Date: 20080617
Docket: IMM-4360-07
Citation: 2008 FC 748
Ottawa, Ontario, June 17,
2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
MARY
WAIRIMU MWAURA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the Act), for judicial review of a decision of the Refugee Protection Division
of the Immigration and Refugee Board (the Board) dated September 24, 2007,
wherein the Board determined that the applicant was not a Convention refugee
according to section 96 of the Act, nor a "person in need of
protection" according to section 97 of the Act.
BACKGROUND
[2]
Ms. Mwaura is a Kenyan national and a member of
the Kikuyu tribe. She asserts that, following the death of her father in 1989,
she began to experience problems at the hands of the clan of her husband, a
member of the Mungiki sect. The Mungiki sect wanted her to undergo female
genital mutilation (FGM) which they claimed she had escaped due to her
well-to-do background and the objection of her father to the practice.
[3]
In 1993, the Mungiki elders sent a verbal
warning that if she did not go through with the FGM ritual they would force her
to do so. After receiving several such warnings, Ms. Mwaura went to her church
minister for help. He sent a church member to tell the elders to stop their
harassment of her, threatening to go to the police if they did not comply. Following
this intervention, the warnings ceased for a time.
[4]
In 1995, Ms. Mwaura’s thirteen year old daughter
was warned to undergo the FGM ritual by a male schoolmate. Ms. Mwaura went to
the principal and the boy was expelled. Warnings to Ms. Mwaura continued from
her husband’s sect elders and family members.
[5]
In June 2002, Ms. Mwaura’s husband told her to
go through with the ritual as a result of another warning. She reported the
warnings to police but they took no action as they considered it to be a family
matter.
[6]
After another warning in December 2002, she
moved with her children to her mother’s house in a town some 20 kms away. Her
husband repeatedly visited her to ask her to return home. She eventually did
return to live with her husband.
[7]
In January 2004, her husband told the sect
elders that she was once again living with him. In March 2004, the elders came
to her house to tell her that she must undergo the ritual. Her husband agreed
with them and told her that he was becoming an outcast because of her refusal
to do so. She gained another 24 hours’ reprieve to think matters over and fled
the home again.
[8]
In December of 2004, she returned to her
husband’s house on his invitation to talk. She managed again to escape and
went to her sister’s house in Nairobi. From there, she made arrangements through an agent to flee to Canada, where she arrived June 1, 2006.
[9]
In a decision dated September 24, 2007, the
Board dismissed the applicant’s claim given it was of the view that she had a
viable internal flight alternative (IFA) in Nairobi and that she would be
provided with adequate state protection there if necessary.
STANDARD OF REVIEW
[10]
In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
S.C.J. No. 9, the Supreme Court of Canada emphasized the two step nature of the
process of judicial review wherein a reviewing court must first determine
whether “the jurisprudence has already determined in a satisfactory manner the
degree of defence to be accorded with regard to a particular category of
question” (Dunsmuir, above, at para. 62). In Zamora Huerta v. Canada
(Minister of Citizenship and Immigration), 2008 FC 586, at para. 14, my
colleague Justice Edmond Blanchard applied Dunsmuir to the issue of IFA
and determined that the appropriate standard of review is that of
reasonableness.
[11]
Thus, the present judicial review of the
Board’s decision will focus on the existence of justification, transparency and
intelligibility in the decision-making process and will examine whether the
decision falls within a range of possible, acceptable and defensible outcomes (Dunsmuir,
above, at para. 47).
[12]
With respect to the issue of procedural
fairness, I note that pursuant to Canadian Union of Public Employees
(C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R.
539, [2003] S.C.J. No. 28 (QL), at para. 100, “it is for the courts, not the
Minister, to provide the legal answer to procedural fairness questions.” Thus, questions
of procedural fairness are not subject to the standard of review.
ANALYSIS
[13]
The determination of the existence of an IFA is
integral to the determination of the entire claim (Rasaratnam v.
Canada (Minister of Employment and Immigration) (C.A.),
[1992] 1 F.C. 706, [1991] F.C.J. No. 1256 (QL). As with all
aspects of the claim, an applicant bears the burden of proof in demonstrating
that an IFA either does not exist or is unreasonable in the circumstances (Thirunavukkarasu
v. Canada
(Minister of Employment and Immigration), [1994] 1
F.C. 589, [1993] F.C.J. No. 1172 (QL), at para. 12).
[14]
The IFA analysis is a two-step process in which
the Board must first “be satisfied on a balance of probabilities that there is
no serious possibility of the claimant being persecuted in the part of the
country in which it finds an IFA exists” and second, if it finds one exists, it
must then evaluate if it would be reasonable for the applicant to seek refuge
there (Rasaratnam, above).
