letter from the Appellant's daughter, dated June 5, 2019, corroborates that her father physically abused her mother over many years and that the events surrounding her brother's death involved her father and were suspicious.8 She states that her father has called her several times to find out where her mother was and that he was extremely mad when she eventually told him that her mother had fled to Canada. The letter from the Appellant's son, also dated June 5, 2019, further corroborates that his father is an alcoholic and that he witnessed his mother being abused by his father and that at times he would prevent her from leaving the house. 9 His letter also corroborates that his father's violent physical abuse of his mother escalated after his younger brother's birth in 2004. [14] In my view, the Appellant was consistent regarding the fact that she suffered long-term domestic abuse from her husband in her testimony and in her Basis of Claim (BOC) narrative. Furthermore, I find that that the letters of support from her remaining children and the medical centre in Kenya are credible and corroborate that the Appellant suffered serious domestic abuse over a period of many years. As a result, I find that the Appellant's allegations that she was domestically abused by her husband to be credible, on a balance of probabilities. When the Appellant began experiencing domestic abuse [15] I find that the RPD erred when it made a negative credibility determination against the Appellant because it found that the Appellant was not consistent in her evidence regarding when she began experiencing domestic abuse, and because the Appellant minimized the abuse she suffered during certain periods of her marriage. [16] The Appellant alleges that the RPD erred in its credibility assessment because the Panel imposed its own world view as to the conduct and behavior of the Appellant in response to the abuse from her husband. The Appellant submits that she was clear in bother her BOC narrative and her testimony that she suffered domestic violence from her husband. She states that she consistently claimed that the abuse started around the birth of her second child but that the abuse had escalated and become serious from the time she conceived her third child. As a result, she argues that the RPD erred when it drew a negative inference because of her failure to mention certain details in her narrative regarding her history of abuse. [17] I find that the RPD erred when it made a negative credibility inference because, in its view, the Appellant minimized the domestic abuse she suffered prior to 2004 because I find that the Appellant's explanation that it is not uncommon for domestic violence victims to want to consciously or unconsciously forget their abuse to be reasonable. In my view, accepting the Appellant's explanation is in keeping with the Chairperson's Vulnerable Persons Guideline10 which provides that a person's vulnerability may affect memory, behavior and a person's ability to recount relevant events, and that a vulnerable person may be reluctant to talk about their experiences. Such an approach is also consistent with the Chairperson's Guideline on Women Refugee Claimants Fearing Gender-Related Persecution which states that women who have been subjected to domestic violence may exhibit a pattern of symptoms referred to as Battered Woman Syndrome and may also be reluctant to testify. 11 [18] The RPD made a negative credibility inference against the Appellant's allegations because the Appellant's BOC narrative omitted the Appellant's husband's abuse of their younger son who drowned. The Appellant explained this omission by stating that she had dealt with only her most current problems in her BOC and that she had forgotten so much. The RPD did not find this reasonable. The Appellant alleges that the RPD ignored the effect of domestic violence on memory when it made this finding as the Appellant's son's letter corroborates that his late brother was abused by their father. The Appellant also testified that she believed that her younger son was targeted by her husband for abuse because he would often try to protect her from her husband's violent attacks and her son would be injured by her husband when he tried to get between her and her husband.12 Having reviewed the documentary evidence, the new evidence regarding the effects of domestic violence on memory, and the Appellant's testimony, I find that her explanation for this omission from her BOC is reasonable and that her testimony and letter from her son are consistent and credibly demonstrate that, on a balance of probabilities, her younger son was also abused by her husband, before his suspicious death on December 26, 2017, when he drowned while swimming with his father. [19] Based on the analysis above I find that, on a balance of probabilities, the Appellant has credibly established that she was domestically abused by her husband over a period of years and that his abuse escalated over the years. IFA Analysis [20] I find that the RPD erred in its IFA analysis. [21] The Appellant claims that the RPD erred in its IFA analysis because the Panel ignored the Appellant's testimony that her husband has substantial wealth and connections and would track her. The Appellant also submits that the RPD erred by ignoring her evidence that the only reason why her husband had not approached her while she was staying at her mother's home from January - March 2017 was because he believed that she was grieving and would return to him. The Appellant claims that her husband believes that she is his property and had he been told of her intention to leave him he would have gone to her mother's home to forcefully make her return to him. [22] The Appellant claims that she fears her husband will do something drastic if he finds her because of her suspicions that he was involved in her son's death and because he has threatened to kill her in the past. The Appellant testified that she did not report her husband's death threats to the police because the police only investigate when something tragic has already happened and in most cases they will tell you to deal with a family issue yourself, she also claims that she feared that her husband's abuse of her would escalate further if he found out that she had gone to the police. 13Therefore, the Appellant argues that the RPD erred when it speculated that her husband would not be motivated to track her down should she return to Kenya. [23] The Appellant also submits that the RPD erred because it did not provide adequate weight to the national documentation which states that despite progress for Kenyan women towards equal rights, such as the Protection Against Domestic violence Act14 and the government's framework of the elimination of discrimination against women, widespread gender-based violence is a serious and persistent problem.15 The documentation also states that the few existing efforts to combat violence against women and girls in Kenya lack momentum and urgency.16 [24] I find that, on a balance of probabilities, there is a serious possibility of the Appellant being persecuted in the proposed IFA because she has established that her abusive husband is motivated and has the resources to locate her in Kenya and, in my view, the national documentation confirms, on a balance of probabilities, that state protection for victims of domestic abuse is inadequate in Kenya. As a result, I find that the Appellant is a Convention refugee under s. 96 of the IRPA. CONCLUSION [25] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) Delia Lewis Delia Lewis October 29, 2019 Date 1 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385 and Singh v. Canada (Minister of Citizenship and Immigration) 2016 FCA 96. 2 RAD Record, Affidavit of Ying Jiang, Exhibit A at pages 117 - 119. 3 Ibid. at page 117. 4 Ibid. 5 Kenya, National Documentation Package, version: 31 January 2019, item 5.1: Protection Against Domestic Violence Act, 2015. 6 RPD-1, Medical letter from Equatorial Health Services at page 162. 7 Ibid. 8 RPD-1, Letter of support from Joy Muthoni Njue at page 163 - 164. 9 RPD, Letter of support from Dennis Mugendi Njue at page 167 - 168. 10 Chairperson's Guideline 8 : Procedures With Respect to Vulnerable Persons Appearing Before the IRB, amended December 2012 (the Vulnerable Persons Guideline). 11 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, September 1996 (the Gender Guideline). 12 RPD Hearing Audio Recording at approximately 00:38:00 - 00:40:00. 13 Ibid. 14 NDP, version: 31 January 2019, item 5.1.: Protection Against Domestic Violence Act, 2015. 15 NDP, version: 31 January 2019 item 5.9.: Violence Against Women and Girls in Kenya: Roles of Religion, 29 August 2016. 16 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-19003 RAD.25.02 (April 04, 2019) Disponible en français 6 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 (April 04, 2019) Disponible en français