Date: 200200507
Docket: IMM-230-01
Neutral citation: 2002 FCT 516
Ottawa, Ontario, Tuesday, the 7th day of May 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
COLIN WAGOMBE KABURIA
NICHOLAS MUTHUI KABURIA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Colin and Nicolas Kaburia, the applicants, are brothers and citizens of Kenya. They bring this application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated December 14, 2000, which found that they were not Convention refugees.
THE FACTS
[2] The applicants came to Canada as students in 1991 and 1992, respectively. On January 12, 2000, they made a sur place claim for Convention refugee status based on difficulties they feared if they returned to Kenya. Their claim was based on two grounds. First, membership in a particular social group, namely citizens of Kikuyu ethnicity from the Rift Valley whose perceived support of the opposition political party in the 1992 elections triggered attacks by the Kalenjin tribe of Kenyan President Moi. Second, perceived political opinion arising from their father's support of an opposition party, their relationship to a known Kikuyu leader, and their studies abroad.
[3] Messrs. Kaburia testified before the CRDD that they initiated their claims after receiving a phone call in late 1999 from their aunt in Nairobi, which warned them not to return to Kenya because their cousin had been killed. The CRDD accepted that their mother and brother were brutally killed in February 2000, after the applicants' claims for refugee status were initiated.
THE DECISION OF THE CRDD
[4] The CRDD accepted that the applicants are Kenyan citizens, brothers, and of Kikuyu ethnicity. The CRDD did not, however, find the applicants to be credible or trustworthy witnesses. In particular, the CRDD did not accept the applicants' reasons for making their claim when they did. The CRDD found that the applicants had known about their father's troubles in the Rift Valley as far back as the early 1990's, and that his troubles were ongoing. The CRDD did not accept that the trigger for making the claim on January 12, 2000, was a call from their aunt which told them of the death of their cousin Dedan Kimathi, the grandson of a well-known freedom fighter and a relative of their father, and which warned them not to return to Kenya. The CRDD stated:
Both claimants acknowledged that that [sic] at the time of their claims, their student visas had run out and that each had been working illegally (although allegedly initially without being aware that work visas were necessary). The second claimant was directed to an Immigration Inquiry on December 29, 1999 for having a lengthy overstay in Canada and having worked illegally. To our minds, a reasonable man would conclude that the fact that both he, and by extension, the principal claimant, faced deportation is at least as important an incentive to claiming as a purported telephone call from their aunt. Yet both claimants maintain that the trigger for their claims to be Convention refugees was solely their aunt's telephone call, which, according to the second claimant, came on December 31, 1999. The claimants had been in Canada for approximately seven and eight years respectively. That they suddenly received the first telephone call warning them to remain in Canada two days after the Inquiry is just too great a coincidence for us to accept on a balance of probabilities. We do not believe them. [footnote omitted]
[5] The CRDD gave no weight to a letter dated March 3, 2000, from a woman identified as their aunt because the CRDD found that it contained inconsistencies with the applicants' testimony, particularly regarding their knowledge of their father's support of the opposition Democratic Party. The CRDD found that the letter, and particularly its allegation that the applicants' father was an opposition activist, was solicited by the applicants to embellish and enhance their refugee claims.
[6] The CRDD did accept that family members of the applicants had suffered persecution, including death, in the Rift Valley, as a result of ethnic clashes. It also found that the applicants had a well-founded fear of persecution were they to return to the Rift Valley of Kenya. However, the CRDD found that the applicants had an internal flight alternative in Nairobi.
THE ISSUES
[7] The central issues raised by the applicants on this application, as refined in oral argument, are:
1. Did the CRDD err in finding the applicants' testimony was not credible or trustworthy?
2. Did the CRDD err in its determination that an internal flight alternative existed?
ANALYSIS
[8] The two issues raised by the applicants are intertwined and so I will deal with the credibility concerns_ raised by the applicants in the course of considering the determination of the CRDD that an internal flight alternative existed.
[9] The definition of Convention refugee requires a claimant to have a well-founded fear of persecution which renders the claimant unable or unwilling to return to his or her home country. The ability to find a safe refuge within a claimant's home country therefore precludes a finding that the claimant is unable or unwilling to avail himself or herself of the protection of his or her home country. This is the fact situation contemplated in the notion of an internal flight alternative. See: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A).
[10] In Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), the Court held that in order to invoke an internal flight alternative, the CRDD must be satisfied first, that on a balance of probabilities there is no serious possibility of a claimant being persecuted in the part of the country to which it finds an internal flight alternative exists, and second, in all of the circumstances, including the circumstances particular to the individual claimant, it would not be unreasonable for the claimant to seek refuge there.