[15]
The threshold for the unreasonableness of an IFA
is a very high one requiring “nothing less than the existence of conditions
which would jeopardize the life and safety of a claimant in travelling or
temporarily relocating to a safe area” and “actual and concrete evidence of
such conditions” (Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164, [2000] F.C.J. No. 2118 (QL), at para. 15).
[16]
The test for determining the reasonableness of
an IFA is a flexible one which takes into account the particular circumstances
of the claimant and the particular country (Thirunavukkarasu, above, at
para. 12). Furthermore, to be reasonable, an IFA cannot be speculative or
theoretical only but rather it must be a realistic and attainable option; “[t]he
claimant cannot be required to encounter greater physical danger or to undergo
undue hardship in travelling there or in staying there” (Thirunavukkarasu,
above, at para. 14).
[17]
In the present case, the Board considered that
it would be reasonable for the applicant to relocate to Nairobi based mainly on
the applicant’s own evidence that all of her problems in Kenya respecting her
estranged husband and elders or members of his Kikuyu clan (or the Mungiki sect
of the Kikuyu ethnic group) occurred in Thika, Kenya, and that from December
2004 to May 2006, she was able to live with her sister in Nairobi without
contact from these individuals. Further, the Board highlighted documentary
evidence indicating that other members of the Kikuyu clan have not had problems
settling in Nairobi and that
the applicant’s profile as a member of the Kikuyu ethnic group is dissimilar to
those female members of the group who would be at risk of being victims of FGM.
Finally, it referred to the United Kingdom Immigration and Nationality
Directorate’s June 1, 2006 Operational Guidance Note – Kenya
indicating that FGM is a regionalized practice mainly in the Eastern, Nyanza,
and Rift Valley provinces.
[18]
The Board then proceeded to evaluate the
reasonableness of the IFA in Nairobi. It noted that the applicant was a 48 year old woman, who appeared
to be in good health, and was reasonably well-educated with a diploma in
education and a community health certificate. Further, she had approximately
eight years of experience employed as a teacher and approximately three years
of experience as a community nurse, and speaks Swahili, Kikuyu and English. Based
on these factors, the Board found that there were no serious economic or social
barriers which would render her move to Nairobi unduly harsh and further, that she currently has one brother and
two sisters in Nairobi. The
Board also stated that there is freedom of movement in Kenya which is generally respected by the government in practice and thus
no legal impediments to her relocation.
[19]
The applicant submits that the documentary
evidence upon which the Board relied was not relevant to her situation because
it relates to members of the Kikuyu ethnic group resettling in Nairobi in order
to escape political violence and not to her situation which is that of a woman
seeking safety from male family members or a notorious group, the Mungiki,
wishing to force FGM upon her. I would note first that
the Board recognized in its decision that the documentary evidence it referred
to was “not Mungiki-related” and second that its conclusion with respect to the
existence of a viable IFA was based on the applicant’s own evidence of having
been able to avoid the procedure for many years, and that she experienced no
problems after leaving Thika.
[20]
Further, according to the applicant, the Board
misconstrued the length of time during which the applicant resided with her sister
in Nairobi. She argues that she
was never asked about the specific time period between December 2004 and May
31, 2006. She submits that on previous occasions she clearly indicated that she
went to her sister’s home in December 2005, first when she completed the
initial forms for her intake interview, and subsequently when she had her
eligibility interview and again when she completed her PIF. She emphasizes
that the paragraph of her narrative in which she states that she went to live
with her sister in December 2004 is a typographical error. The applicant
suggests that the Board ought to have recognized this discrepancy given that in
the reasons for decision it refers to the applicant’s three years of employment
experience as a Community Nurse in Thika, Kenya from 2002 to December 2005.
[21]
While I agree that there is a fair amount of
confusion with respect to the time period during which the applicant lived with
her sister, I note that in her submissions to the Board even the applicant’s
counsel herself referred to the period as lasting two years.
[22]
However, even accepting that the applicant only
lived in Nairobi for five
instead of seventeen months, this fact is not enough in itself to impugn the
entire IFA analysis given that the Board came to its conclusion based on a
number of factors and not solely on the basis of the seventeen month time
period spent in Nairobi.
[23]
I find, overall, the Board’s decision to be
sound; it followed the two-step IFA analysis outlined above and assessed both
the existence of the IFA and its reasonableness, taking into account the
particular aspects of the applicant’s circumstances and those of the country.
[24]
As the existence of a valid IFA is determinative
of a refugee claim, it is not necessary to examine the applicant’s submission
with respect to state protection (Shimokawa v. Canada (Minister of Citizenship and
Immigration), 2006 FC 445, [2006] F.C.J. No. 555
(QL), at para. 17).
