Date: 20110218
Docket: IMM-3202-10
Citation: 2011
FC 202
Vancouver, British
Columbia,
February 18, 2011
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
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RUTH MUTHONI CHEGE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The Applicant, Ms. Ruth
Muthoni Chege, a 29-year-old woman and a citizen of Kenya, seeks judicial
review of the May 20, 2010 decision of a panel of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Panel)
wherein it was determined that the Applicant was neither a “Convention refugee”
nor a “person in need of protection” under sections 96 and 97(1) of the Immigration
and Refugee Protection Act (IRPA).
Factual Background
[2]
After
the death of her father in 2005, the Applicant’s uncle evicted her family,
including three brothers, three sisters and her mother, from her home in the
Kiambu District. The family relocated to Naivasha Town, Nakuru District in Rift Valley. The Applicant
worked in Nairobi and visited the family
on weekends.
[3]
Election
violence in 2008 caused the Applicant to move back to Naivasha Town and
eventually back to Nairobi with her family where they were taken in by an old friend
of the father’s, John Karume.
[4]
In
April 2008, Mr. Karume took an interest in the Applicant and began to invite
her to accompany him to various functions. She refused these invitations. Mr.
Karume eventually asked the Applicant to marry him indicating that if she
refused he was going to throw the family out of his home. Her brothers
pressured her to marry him for their own advantage since Mr. Karume was wealthy
and a marriage would improve their economic situation. They threatened that if
she did not agree to marry Mr. Karume, she would suffer the consequences. The
Applicant states that her older brother had assumed the position of head of the
household since the death of her father in 1995, and according to cultural
norms, she was expected to obey him.
[5]
The
Applicant managed to keep her brothers at bay by convincing them the marriage
was a possibility, but that she wanted to finish her education first. In
the circumstances, the Applicant decided to leave Kenya and come to Canada, a country she knew by reason
of a prior visit during World Youth Day in 2002. She fled Kenya without informing her
brothers and arrived in Canada on July 31, 2008.
[6]
She
claimed refugee protection on September 12, 2008, because she feared
retribution from her brothers for having disobeyed them and for leaving Kenya without telling them.
The Decision under Review
[7]
The Panel found that the
Applicant was not a Convention refugee as she did not have a well-founded fear
of persecution in Kenya. The Panel also found
that the Applicant was not a person in need of protection in that her removal
to Kenya would not subject her
personally to a risk to her life or to a risk of cruel and unusual treatment or
punishment. The Panel also determined that the Applicant had not rebutted the
presumption of state protection.
[8]
The
Panel found the Applicant to be a credible witness but not to have a
well-founded fear of persecution. It accepted that she had a subjective fear of
her brothers, but found this fear to be totally speculative and unsupported by
the evidence. The Panel noted that the treatment she suffered does not amount
to a serious harm in that it was not repetitive, it was not systematic, and it
did not amount to a fundamental violation of her human rights. Further, she had
not been in contact with her brothers since July 2008, and other than one
recent phone call, there is no evidence that they tried to contact her or that
they are continuing to threaten her. The Panel also observed that there
is no evidence to show that any of the Applicant’s other siblings who are
not married have been threatened or harmed by the Applicant’s brothers in order
to obtain financial gain. The only evidence of recent violence was an attack by
the Applicant’s brother on her mother in 2010. There is no evidence that
this incident is in any way connected to the Applicant who was in Canada at the time.
[9]
Regarding
state protection, the Panel observed that states are presumed to be capable of
protecting their citizens except in situations where the state is in a complete
breakdown. The Panel found that Kenya is not in a state of complete breakdown and
that the Applicant does not rebut the presumption of state protection simply by
questioning its effectiveness and not testing it. The Panel found that the
Applicant gave two examples from her own experience where state protection was
sought and provided. The first, when her brother was arrested and imprisoned
for assaulting his girlfriend, and the second, when her brother was detained
for three days for attacking her mother and damaging her home.
[10]
In
its reasons, the Panel acknowledged the documentary evidence on country
conditions in Kenya explaining the prevalence of domestic violence against
women in Kenya, and that state
officials were complicit in sexual violence acts during the election violence
in 2008. The Panel noted that the country documents also indicate that rape is
illegal, and while there is no legislation against domestic violence, assault
is illegal. The domestic violence that the Applicant alleges in her claim is
not even the type of domestic violence referred to in the country documents, as
there is no spousal link.
Issues
[11]
The
Applicant raises the following issues:
1. Did the Panel err by
misapplying the test for finding a well-founded fear of persecution?
2. Did the Panel
take into account irrelevant facts?
3. Did the Panel
err by misapplying the test for state protection?
4. Did the Panel make perverse
findings related to the issue of violence against women?
Standard of Review
[12]
The
applicable standard of review for findings of fact and ultimate decision is
reasonableness. The Court may only intervene if the decision falls outside the
“range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47).
[13]
Issues
relating to procedural fairness and the application of the correct legal test
to be applied are reviewable on the correctness standard (Khosa v. Canada
(M.C.I.), 2007 FCA 24).
