Date: 20080124
Docket: IMM-840-07
Citation: 2008 FC 94
Ottawa, Ontario, January 24,
2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SHANICE NYAWIRA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Shanice
Nyawira is a seven-year-old citizen of Kenya. She claims refugee protection on
the basis of her membership in the particular social group of young girls who
face a serious possibility of female genital mutilation (FGM) in Kenya.
[2] The
Refugee Protection Division of the Immigration and Refugee Board (Board)
dismissed Ms. Nyawira’s claim for protection on the basis of two principal
findings. First, the Board found that Ms. Nyawira was never under any threat
of FGM. Second, the Board found that Ms. Nyawira had not rebutted the
presumption of state protection.
[3] This
application for judicial review of that decision is dismissed because: (i) the
Board’s first finding, being one of fact, was not patently unreasonable; and (ii)
the Board’s finding with respect to state protection withstands scrutiny on the
standard of reasonableness simpliciter.
[4] Dealing
with the Board’s first finding, it is settled law that findings of fact made by
the Board with respect to credibility and implausibility are reviewed on the
standard of patent unreasonableness. The Board, in its reasons, noted that Ms.
Nyawira’s mother and designated representative, Ms. Waweru, had made a
conscious decision to leave her daughter in Kenya so as to travel to Canada to
make a refugee claim. The Board reasoned that, as a failed refugee claimant
whose evidence was rejected by the Board, Ms. Waweru was under no pressure to
leave Kenya. The Board further reasoned that, if Ms. Waweru truly believed
that her daughter was vulnerable to FGM, she would not have left her daughter
in Kenya and traveled to Canada.
[5] A
finding of fact is patently unreasonable if it is “clearly irrational” or
“evidently not in accordance with reason.” See: Law Society of New
Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 52. In my
view, the Board’s conclusion on this point cannot be said to be clearly
irrational. As such, it was not patently unreasonable.
[6] Turning
to the Board’s finding that adequate state protection existed, this is a
finding of mixed fact and law that is ordinarily reviewable against the
standard of reasonableness. See: Hinzman v. Canada (Minister
of Citizenship and Immigration) (2007), 282 D.L.R. (4th) 413 (F.C.A.)
at paragraph 38. This standard requires the Court to determine whether, after
a somewhat probing examination, the reasons for the decision, when taken as a
whole, support the decision. See: Ryan, cited above, at paragraph 47.
The Court must exercise proper deference and may be forced to accept that the
decision is reasonable, even if it is unlikely that the Court would have
decided as the tribunal did. See: Ryan, cited above, at paragraph 46.
[7] The
Board’s finding with respect to state protection was as follows:
Counsel drew my
attention to the U.S. Department of State Report on FGM in Kenya and noted that
the practice is ongoing today. The thrust of this evidence is that FGM is on
the decline and that efforts are being made in various directions to curtail
the practice. This is a dated report (2001) and refers to there being “no laws
making FGM/FGC illegal in Kenya”. In fact, more recent evidence (February
2005) shows that Kenya outlawed FGM among girls under the age of 18.
Known as the Children’s Act, the law stipulates that any conviction carries a
penalty of 12 months imprisonment or a fine of 50,000 shillings (approximately
US $670) or both. The Ministry of Health circulated a policy directive making
FGM illegal in all health facilities. Information from 2004 indicates that the
structures to fully implement the provisions of the Act were not all in place
and some sources noted that the Act is not being enforced. The Kenyan
government has also implemented a National Plan of Action for the Elimination
of FGM in Kenya which aims to increase the number of communities supporting the
elimination of FGM. I find that the State is making serious efforts at
protecting persons such as the claimant. Although not perfect there is a
legislative will to correct the problem and with some effort on her part and
assistance from others she can avail herself of the protection offered. The
claimant, through her [designated representative], has not rebutted the
presumption of State protection. [footnotes omitted, emphasis in original] 1
[8] As
a matter of law, there is a general presumption that a state is able to provide
protection to its citizens. There must be clear proof of the state’s inability
to protect its citizens. Thus, a refugee claimant is generally expected to
seek state protection where the agents of persecution are not state actors. A
failure to seek protection is justified only where the evidence supports the
conclusion that protection would not reasonably be forthcoming. See: Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689.
[9] In
the present case, no evidence was adduced that Ms. Nyawira’s mother had ever
sought state protection for her daughter. Thus, the Board was required to
weigh the risk to Ms. Nyawira against Kenya’s willingness and capacity to
provide protection.
[10] Elsewhere
in its reasons, the Board had concluded that Ms. Nyawira was not ever under any
threat of FGM in Kenya. The Board made no error in its discussion of the
evidence before it, which included evidence that Kenya had outlawed FGM, made
it illegal to perform FGM in all health facilities, and implemented a plan for
the elimination of FGM. In my view, after a somewhat probing examination, the
Board’s reasons, when taken as a whole, support its decision. It follows that
the application for judicial review will be dismissed.
[11] Counsel
posed no question for certification, and I agree that no question arises on
this record.
1. I have noted the Board’s unfortunate reference to the
exertion of “some effort” on the part of Ms. Nyawira to avail herself of state
protection. It is, in my view, absurd to speak of a six or seven year old
child exerting any effort to seek state protection. However, I am satisfied
that the nub of the Board’s conclusion was that with the help of her mother
state protection could be accessed. In this connection, the mother had
testified that she opposed any mutilation of her daughter and that before
leaving Kenya she lived and worked in Nairobi. Nairobi is a large
urban centre where Ms. Nyawira would be further away from rural attitudes and
any older female relatives who may wish to see her subjected to FGM.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
“Eleanor R. Dawson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-840-07
STYLE
OF CAUSE: SHANICE
NYAWIRA, Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 15, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: JANUARY 24, 2008
APPEARANCES:
MR. SINA OGUNLEYE FOR
THE APPLICANT
MR. DAVID JOSEPH FOR
THE RESPONDENT
SOLICITORS OF RECORD:
MR. SINA OGUNLEYE FOR
THE APPLICANT
BARRISTER
& SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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