Was there a breach of procedural
fairness?
[25]
Subsequent to the hearing, but before the
decision of the Board, Ms. Mwaura received word that her children, who had been
living with her mother prior to her mother’s death, were facing “the same
problems” that she had. After receiving the news, she contacted a Case
Management Officer, who instructed her to contact the Refugee Protection
Division by faxing a letter, which she subsequently did. She was very
emotional when speaking to the Officer and after the fax was received the
police were contacted by someone at the Refugee Protection Division and they
took Ms. Mwaura to a hospital where she remained for ten days. She was not contacted
by anyone for further information regarding her children’s situation. The
children were sent to Uganda
for safety while she was hospitalized, and remain there.
[26]
The applicant submits that the Board violated
the principles of procedural fairness by not inquiring into these circumstances
in order to determine whether any new issue arose which would affect her
safety. More particularly, once the Board was advised that there were new
developments in Kenya with
respect to her children, there was a positive duty incumbent upon the Board to
inquire into what, if any new risks were faced by her. Further, the Board
failed in its duty to assess her claim based on all of the evidence before it
as nowhere in the decision are the post-hearing events referred to.
[27]
The respondent argues that the applicant’s
letter dated September 18, 2007 did not allege that her safety was in jeopardy
as a result of third party actions, or that she had been personally threatened
since the hearing. The applicant’s children are all adults and are not subject
to her refugee claim. The letter did not provide any details of what her
children were allegedly experiencing, who the alleged persecutor was, how the
allegations put the applicant herself at risk, or how they supported her own
claim.
[28]
It is trite law that the applicant bears the
onus of establishing the factual elements of his or her claim. In the present
case, the applicant submitted a letter to the Board on September 18, 2007
regarding a “Request for a decision” of her refugee claim. In the letter, the
applicant states “[m]y children are suffering from the same problem I had
before I fle[d] the country.”
[29]
The Board has a duty to receive evidence
submitted by the parties at any time until the decision is rendered (Caceres
v. Canada (Minister of Citizenship and Immigration), 2004 FC 843, [2004]
F.C.J. No. 1037 (QL), at para. 22; Vairavanathan v. Canada (Minister of Citizenship and
Immigration), [1996] F.C.J. No. 1025 (QL), at para.
5). Further, if the Board has concerns, it may investigate in order to satisfy
itself with respect to those concerns, and such investigation may include
reconvening the hearing (Salinas v. Canada (Minister of Employment and Immigration) (C.A.),
[1992] 3 F.C. 247, [1992] F.C.J. No. 559 (QL).
[30]
However, there is no duty on the Board to make
further inquiries into matters which have been put before it and on which it is
satisfied. As emphasized by the respondent, the letter in question contained
no particulars regarding the applicant’s children’s situation or how it related
to the applicant’s own claim. Thus, it was unnecessary for the Board to
specifically address the letter in its decision. The allegation of a threat of
harm to the applicant’s children in the letter was in the form of a general
statement which did not provide the Board with sufficient details requiring
analysis in the decision.
[31]
While it is true that these new allegations of
the threat faced by her children may well be relevant to her claim, given the
lack of particulars before the Board, they would be more properly addressed at
the Pre-Removal Risk Assessment stage. I sympathize a great deal with the
applicant, she has obviously been through an extremely trying time, and her
hospitalization along with her inability to contact her lawyer after becoming
aware of the situation facing her children clearly made it difficult to bring
these new allegations before the Board in sufficient detail; however, imposing
an obligation on the Board to make inquiries in this case would be overly
onerous. Indeed, the Canadian system of refugee protection has additional
avenues for dealing with new information such as this, which could not properly
be put before the Board.
[32]
At the close of the hearing, counsel for the
applicant proposed that I certify the following question:
When a hearing is concluded but
a decision has not yet been rendered and the Board receives notice that other
family members have been affected in the home country:
(i) Is there a duty on the Board
Member to make inquiries regarding the new information?
(ii) If so,
is the failure to do so a breach of the principles of
fairness and
natural justice?
[33]
Pursuant to section 74(d) of the Act, an appeal
to the Federal Court of Appeal may be made only if a serious question of
general importance is certified. To be certified, the question must be one
which transcends the interests of the immediate parties to the litigation,
contemplates issues of broad significance or general application, and be one
that is determinative of the appeal (Canada (Minister of Citizenship and
Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (QL), at para. 4).
[34]
I am of the view that the present question does
not meet this threshold; thus the questions shall not be certified. The case
law is clear that the applicant bears the burden of submitting evidence in
support of her refugee claim.
[35]
Based on the foregoing, the present application
for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed.
Danièle
Tremblay-Lamer
Email this Content