VC0-02117

RAD File / Dossier de la SAR : VC0-02117 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 May 23, 2021 Date de la décision Panel E. Rose Tribunal Counsel for the person who is the subject of the appeal Amado Alexis Garcia Claros 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 the decision of the Refugee Protection Division (RPD) dated March 3, 2020. [2] The Appellant fears returning to Kenya due to problems that he encountered while running for XXXXoffice in the town of XXXX, Kenya. In XXXX 2017, the Appellant was threatened and assaulted by unknown persons during the political campaign leading up to the XXXX 2017 election. He believes that these were political rivals. His family members also received threats for their political activities. The Appellant lost the local election in XXXX 2017 and left Kenya on XXXX XXXX XXXX 2017 for the United States of America (USA) due to a fear of his political opponents. In XXXX 2018, the Appellant married an American citizen and they separated in XXXX 2019. On XXXX XXXX XXXX 2019, the Appellant came to Canada and made a claim for protection. He fears returning to Kenya as he believes that political rivals will seek him out and persecute him on return. [3] The RPD determined that the Appellant did not have a forward-looking risk on return to Kenya and found that he is neither a Convention refugee nor a person in need of protection. [4] The Appellant argues that the RPD erred in assessing both the profile of the Appellant and the forward-looking risk, and asks that I allow the appeal or, in the alternative, refer the matter back to the RPD for redetermination by a differently constituted panel.1 [5] The Appellant does not seek to admit new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), and no oral hearing is requested.2 [6] After a review of the record on a standard of correctness,3 I find that the Appellant is neither a Convention refugee nor a person in need of protection and the appeal is dismissed. ANALYSIS RPD findings [7] The RPD found that the Appellant adequately explained that he has no permanent residence in the USA and accepted that Article 1E did not apply. [8] The RPD determined that the Appellant provided sufficient credible evidence of involvement in local politics, and found the assault on XXXX XXXX XXXX 2017, perpetrated by unknown individuals, to be credible. [9] The RPD concluded that the Appellant did not establish a forward-looking risk as his political profile was not prominent, but local. As the electoral area of XXXX represented a small population numbering XXXX XXXX XXXX people, the RPD determined that the Appellant was known to a small group and was not a prominent political figure in Kenya, a country of 47 million people overall. [10] While the RPD did find the Appellant generally credible, it did not find the Appellant provided sufficient credible evidence around his brothers' poisoning, or the burning and robbing of his father's farm by political rivals. [11] Furthermore, the RPD did not find the Appellant's allegations that his children are being sought by political opponents in Nairobi was sufficiently established, noting that the Appellant had not received any threats since his election loss and departure. [12] Lastly, the RPD concluded that the Appellant alleged discrimination due to being a member of the Luhya tribe; however, it found that there was no evidence of persecution adduced at the hearing. While the RPD made Internal Flight Alternative (IFA) in Nairobi and Mombasa an issue at the RPD hearing, this was not addressed in the decision. Appellant's arguments and political profile analysis [13] The Appellant argues that the RPD erred in assessing the political profile of the Appellant as he provided supporting evidence of his political activities. He argues that the RPD did not define "prominent" when addressing the profile in the decision and argues that the only relevant issue is that the Appellant was attacked due to his political beliefs. [14] I agree with the Appellant that the RPD did not define "prominent" in their decision; however, this is not an error. Prominent is defined as 'important or well known' in the Oxford Dictionary,4 and is a common usage term. [15] I have reviewed the record and agree that the Appellant did not establish himself to have a highly visible or prominent political profile, such that four years after a local election, he would encounter a problem everywhere in Kenya on return as alleged. The RPD's conclusion that the Appellant failed to establish that he is a prominent politician in Kenya with sufficient credible evidence is supported on the record. [16] While I note that there is some confusion arising from the decision where the RPD accepts general credibility and then qualifies it, I do not agree that by accepting the profile of the Appellant as an independent candidate in his local ward, which was supported with documentation,5 that the RPD also implicitly accepted all the allegations relating to his family members as well. [17] The Decision specifically qualifies the finding, and I agree that the Appellant's political profile arising from a short-term involvement in local politics, is insufficient to establish a national political profile and risk, as alleged. [18] The RPD clearly accepted that the Appellant suffered an assault in XXXX 2017,6 while campaigning, and some verbal threats thereafter. The Appellant does not specifically identify his agents of persecution; however, he speculates that they are his political opponents. The XXXX 2017 assault did not impede the Appellant's continued political campaign, and he did not leave his local area until XXXX 2017, following his election loss in XXXX 2017, and four months after the assault. [19] I find that the RPD was correct in differentiating the evidence of the Appellant's personal involvement in a local political election, from the evidence around subsequent and previous events relating to the family political involvement. These allegations were not sufficiently credible or supported by his own supporting evidence. [20] I note that the Appellant also testified that is normal in Kenyan politics to receive verbal threats during a campaign, and he did not attribute this to being unusual.7 He believes that his risk in the future stems for his completion of the election which split the results; and offered that his family had been persecuted historically for their political opinions. [21] The Appellant's allegation that his family members were killed in suspicious circumstances, all related to politics, is not supported by the two death certificates provided as supporting evidence.8 According to the certificates, his mother died of colon