Ottawa, Ontario, September 26, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant, Melodicah Ng’aya, challenges a pre-removal risk assessment (PRRA) decision in which it was determined that she could safely return to Kenya by relocating to an internal flight alternative (IFA), specifically to Mombassa.
[2] Ms. Ng’aya entered Canada in 2001 under a study visa issued in Nairobi. She was then 18 years old. The Record indicates that she did not seek refugee protection at any time since coming to Canada but she did make a PRRA application on October 12, 2005.
[3] At the request of the PRRA Officer (Officer), Ms. Ng’aya’s PRRA application was supplemented with a six-page narrative describing her years in Kenya. She outlined a history of severe sexual abuse at the hands of her father commencing at a very young age. Her father’s aberrant conduct, she said, resulted from his mental illness. When Ms. Ng’aya finally brought this abuse into the open she was banned from the household, but, at the request of her mother, she was taken in by an uncle. At the age of seven Ms. Ng’aya’s father attempted to force her into an arranged marriage but she was again protected by her uncle.
[4] Through Ms. Ng’aya’s early teenage years she attended school with the support of her uncle. She said that it was her uncle who arranged for her to study in Canada. Shortly before Ms. Ng’aya came to Canada her uncle was involved in a serious disabling “accident” which was allegedly caused by a gang acting under the direction of Ms. Ng’aya’s father. Ms. Ng’aya said that this attack was intended for her. Although Ms. Ng’aya appears to have escaped the unwanted attention of her father for a number of years while she attended school and lived in Nairobi, the Officer specifically noted her evidence that, just before leaving Kenya, she was located and targeted by a cult acting at the direction of her father.
[5] Since coming to Canada Ms. Ng’aya has had a child who is now one year of age. She advised the Officer that, when her father learned of the out-of-wedlock birth of her child, he threatened to kill her because of the resulting disgrace. This threat, she said, included a statement that she should be happy she was no longer within his reach.
[6] The Officer seems to have accepted most of Ms. Ng’aya’s evidence as reliable. It is certainly the case that the outline of her evidence in the PRRA decision gives almost no indication of a concern about its trustworthiness. Indeed, with respect to the evidence of the risk posed by Ms. Ng’aya’s father, the Officer came to the following conclusion:
I do, however, accept that Kenyan authorities are unlikely to intervene to protect the Applicant from harm at the hands of her father, given that there is evidence that they have demonstrated an unwillingness to intervene in domestic disputes and that there are traditions granting extensive impunity to fathers and husbands who commit violence in their families.
[7] The Officer did conclude, however, that Ms. Ng’aya had a safe and viable IFA in Mombassa. That aspect of the decision is set out in the following passage:
During the ten years that the Applicant lived in Nairobi, and despite having aggravated her father and her father having joined the Mungiki cult, her father was unable to locate her despite his relative proximity. There is little if any evidence to establish, on a balance of probabilities, that the Applicant experienced any difficulties residing in Nairobi due to her father’s previous political activities.
I am satisfied that the Applicant could safely relocate to Mombasa. Over four years have passed since she departed from Kenya and Mombasa is a significant distance from both Kericho and Nairobi, where the Applicant previously lived. Mombasa is characterized by the US State Department as an urban centre in a country of approximately 32 million people. While the Applicant’s father is a member of the Mungiki cult, when the Kenyan government’s efforts to combat it, and the geographic and demographic size of Kenya and the Applicant’s profile, are considered, I find that it is highly unlikely that her father or his associates in the Mungiki cult would be capable of locating and targeting her for serious harm in Mombasa.
[8] Although counsel for Ms. Ng’aya has raised a number of issues as a basis for challenging the PRRA decision, I need only refer to one of those in disposing of this application.