Analysis
1. Did
the Panel err by misapplying the test for finding a well-founded fear of persecution
and did it take into account irrelevant facts?
[14]
The
Applicant argues the Panel applied too high a standard of proof in applying the
test for a well-founded fear of persecution when it found, “I did not find
that you demonstrated that you would be persecuted if you returned to Kenya.” It is submitted that the
Panel misstated the test in that the test requires only that “a reasonable
chance” of persecution be established. By finding as it did, the Applicant
contends that the Panel committed an error of law. I disagree. In its
reasons, the Panel on two occasions correctly articulated the proper test for
determining a well-founded fear of persecution. In framing the test, it asked
whether the Applicant “would face a serious possibility of persecution if
returned to Kenya.” Later in its reasons,
it found “there is no evidence to show that there is a serious possibility that
they would persecute you”. Reading the Panel’s reasons as a whole, I am
satisfied the Panel applied the correct legal test.
[15]
The
Applicant also challenges the Panel’s finding that, “there is no evidence of
any other siblings being sought after by Mr. Karume or your older
brothers for any reason at all”. The Applicant argues that this is irrelevant
since there was never any suggestion by the Applicant that Mr. Karume wanted to
marry any of her siblings or that her brothers contemplated such a thing. I
disagree. A finding by the Panel which relates to whether the brothers or
Mr. Karume had ever threatened the Applicant’s siblings for “any reason”
is a relevant factor for consideration in the circumstances. I do agree,
however, that this finding could not be determinative.
[16]
The
Applicant further claims that while the Panel properly stated the test
associated with a well-founded fear of persecution under section 96 as “forward
looking”, in its reasons it failed to take into account how the Applicant’s
leaving Kenya would be a factor in the analysis. It is argued that the Panel
noted the Applicant had been able to keep her brothers “at bay until you left Kenya in July 2008,
managing to avoid the marriage and carrying out of any threats.” The Panel also
acknowledged that she was able to avoid repercussions from her brothers because
she managed to convince them the marriage was possible. The Applicant argues
that this is no longer the case and looking forward, the situation is
fundamentally different.
[17]
The
Applicant contends that while the Panel considered her treatment before she
left Kenya, it failed to consider her circumstances if she were required to
return to Kenya to face her brothers after having deceived them and disobeyed
them by lying about her intention of marrying Mr. Karume and leaving the
country to avoid their authority.
[18]
The
Applicant argues that the Panel erred by concluding there was “no evidence to
show” that there is a serious possibility she would suffer persecution at the
hands of her brothers if returned to Kenya. The Applicant says there is evidence on the
record that she would so suffer. She points to her own testimony about the
culture of paternalism and the serious consequences of defying her brothers.
She testified about her fear and she was found to be credible by the Panel.
[19]
I
reject the Applicant’s arguments. The Panel did consider the Applicant’s claim
of how leaving Kenya for Canada could ground her fear
of future persecution. At paragraph 18 of its reasons, the Panel stated, “You
expressed a fear to return to Kenya
due to the potential of eruption of political violence in the coming elections
in 2010, as well as a fear of retribution from your two brothers whom I
previously mentioned. This retribution is a result of having disobeyed them in
regard to a marriage to Mr. Karume, as well as leaving the country without telling
them. Culturally, you showed them disrespect”. The Panel expressly dealt
with the Applicant’s allegation. It determined that she was merely speculating
that her brothers were angry with her for leaving Kenya. It noted that the
Applicant provided no supporting evidence for her assertions and found no
evidence that her brothers are continuing to threaten her. The Panel further
noted that the treatment she suffered did not amount to a serious harm in that
it was not repetitive, it was not systematic, and it did not amount to a
fundamental violation of her human rights.
[20]
The
Panel provided detailed reasons for rejecting the Applicant’s refugee claim and
its finding that she is not a person in need of protection. In so doing, I find
that the Panel applied the correct legal tests, fairly considered all of the
evidence and committed no reviewable errors in coming to its decision. The
decision falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
2. Did
the Panel err by misapplying the test for state protection and make perverse
finding relating to the issue of violence against women?
[21]
Since my above determination
is dispositive of the application there is no need to consider the parties’
arguments relating to the Panel’s findings on state protection and its
assessment of the country documentation relating to violence against women in Kenya. Any error committed
by the Panel would not be determinative.
Conclusion
[22]
For
the above reasons, the application for judicial review of the May 20, 2010
decision of a Panel of the Refugee Protection Division of the Immigration and
Refugee Board of Canada will be dismissed.
Certified question
[23]
The parties have had the
opportunity to raise a serious question of general importance as contemplated
by paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27, and have not done so. I am satisfied that no serious question of
general importance arises on this record. I do not propose to certify a question.
ORDER
THIS COURT ORDERS that:
1. The
application for judicial review of the May 20, 2010 decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada is dismissed.
2. No
question of general importance is certified.
“Edmond P. Blanchard”
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