Date: 20070920
Docket: IMM-5079-06
Citation: 2007 FC 944
Toronto, Ontario, September 20,
2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
BERNARD
MWAURA MUCHAI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult male person, a citizen of Kenya. The
Applicant sought refugee status in Canada and was denied. The
Member of the Immigration and Refugee Board of Canada, Refugee Protection
Division, in a written decision dated August 29, 2006, determined that the
Applicant was not a Convention refugee and not a person in need of protection,
thereby denying the claim. In particular, the Member found that the Applicant
knowingly took part in the Mungiki sect in Kenya an organization
which was engaged in crimes against humanity including crimes against civilian
populations and serious non-political crimes as proscribed by Articles 1F(a)
& (b) of the Geneva Convention. Further, the Member found that the
Applicant had not satisfied his burden of establishing a serious possibility of
persecution on a Convention ground namely that it was more likely than not that
he would be personally subjected to danger of torture or face a risk to life or
of cruel and unusual treatment or punishment on return to Kenya.
[2]
For
the reasons that follow, I find that the application is to be dismissed.
[3]
The
Applicant claims to have pursued a career as a photographer commencing with the
Ministry of Information and Broadcasting in Kenya in 1989. He
went to London England in 1995
where he continued that career. In 2001, the Applicant returned to Kenya where he
continued that career on a freelance basis. The Applicant applied to enter
Canada on a visitor’s visa to visit photography studios in Canada in September
2005 and initially was rejected. He also applied for a United
States
visa at the same time and was rejected. The Applicant applied a second time
for a visa to visit Canada and was permitted a visa. When entering Canada under the
visa, the Applicant was questioned at length by immigration officials at which
time the Applicant made a claim for refugee status. The Applicant asserts that
at the time that the initial Canadian and the United States visas were
sought, the Applicant’s house was raided and ransacked by Kenyan police. The
basis, for the raid according to the Applicant was that the Applicant was a
member of what is known as the Mungiki sect.
[4]
The
Applicant joined the Mungiki sect in 2002, that is, after he returned to Kenya from England. The
Applicant freely admits to joining that sect and being a member without
coercion. He even produced a membership card to the Member of the Board hearing
the matter. The Applicant claims that the Mungiki is a group that is comprised
of many different elements and that there are bad persons who are not members of
the Mungiki but do things in the name of Mungiki. He admits that there is no
doubt that some bad people do certain things in the name of Mungiki but that it
is impossible to prevent them from doing so. The Applicant claims not to
believe in violence but only associates with the Mungiki by reason of his
interest in Kenya’s cultural past, human rights, and the creation of an
alternative political party in Kenya. The Applicant admits that the Mungiki sect
has been attacked by the Kenyan government and members are subject to arrest.
The Applicant asserts however that every political party in Kenya uses
violence and intimidation and that the government itself encourages criminals
to engage in violent activity in the name of Mungiki.
The Member
considered the Applicant’s evidence and the other evidence presented. The
Member stated that tyranny in the name of any supposed noble cause is tyranny
and that any argument as to different sectors in the Mungiki sect are best left
for determination by the courts in Kenya. The Member determined that there was
no reliable evidence from which to conclude that there were two different
sectors in the Mungiki cult. I agree with this conclusion. Other than the Applicant’s
assertions, there is no evidence that there exists a benevolent or non-violent
sector of the Mungiki cult. All other evidence is overwhelming that the
Mungiki is not based on any particular religious affiliation, but it is more
like an army unit using assault rifles, it is and linked with extortion,
killings, illegal drug sales and for-hire vigilantism; it is a veritable secret
army having the ability to practice mass violence.
[5]
A
review of the record leads to conclusion that the findings of the Member as to
the Mungiki as set out at page 8 of his Reasons are not unreasonable namely:
In view of the unsurmountable
documentary evidence contained in Minister’s Counsel’s evidence, there is
little doubt that Mungiki exist for one single brutal purpose. That purpose
would seem to be obtaining dominance by use of murder and intimidation.
Similarly, there is very little doubt that the claimant was aware of those
things and knowingly remained a part of that organization. And shared a common
purpose, the overthrow of contemporary Kenyan values for the purpose
of returning to traditional Kikuyu religion and culture.
