Date: 20060926
Docket: IMM-474-06
Citation: 2006 FC 1136
Ottawa, Ontario, September 26,
2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
MELODICAH
NG’AYA
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Melodicah Ng’aya, challenges a pre-removal risk assessment (PRRA)
decision in which it was determined that she could safely return to Kenya by
relocating to an internal flight alternative (IFA), specifically to Mombassa.
[2]
Ms.
Ng’aya entered Canada in 2001 under a study visa issued in Nairobi. She was
then 18 years old. The Record indicates that she did not seek refugee
protection at any time since coming to Canada but she did
make a PRRA application on October 12, 2005.
[3]
At
the request of the PRRA Officer (Officer), Ms. Ng’aya’s PRRA application was
supplemented with a six-page narrative describing her years in Kenya. She
outlined a history of severe sexual abuse at the hands of her father commencing
at a very young age. Her father’s aberrant conduct, she said, resulted from
his mental illness. When Ms. Ng’aya finally brought this abuse into the open
she was banned from the household, but, at the request of her mother, she was taken
in by an uncle. At the age of seven Ms. Ng’aya’s father attempted to force her
into an arranged marriage but she was again protected by her uncle.
[4]
Through
Ms. Ng’aya’s early teenage years she attended school with the support of her
uncle. She said that it was her uncle who arranged for her to study in Canada. Shortly
before Ms. Ng’aya came to Canada her uncle was involved in a serious
disabling “accident” which was allegedly caused by a gang acting under the
direction of Ms. Ng’aya’s father. Ms. Ng’aya said that this attack was intended
for her. Although Ms. Ng’aya appears to have escaped the unwanted attention of
her father for a number of years while she attended school and lived in
Nairobi, the Officer specifically noted her evidence that, just before leaving Kenya, she was
located and targeted by a cult acting at the direction of her father.
[5]
Since
coming to Canada Ms. Ng’aya
has had a child who is now one year of age. She advised the Officer that, when
her father learned of the out-of-wedlock birth of her child, he threatened to
kill her because of the resulting disgrace. This threat, she said, included a
statement that she should be happy she was no longer within his reach.
[6]
The
Officer seems to have accepted most of Ms. Ng’aya’s evidence as reliable. It is
certainly the case that the outline of her evidence in the PRRA decision gives
almost no indication of a concern about its trustworthiness. Indeed, with
respect to the evidence of the risk posed by Ms. Ng’aya’s father, the Officer came
to the following conclusion:
I do, however, accept that Kenyan
authorities are unlikely to intervene to protect the Applicant from harm at the
hands of her father, given that there is evidence that they have demonstrated
an unwillingness to intervene in domestic disputes and that there are traditions
granting extensive impunity to fathers and husbands who commit violence in
their families.
[7]
The
Officer did conclude, however, that Ms. Ng’aya had a safe and viable IFA in
Mombassa. That aspect of the decision is set out in the following passage:
During the ten years that the Applicant
lived in Nairobi, and despite having
aggravated her father and her father having joined the Mungiki cult, her father
was unable to locate her despite his relative proximity. There is little if
any evidence to establish, on a balance of probabilities, that the Applicant
experienced any difficulties residing in Nairobi due to her father’s previous political
activities.
I am satisfied that the Applicant could
safely relocate to Mombasa. Over four years have passed
since she departed from Kenya and Mombasa is a significant
distance from both Kericho and Nairobi, where the Applicant
previously lived. Mombasa is characterized by the US
State Department as an urban centre in a country of approximately 32 million
people. While the Applicant’s father is a member of the Mungiki cult, when the
Kenyan government’s efforts to combat it, and the geographic and demographic
size of Kenya and the Applicant’s profile, are considered, I find that it is
highly unlikely that her father or his associates in the Mungiki cult would be
capable of locating and targeting her for serious harm in Mombasa.
[8]
Although
counsel for Ms. Ng’aya has raised a number of issues as a basis for challenging
the PRRA decision, I need only refer to one of those in disposing of this
application.
Issues
1.
What
is the required standard of review?
2.
Does
the PRRA decision stand up to review with regard to the IFA conclusion?
Analysis
[9]
I
accept as accurate the Respondent’s description of the standard appropriate to
a review of a PRRA decision set out in paragraph 5 of its Further Memorandum of
Argument as follows:
In Kim this Court exhaustively
analyzed the standard of review applicable to PRRA decisions. Justice Mosley
determined that “in the judicial review of PRRA decisions the appropriate
standard of review for questions of fact should generally be patent
unreasonableness, for questions of mixed law and fact, reasonableness
simpliciter, and for questions of law, correctness”. When a PRRA decision is
considered “globally and as a whole,” the appropriate standard of review is
reasonableness.
