Date:
20130307
Docket: IMM-7383-12
Citation: 2013 FC 237
Ottawa, Ontario, March 7, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
|
|
MATHEW MUTUA
MULI
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant challenges the decision of the Refugee Protection Division
of the Immigration and Refugee Board that found that he was neither a
Convention refugee nor a person in need of protection under section 96 and
subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27, respectively. The determinative issues challenged by the applicant are the
Board’s findings of state protection and the availability of an internal flight
alternative (IFA).
[2]
In my view, the Board’s section 97(1) findings were reasonable and this
application must be dismissed.
[3]
The applicant is a citizen of Kenya. In his early teens, his parents sent him off to attend secondary school with
relatives in order to avoid recruitment by the “Mungiki,” a
“politico-religious” criminal group and movement in Kenya whose views are
generally antithetical to “western” values. Their influence, especially in
rural and impoverished areas, is significant; one main tactic is to recruit
boys and young men into the organization. Like many gangs, it extorts vulnerable
people in exchange for its “protection.”
[4]
Around or after graduating from college in the
early 2000’s, the applicant claimed that he and some members of his family and
extended family started “a group known as "Tethya Uthetheke" whose
main goal was to educate the youth on better means of living apart from living
on the hand outs that they collect from people for protection, fight against
female genital mutilation, right for girl child education and women
empowerment.” In short, this group was aimed at counteracting the influence of
the Mungiki.
[5]
The applicant claimed that because they had
started that group, the Mungiki killed his brother, Henry, in 2002. No
corroborating evidence was provided that Henry was deceased, or killed by the
Mungiki, or killed by the Mungiki because he started or participated in Tethya
Uthetheke. Furthermore, there was no evidence that the applicant or anyone
else attempted to have the police investigate Henry’s alleged murder, or to
obtain a police report. The applicant testified that “we did not get police
reports or anything about it, so we believe there was something behind it.” The
applicant also testified that Tethya Uthetheke “started in 2003 that is when
actually started,” i.e. after his brother’s death. Perhaps surprisingly, the
Board did not challenge the applicant’s credibility or the accuracy of his
evidence regarding his brother’s death.
[6]
Between 2001 and 2009, the applicant moved to
and resided in Botswana where he met his current wife. With the exception of
the alleged murder of the his brother and the description of one incident
involving the applicant’s cousin and that cousin’s wife in 2004, for which no
link to the Mungiki or Tethya Uthetheke was even alleged, the applicant’s PIF
is entirely silent as to that period of time and, more specifically, what
Tethya Uthetheke was doing. The applicant’s evidence at the hearing shed
little light on how Tethya Uthetheke operated during this period, who was
involved, or whether there were further incidents with the Mungiki. Again, the
Board did not challenge this evidence, or lack thereof.
[7]
In 2009, according to his PIF, when the
applicant “got a chance to come and school here in Canada,” despite the alleged
deadly friction between his family’s opposition group and the Mungiki, he …
“had to send [his] wife back to Kenya [i.e. where the Mungiki operated] where she established a small business of chicken
rearing. Unfortunately the business lasted only 8 months since Mungiki had
demanded her to pay protection fee, which she could not afford. At that time
Mungiki had become more of a government arm that operates without fear. She
was threatened with circumcision and had to flee to her home district in
Makueni where she lives with her aunt [name]. She could not go to her parent’s
house because it would be too easy to be traced.”
[8]
It is not at all clear based on the record why the
applicant “had” to send his wife back to Kenya in early 2009, into the path of
the Mungiki. Moreover, in light of the Mungiki’s alleged threats to mutilate
his wife after he departed, and their apparent pursuit of and speculated
attempts at “tracing” her location, it is not clear why the applicant remained
in Canada, studying accounting and working part-time on a student visa in
Canada, without interruption. Whatever the reason, according to the PIF, this
is what allegedly happened next:
While my wife was still in hiding in
Makueni with our children, we still continued with our campaign through the
Tethya Utetheke with my other sister Elizabeth. Unfortunately Elizabeth was
killed by Mungiki in October 7, 2010 in Nairobi. She was attacked while she
slept in her house in Huruma estate.
[9]
As proof of Elizabeth’s murder at the hands of
the Mungiki, the applicant provided the Board with a “Permit for Burial” issued
by the Republic of Kenya, which shows nothing more than that Elizabeth passed
away in October 2010. No cause of death is identified and there was no independent
evidence that she had died at the hand of the Mungiki. Even the applicant’s
evidence in this respect was hearsay.
[10]
Despite that his sister had been brutally
murdered by the Mungiki for her involvement in Tethya Uthetheke, the group he
co-founded, and that his wife and children remained in Kenya and had previously
been specifically threatened and forced into hiding by the Mungiki, the
applicant remained in Canada studying accounting and working part time through
the fall and winter of 2010, and into the spring of 2011, without status.