[6]
The
Member further in his Reasons at page 8 acknowledges that there is no evidence
that the Applicant personally participated in atrocities committed by the
Mungiki. He was guided, however in coming to his decision by the principles as
set out in Ramirez v. Canada (MCI) [1992] 2 FC 306
[7]
I
reviewed the law in respect of a situation where a person was found to be a
member of an organization which committed atrocities but there was no evidence
of direct participation on those activities by the person in question Bedoya
v. Canada (MCI) 2005 FC 1092. The decision in Ramirez supra is to
be considered in light of later decisions including the Supreme Court of Canada
in Canada (MCI) v. Mugesera 2005 SCC 39 and this Court in Zazai v.
Canada (MCI) 2004 FC 1356. In Bedoya, I concluded in paragraphs 11
and 12:
[11]
The test in law applied by the Board appears, therefore, to be correct, they
considered whether the Applicant Sanchez "was a knowing and active
participant" and an "accomplice" in crimes against humanity.
[12] The
question for the Court therefore is whether the findings of the Board in fact
to support the conclusions in law were "patently unreasonable" given
that the standard to be met by the Minister is "less than the balance of
probabilities". In this regard the cases enumerate various considerations
for "complicity" in situations such as the one now before the Court.
I accept the summary of these considerations offered by the Minister's counsel
at paragraph 32 of the Respondent's Further Factum:
a.
The nature of the organization
b.
The method of recruitment
c.
The position/rank in the organization
d.
The length of time in the organization
e.
The opportunity to leave; and
f.
The knowledge of the organization's atrocities.
[8]
In
examining the criteria set out in paragraphs a) to f) above, the evidence shows
that the Applicant knowingly and voluntarily joined the Mungiki in 2002 and
remained as a member of that organization at least until his arrival in Canada
in late 2005. He apparently knew when he joined that the Mungiki was an
organization engaged in atrocities. He had many opportunities to leave the
Kenyan government even offered an amnesty and protection. We do not know what
position or rank he held but it does not appear to have been of significance at
least not publicly.
[9]
The
Member found at page 9 of his Reasons:
The Board therefore finds that
the claimant has been knowingly complicit in an organization principally
directed to a limited brutal purpose and has shared a common purpose with the
Mungiki sect by virture of having been enough aware of the sect’s violence to
have voices concerns to Mungiki leaders but, despite his own misgivings
knowingly remained a member of the Mungiki sect until his departure from Kenya
in October 2005. Further, the claimant has acknowledged that he shared the view
with his fellow Mungikis that the ideal situation for Kikuyu tribe would be for
the Mungiki to seize power and recreate native culture and religion in Kenya.
Accordingly, the Board finds
that there are serious reasons to consider that the claimant has knowingly
taken part in such actions in Kenya and as a consequence of his participation
with the Mungiki sect as exclude him from refugee protection because of Crimes
Against Humanity including crimes against civilians population22 and
serious non-political crimes.
[10]
These
findings are not unreasonable having regard to the evidence before the Board.
[11]
Given
that the Applicant voluntarily joined the Mungiki, knowing it to be an
organization which committed atrocities, and remained, voluntarily, a member
even though he could have extricated himself. Given that, throughout the
Hearing, the Applicant continued to assert his desire to affiliate himself with
that organization, it was reasonable for the Member to conclude that the
Applicant was “complicit” in the activities of atrocity committed by the Mungiki
within the meaning of article 1F(a) of the Geneva Convention.
[12]
Once
the Applicant has been shown to be excluded under section 98 of the Immigration
and Refugee Protection Act S.C. 2001 c27, the Board should not consider a
claim under section 97 of that Act. (Xie v. Canada (MCI), 2004 FCA 250
at paras. 33-37). In this case the Member did consider section 97 and found
that the Applicant could seek protection from the state. The Member should not
even have considered the matter and it requires no further discussion here.
[13]
In
respect of the question as to whether the Board must consider section 97 of
IRPA once the Applicant has been shown to be excluded under section 98,
Applicant’s counsel relied on a decision of this court in Biro v. Canada
(Minister of Citizenship and Immigration), 2005 F.C. 142 a decision made
after the Court of Appeal decision in Xie supra where the Trial Judge
conducted a section 97 analysis in such a situation. The Judge appears not to
have been referred to Xie. Further, when Biro’s circumstances were
again considered in this Court in a decision cited at 2007 FC 776, the Judge,
at paragraph 29, followed Xie as “settled law” and held that there was
no need to conduct a section 97 analysis.
[14]
The
application is dismissed, there is no questions for certification; there is no
special reason to award costs.
JUDGMENT
For the
Reasons provided:
THIS COURT
ORDERS AND ADJUDGES that:
1. The
application is dismissed;
2. There is no question
for certification;
3. There is no Order as
to costs.
“Roger T. Hughes”
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