cancer and anemia and his father of respiratory distress. Additionally, the Affidavit provided by his sister,9 makes no mention of the death of family members due to any political profile. I find that the Appellant provided insufficient credible evidence of political profiling of his family members leading to death. [22] The Appellant submits that the RPD erred by expecting the Appellant to have evidence to establish his allegations and the circumstances of the death of family members at the hands of their political opponents. It is submitted that his oral testimony is sufficient, however, I disagree with the Appellant's argument. [23] Given the gravity of the allegation that family members had been murdered by political opponents dating back to 2002, it was reasonable for the RPD to expect corroborating evidence of these events, like newspaper articles, medical certificates, police reports, or witness accounts. The evidence provided, namely the death certificates for the Appellant's parents, do not corroborate the allegation. Maldonado does not halo testimonies into irrebuttable presumptions of truth; credibility and the failure to submit corroborating documents where available can result in an adverse credibility finding10. The RPD did not err. [24] While the Appellant was found credible on his local political profile, it does not extend to every allegation that flowed from it, and as set out in the RPD Decision,11 some allegations were not established with sufficient credible evidence, like the murder of family members for political reasons. [25] The Appellant submits that he is at risk on return as his children have been targeted in Nairobi by his rivals. In support, he offers an Affidavit from his sister. The Appellant's sister's Affidavit references 'unknown persons' threatening the Appellant's children in Nairobi, which forced her to move twice. Her statement is not supported with any government issued documentation indicating changes in her residential address during the period of caring for the Appellant's children; nor is there a police report of threats, or any other reliable confirmation that these events occurred. [26] When the Appellant was asked about the situation regarding these threats, he did not offer precise information either. In response to the question about his sister's moves, he testified: "No, she moved within Nairobi because she works for a national insurance firm, so unless she gets a transfer to a different area she works within Nairobi, so she moved from Buruburu to Nairobi West, in houses, I think."12 [emphasis added] [27] Again, the information on the agent of persecution and events are vague, and the only details that the Appellant knew was that his sister's gateman reported to his sister that "strange fellows" were asking questions. From this, he stated, his sister inferred that it was about the Appellant and his children, whom the Appellant's sister cares for.13 [28] I find the connection between these vague inquiries and the Appellant's previous political activities outside Nairobi, to be speculative, and not sufficiently credible to establish a current threat to the Appellant's children, or the Appellant. The Appellant has been separated from his children and politics for four years. [29] The Appellant may have a subjective fear of local politicians in the ward where he ran for election in 2017, however, there is insufficient credible evidence establishing that there is a risk to him from these unknown persons today. [30] The Appellant has not provided evidence of ongoing political activities outside of Kenya, since his departure in XXXX 2017, which would give rise to a new national political profile. Additionally, he has not expressed an intention to return to politics in the future. While politics may be a violent endeavour in parts of Kenya, as noted by the RPD, given the lack of sufficient credible evidence of ongoing interest in the Appellant today by anyone in Kenya due to his political views or those of his family members, I do not find that he faces a forward-looking risk on his return. [31] Lastly, the Appellant argues in his memorandum that he believes the RPD was sidetracked by the Appellant's failure to establish himself and his family as key figures in the Kenyan political scene, as political differences in Kenya can lead to death. [32] I do not agree with the Appellant that the RPD was sidetracked. The Appellant did not establish a political profile that gives rise to a forward-looking risk today. He did not establish with sufficient credible evidence that if he "sets foot anywhere in Kenya" his political opponents will be tracking him,14 as he testified. Appellant's ethnicity [33] The Appellant also argues in his Memorandum that it is "very likely"15 that the Appellant faced persecution due to his Luhya ethnicity and Maragoli subtribe association, and the RPD erred by determining otherwise. [34] My review of the record indicates that the Appellant did offer some testimony around his ethnicity and life in his local area. He stated that he believed some of his business contracts had been affected because of his tribal background;16 however, he did not provide sufficient credible evidence of discrimination amounting to persecution. I find the Appellant's argument that his problems could be related to ethnicity to be speculative. [35] Overall, the Appellant has not established that he faces a serious possibility of persecution on return to Kenya today, for either his political opinion or ethnicity. CONCLUSION [36] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Elana Rose Elana Rose May 23, 2021 Date 1 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 10. 2 Ibid., p. 3. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Oxford Learner's Dictionary, accessed 12 May 2021, at https://www.oxfordlearnersdictionaries.com/us/definition/english/prominent?q=prominent 5 Exhibit RPD-1, RPD Record, Exhibit 4, pp. 132-134, 147, 150-171, and Exhibit 5, p. 177. 6 Transcript of January 23, 2020 RPD Hearing, at p. 15. 7 Ibid., p. 15. 8 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 179-180. 9 Ibid., p. 174. 10 Fatoye v. Canada (Citizenship and Immigration), 2020 FC 456, at para. 35; Ismaili v. Canada (Citizenship and Immigration), 2014 FC 84, at para 60. 11 Exhibit RPD-1, RPD Record, RPD Reasons, p. 6, at para. 14. 12 Transcript of January 23, 2020 RPD Hearing, at p. 36. 13 Ibid., p. 37. 14 Transcript of January 23, 2020 RPD Hearing, at p. 18. 15 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 9. 16 Transcript of January 23, 2020 RPD Hearing, at p. 10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-02117 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français