[11]
Then, in April 2011, the applicant applied for
another student visa in Canada. It issued on June 6, 2011, and was valid until
September 30, 2011. Within a week of this visa being issued, the applicant was
on a plane to Kenya “to see [his] wife and children due to the fear she was
having after [his] sister [Elizabeth] was killed” some eight months earlier.
[12]
He says that two incidents occurred to him while in Kenya. First, he was assaulted in his house at night by some youth whom
he believed were Mungiki. They stole his passport and ran away when neighbours
were awakened. He says that he went to the neighbouring police station and
reported the incident. The policeman asked him if he had money because if he
could pay then the policeman would see if he could get the passport back. The
applicant says that he understood that the policeman would obtain it from the
Mungiki if he paid. He did and he recovered his passport.
[13]
Second, when visiting his father, he was
attacked by “Cousin John” and seven men who asked why his wife had failed to
pay the protection fees. It was at this point that he learned that his Cousin John
was part of the Mungiki. When he informed them that his wife would not pay any
money, they beat him. He says that “they slashed me with a machete on my right
hand finger as I covered my head; I was also hit with a blunt object until I
was unconscious.” He says that he was taken to Matuu district hospital after
obtaining a P3 form from the police at Matuu Police station since he could not
attend at the hospital without a police report. He says that he was admitted
for two days. When he recovered, he returned to Canada.
[14]
His oral evidence differed in substantial detail
from this Personal Information Form (PIF) account; however, the Board made no
mention of these differences. Moreover, the Board makes no reference to the
fact that these police reports do not mention the Mungiki or Cousin John;
rather, they mention “unknown” persons.
[15]
The applicant claims that the Mungiki want to
kill him and his family for supporting Tethya Uthetheke and not supporting them
financially, that he is unable to obtain state protection, and that there is no
IFA in Kenya. The board found that there was both state protection and an IFA
in Kenya.
State
Protection
[16]
The applicant submits in his memorandum that he:
… took all reasonable steps to seek state
protection in Kenya before he fled. The applicant reported the incidents to
the Police. It is further submitted that the respective institutions did not
act appropriately within the urgency of the acts complained of and if the
applicant had waited much longer, it would have put his live [sic] in danger.
Applicant’s brother and sister were murdered and murders have not been resolved
by the police.
[17]
In my view, based on the record, the applicant
did not take all reasonable steps to seek state protection in Kenya. First, there is no evidence that he or anyone made any effort to get the police involved in
Henry’s alleged murder in 2002. Similarly, there was no evidence about the
police’s involvement after Elizabeth’s alleged murder in 2010, although he
claims that her son reported her death.
[18]
The applicant himself made little effort to seek
state protection after the two 2011 incidents involving him. The first attempt
– to report his stolen passport – was only a local attempt. The applicant’s
allegation of complicity or corruption for one police officer at the Matuu
police station is no more than a single local failing in the state protection
apparatus. It is trite that that is not sufficient evidence of failed state
protection: See, e.g., Flores Carrillo v Canada (Minister of Citizenship
and Immigration), 2008 FCA 94 at paras 32–36. Regarding the second, far
more serious incident, it is not at all clear based on the applicant’s evidence
what steps he actually took to seek the protection of the state. While he
produced a request for a police report allegedly made on July 3, 2011, the day
after the alleged beating, it concerns only some electronics stolen on July 2,
2011; there is no indication whatsoever that any police report was made about
the far more serious beating.
[19]
The P3 form noted at various points that
“unknown” persons allegedly attacked the applicant, even though the applicant
testified that he knew at that point that it was Cousin John that had tracked
him down and who was behind the attack. This contradicts the applicant’s claim
that he identified Cousin John to the police. In any event, even if the
applicant’s oral testimony is to be preferred, his second attempt was no more
than another local attempt, and no less at the same police station he allegedly
already knew was complicit with the Mungiki. Thus, objectively, the applicant
did not demonstrate that he exhausted the state protection available to him in Kenya.
[20]
The Board’s finding that the applicant had not
rebutted the presumption of state protection, on these facts, is reasonable.
Internal Flight
Alternative
[21]
The applicant’s argument regarding IFA is terse:
the Board failed to appreciate that Cousin John, “leader of Mungiki,” awaits
the applicant in Kenya and will track him down “through familiar
connection[s].” Thus, it does “not really matter which part of the country the
claimant may relocate.”
[22]
The simple answer is that the Board was faced
with evidence that contradicts that submission. Despite Cousin John’s alleged ability
to find the applicant throughout Kenya, the applicant’s wife and family have
lived safely in Kenya since before the most recent incidents. Although the
Board did not expressly decide so, it goes without saying that it was entitled
to conclude that Cousin John was not in fact the kind of threat alleged by the
applicant.
[23]
Further, the Board, citing independent reports,
does a credible job of setting out the geographic areas in which the Mungiki
operate and it finds, reasonably, that the organization is not pervasive
throughout Kenya. The applicant has the burden of establishing that there is
no IFA. Quite simply, he failed to do so.
[24]
This application must be dismissed. No question
was proposed for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this
application is dismissed and no question is certified.
"Russel W. Zinn"
Email this Content