[11] In the present case, the CRDD relied on the following in support of its conclusion under the first part of the Rasaratnam analysis that there is no serious possibility that the applicants would be persecuted if they returned to Nairobi:
i) Their aunt's written claim of their father's purported support of the Democratic Party was found to be incredible. As a result, there was no evidence of risk to the applicants of persecution because of their relationship with their father.
ii) No documentary evidence suggested that students returning from a lengthy period of study abroad were targeted.
iii) Their cousin was killed in the Rift Valley, not in Nairobi, and he was killed due to his outspokenness.
iv) There was no reliable documentary evidence suggesting that Kikuyus living elsewhere in Kenya, who were survivors of relatives killed in the Rift Valley, were targeted by government agents.
v) The incidents of persecution of the applicants' family occurred in the Rift Valley.
vi) The documentary evidence showed that the 1998 inter-ethnic violence was in specific locales where the Democratic Party had won parliamentary seats.
vii) The applicants' father had lived in Nairobi for 11 years from 1988 until August 1999. There was no evidence that he encountered problems while living in Nairobi.
viii) The Kikuyu form the largest ethnic group in Kenya, making up 22 percent of the population. There was no evidence that the applicants would be persecuted in Nairobi by reason of their Kikuyu origin.
[12] Had the sole basis of the applicants' claim been that they were Kenyan citizens of Kikuyu ethnicity from the Rift Valley, in my view the finding of the CRDD with respect to an internal flight alternative would have been unassailable. I so conclude on the basis of the CRDD's findings on the evidence before it that the documentary evidence showed that the inter-ethnic violence was in specific locales where the Democratic Party had won parliamentary seats, the Kikuyu form the largest ethnic group in Kenya and there was no evidence of persecution in Nairobi due to Kikuyu origin, and there was no evidence that the survivors of relatives killed in the Rift Valley were targeted by government agents.
[13] The issue, in my view, is whether the CRDD properly took into account the particular circumstances of these applicants in view of their claim to a well-founded fear of persecution on the basis of their father's opposition party support, their relationship with a known Kikuyu leader, and their having studied abroad.
[14] Dealing with these particular circumstances in the reverse order, the CRDD found no serious risk of persecution in Nairobi on the basis of the applicants' study abroad. The CRDD so concluded because no documentary evidence suggested that returning students were targeted, and because while the applicants' cousin was killed in 1998 after his return from studies in India, the applicants testified orally that he was killed because of his outspoken political opinion. This finding was one reasonably open to the CRDD on the evidence before it.
[15] As for the risk of persecution in Nairobi due to the applicants' relationship with a known Kikuyu leader, the evidence as to that relationship was far from clear. The leader in question was Dedan Kimathi, who was described in each applicant's Personal Information Form ("PIF") to be the person married to their father's aunt. At the hearing before the CRDD, counsel for the applicants referred to the leader as the applicants' grandfather. That leader's grandson, also named Dedan Kimathi, was the applicants' cousin, and he was murdered upon his return from India. In each PIF, the murder was attributed by the applicants to both the cousin's outspokenness and to his relationship with his grandfather.
[16] In view of the description of the relationship of each applicant with the senior Dedan Kimathi in each applicant's PIF it was open to the CRDD to conclude that the applicants were not similarly situated to their deceased cousin. In view of that, and the fact that at the hearing the applicants only attributed their cousin's death to his own outspokenness, it was reasonably open to the CRDD to conclude that the applicants faced no serious possibility of persecution in Nairobi because of their relationship to the senior Dedan Kimathi.
[17] This then leaves for consideration the risk of persecution in Nairobi on the basis of their father's political involvement with the opposition Democratic Party. The CRDD found there to be no serious possibility of persecution because the CRDD rejected the evidence of the father's political involvement, found that all of the incidents of family persecution occurred in the Rift Valley, and found that the applicants' father had lived in Nairobi from 1988 until August 1999 and there was no evidence that he had encountered problems while living there.
[18] There are some difficulties with the reasons provided by the CRDD.
[19] First, the evidence did not support the conclusion that all of the applicants' family members were killed in the Rift Valley. While the CRDD stated that the cousin was killed in the Rift Valley, there was no evidence before it to that effect.
[20] Second, the nub of the CRDD's decision on this point rests upon its rejection of the evidence of the father's political involvement. This evidence came from the letter dated March 3, 2000 written to the applicants by their aunt which warned them that they would be targeted because of their father's political involvement.
[21] The CRDD rejected the aunt's letter and stated that it gave no weight to it because there was a discrepancy between the applicants' testimony and the contents of the letter. The applicants claimed they had not been aware of their father's involvement in the Democratic Party prior to receiving the letter, although the letter stated "[a]s you are aware, your dad had joined the Democratic Party and was a strong campaigner of democracy supporting the opposition candidate ... who became the area MP". The CRDD found it implausible that the applicants would not have known of their father's political involvement.
[22] In my view, the discrepancy between the content of the letter and the applicants' stated knowledge of their father's political involvement was not a proper basis for giving no weight to the letter. The applicants provided an explanation for not knowing of their father's political involvement, which was that they were too young to know of this involvement when they left Kenya and that subsequently when they spoke to their father he kept reassuring them that the difficulties were a passing phase and that things would get better. The CRDD failed to deal with that explanation and ought to have given reasons for rejecting that explanation.