[10]
The
IFA issue raised in this application is one of mixed fact and law which carries
a standard of review of reasonableness. The decision must, therefore, be
sufficiently sound that it can stand up to a somewhat probing examination.
[11]
There
are two aspects of the Officer’s IFA conclusion which do not satisfy the
reasonableness standard.
[12]
In
concluding that Ms. Ng’aya would be safe in Mombassa from her father and his
cult associates, the Officer relied heavily on a supposed ten year period of
relative tranquility resulting from her father’s ostensible inability to locate
her. This finding is at odds with Ms. Ng’aya’s evidence that her whereabouts
had been discovered by her father’s associates just before she left for Canada. The PRRA
decision does not discount Ms. Ng’aya’s evidence on this point, and in the
context of identifying a viable IFA, the decision ignores this evidence.
[13]
The
PRRA decision treats Ms. Ng’aya’s evidence of a more recent threat communicated
to her in Canada motivated by
the birth of her child in the same way – the decision refers to the evidence
but fails to consider its significance in the context of the IFA analysis. If
this was, in fact, a further aggravation to Ms. Ng’aya’s father, it had the
potential to place her at increased risk in Kenya. Some
consideration of this evidence was necessary for a thorough assessment of the
risk and the Officer’s failure to mention it as a part of the risk analysis
gives rise to an inference that it was overlooked on that issue. A decision
that ignores important evidence in its analysis does not meet the standard of
reasonableness: see Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425, 157 F.T.R. 35 at
para. 17.
[14]
The
other troubling aspect of the PRRA decision concerns the conclusion that it was
“highly unlikely that [Ms. Ng’aya’s] father or his associates in the Mungiki
cult would be capable of locating and targeting her for serious harm in
Mombassa”. This aspect of the decision is based upon the Officer’s findings
that Ms. Ng’aya had lived for 10 years without incident in Nairobi (a suspect
finding as noted above) and that she could effectively disappear into the urban
surroundings of Mombassa. It is highly speculative and unreasonable to draw an
inference of safety based upon evidence of relatively small geographic
distances between the persecutor and victim and upon vaguely expressed
demographic considerations. Here I am drawn to the reasoning of Justice Francis
Muldoon in the case of Reynoso v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 117, 107 F.T.R.
220. At paragraph 13 of that decision, the Board’s IFA finding was described
as tenuous in a situation similar to the current case:
She is a mother and she looks after her
child. How, it was asked, could they find you among the 20 million other
inhabitants of Mexico
City? They
obviously followed my mother who came to visit me, she justly answered. In
finding the capital city to be her IFA, the CRDD had to have ignored the two
incidents above mentioned and to have considered the other 20 million
inhabitants to form some sort of protective insulation around the applicant.
This is a much different IFA from that of Columbo for Tamils, or the vast
sub-continent of India for certain Sikhs. This
applicant is specifically targeted by her resourceful persecutor. She is one
of a small group, infinitely small compared with, say, the vast numbers of
Tamils or Sikhs mentioned above. She is in such plight, specifically targeted,
but not specifically guarded by the State. She cannot really rely on State
protection only the "insulating factor of a big city". This seems
not to be a case of someone going away and being of no further interest to the
persecutors.
If Ms. Ng’aya’s father posed a serious risk
to her safety and if, as the Officer found, state authorities could not protect
her from him, the potential for harm could not be so readily dismissed. The
logical inference to draw from the evidence recorded in the PRRA decision is
that Ms. Ng’aya’s whereabouts in Mombassa would eventually become known to her
father particularly if she was unable or unwilling to isolate herself totally
from all of the other members of her family and past family acquaintances. Such
segregation is an impossible burden to place upon a young woman looking after a
baby in a challenging and unfamiliar urban setting. The issue of personalized risk
needs to be assessed against the realistic social and economic situation
facing a claimant who is expected to return.
[15]
For
these reasons I have concluded that the PRRA decision is unreasonable and must
be set aside.
[16]
At
the conclusion of argument in this case I allowed the parties to address the
issue of a certified question within seven days of the rendering of this
decision. The Applicant submitted proposed questions for certification but those
questions do not arise from this decision. Although this decision is
substantially fact-based I will, nevertheless, allow the Respondent seven days to
consider the issue of a certified question and to advise me of its position. The
Applicant will then have three days to reply.
JUDGMENT
THIS COURT AJUDGES that the
PRRA decision is hereby set aside with the matter to be redetermined on the
merits by a different Officer.
"R.
L. Barnes"
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