[23] Moreover, while the CRDD found the applicants lacked credibility due to the timing of their claims, the CRDD then relied upon their testimony that they did not know of their father's political involvement to discredit the letter sent from their aunt in Kenya. While the CRDD was entitled on the giving of proper reasons to find it implausible that the applicants would not know of their father's political involvement, the CRDD was not entitled to rely upon that implausibility to impeach the evidence of the letter that the father was politically involved. The initial implausibility finding against the sons was itself premised on the view that the father was involved in politics so that his sons ought to have known that. The CRDD could not use the father's political involvement to discredit the sons, and then use their lack of knowledge of the political involvement to discredit the evidence of the involvement.
[24] The CRDD also discredited the contents of the aunt's letter because it found that the letter was solicited. The CRDD so concluded because:
i) The applicants had spoken by telephone to their aunt in December, 1999.
ii) The letter, while dated March 3, 2000, was not forwarded to the CRDD until June 20, 2000.
iii) Nicholas testified that he spoke again with his aunt by telephone in June, 2000.
iv) The letter contained seemingly gratuitous information for which the claimants could not provide any satisfactory explanation.
v) The author of the letter was a relative, and not an objective source of information.
[25] With respect to those findings, solicitation does not per se invalidate the contents of the letter, nor does the fact that the letter was written by a relative.
[26] As for what the CRDD found to be gratuitous information, examples of gratuitous information included mentioning the name of the President's tribe, that the local candidate became the area MP, that the applicants' father had joined the Democratic Party and had been a strong campaigner of democracy supporting the opposition candidate, and that the father had been continuously harassed in his real estate business. When the CRDD suggested to the applicants that this seemed to be odd information for the aunt to have set out in her letter, the applicants responded to the effect that they had left Kenya in their mid-teens and were not, in their aunt's view, up-to-date. This explanation was not commented upon by the CRDD. In my view, the only aspect of the aunt's letter that seems gratuitous is the mention of the name of the President's tribe. This is not sufficient in and of itself to dismiss the validity of the letter and in so doing, the CRDD erred.
[27] However, the burden of proof was on the applicants to demonstrate that they could not avail themselves of an internal flight alternative in Nairobi. Notwithstanding the error the CRDD committed in rejecting the aunt's letter on the grounds stated by the CRDD, and even if the CRDD had properly noted that the location of the cousin's death was not known, it remains that there was no evidence before the CRDD that either the applicants' father or their aunt had ever been targeted in Nairobi. Indeed, notwithstanding the aunt's statement about the father's political involvement, the aunt's letter was also clear that the father's difficulties only arose when he left Nairobi.
[28] It was, therefore, open to the CRDD to conclude on the evidence that on a balance of probabilities there was not a serious possibility that the applicants would be persecuted in Nairobi.
[29] The CRDD went on to conclude that both applicants were familiar with Nairobi, their aunt lives in Nairobi, and both applicants were healthy, young, reasonably well-educated, and demonstrated initiative. In the result, the CRDD concluded that the applicants had provided insufficient evidence to establish that locating in Nairobi was not an option reasonably open to them.
[30] That finding was reasonably open to the CRDD on the evidence before it. It follows, and the CRDD reasonably determined, that it would not be unduly harsh for the applicants to move to Nairobi so that the second branch of the test in Rasaratnam was met.
[31] I therefore find that the CRDD committed no reviewable error in finding there to be an internal flight alternative for the applicants in Nairobi.
[32] I have considered the applicants' argument that the CRDD failed to apply or consider the principle established by the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Sharbdeen (1994), 23 Imm. L.R. (2d) 300. There, the Court found that once a well-founded fear of persecution is found at the hand of an agent of persecution it is unreasonable to expect a claimant to seek refuge in another part of the country controlled by the same agent of persecution. The applicants submitted that the ethnic violence in Kenya is state-sanctioned so that their well-founded fear of persecution extends to all of the territory controlled by the government, which is all of Kenya.
[33] However, in my view, the facts that the Kalenjin tribe is the ethnic group of the President of Kenya, that its members hold many key posts in the government, and that there is evidence to suggest that the government was involved in sponsoring inter-ethnic violence, must be weighed against the facts that the inter-ethnic violence was documented as having occurred only in specific locales, and there was no reliable documentary evidence before the CRDD suggesting that Kikuyus living elsewhere in Kenya, who were survivors of relatives killed in the Rift Valley, were targeted by government agents. In the result, the CRDD's conclusion that the applicants did not have a well-founded fear of persecution by government agents was not unreasonable. It was a conclusion supported by evidence before the CRDD.
[34] For these reasons, the application for judicial review will be dismissed.
[35] The applicants posed a number of questions for certification. However, I am satisfied that this case turns upon the application of facts to settled principles of law. It follows that no question will be certified.
ORDER
[36] IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-230-01
STYLE OF CAUSE: Colin Wagombe Kaburia and other v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 6, 2001
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: May 7, 2002
APPEARANCES:
Mr. Micheal CraneFOR THE APPLICANTS
Ms. Rhonda MarquisFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Micheal CraneFOR THE APPLICANTS
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada
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