Issues
1. What is the required standard of review?
2. Does the PRRA decision stand up to review with regard to the IFA conclusion?
Analysis
[9] I accept as accurate the Respondent’s description of the standard appropriate to a review of a PRRA decision set out in paragraph 5 of its Further Memorandum of Argument as follows:
In Kim this Court exhaustively analyzed the standard of review applicable to PRRA decisions. Justice Mosley determined that “in the judicial review of PRRA decisions the appropriate standard of review for questions of fact should generally be patent unreasonableness, for questions of mixed law and fact, reasonableness simpliciter, and for questions of law, correctness”. When a PRRA decision is considered “globally and as a whole,” the appropriate standard of review is reasonableness.
[10] The IFA issue raised in this application is one of mixed fact and law which carries a standard of review of reasonableness. The decision must, therefore, be sufficiently sound that it can stand up to a somewhat probing examination.
[11] There are two aspects of the Officer’s IFA conclusion which do not satisfy the reasonableness standard.
[12] In concluding that Ms. Ng’aya would be safe in Mombassa from her father and his cult associates, the Officer relied heavily on a supposed ten year period of relative tranquility resulting from her father’s ostensible inability to locate her. This finding is at odds with Ms. Ng’aya’s evidence that her whereabouts had been discovered by her father’s associates just before she left for Canada. The PRRA decision does not discount Ms. Ng’aya’s evidence on this point, and in the context of identifying a viable IFA, the decision ignores this evidence.
[13] The PRRA decision treats Ms. Ng’aya’s evidence of a more recent threat communicated to her in Canada motivated by the birth of her child in the same way – the decision refers to the evidence but fails to consider its significance in the context of the IFA analysis. If this was, in fact, a further aggravation to Ms. Ng’aya’s father, it had the potential to place her at increased risk in Kenya. Some consideration of this evidence was necessary for a thorough assessment of the risk and the Officer’s failure to mention it as a part of the risk analysis gives rise to an inference that it was overlooked on that issue. A decision that ignores important evidence in its analysis does not meet the standard of reasonableness: see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, 157 F.T.R. 35 at para. 17.
[14] The other troubling aspect of the PRRA decision concerns the conclusion that it was “highly unlikely that [Ms. Ng’aya’s] father or his associates in the Mungiki cult would be capable of locating and targeting her for serious harm in Mombassa”. This aspect of the decision is based upon the Officer’s findings that Ms. Ng’aya had lived for 10 years without incident in Nairobi (a suspect finding as noted above) and that she could effectively disappear into the urban surroundings of Mombassa. It is highly speculative and unreasonable to draw an inference of safety based upon evidence of relatively small geographic distances between the persecutor and victim and upon vaguely expressed demographic considerations. Here I am drawn to the reasoning of Justice Francis Muldoon in the case of Reynoso v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 117, 107 F.T.R. 220. At paragraph 13 of that decision, the Board’s IFA finding was described as tenuous in a situation similar to the current case:
She is a mother and she looks after her child. How, it was asked, could they find you among the 20 million other inhabitants of Mexico City? They obviously followed my mother who came to visit me, she justly answered. In finding the capital city to be her IFA, the CRDD had to have ignored the two incidents above mentioned and to have considered the other 20 million inhabitants to form some sort of protective insulation around the applicant. This is a much different IFA from that of Columbo for Tamils, or the vast sub-continent of India for certain Sikhs. This applicant is specifically targeted by her resourceful persecutor. She is one of a small group, infinitely small compared with, say, the vast numbers of Tamils or Sikhs mentioned above. She is in such plight, specifically targeted, but not specifically guarded by the State. She cannot really rely on State protection only the "insulating factor of a big city". This seems not to be a case of someone going away and being of no further interest to the persecutors.
If Ms. Ng’aya’s father posed a serious risk to her safety and if, as the Officer found, state authorities could not protect her from him, the potential for harm could not be so readily dismissed. The logical inference to draw from the evidence recorded in the PRRA decision is that Ms. Ng’aya’s whereabouts in Mombassa would eventually become known to her father particularly if she was unable or unwilling to isolate herself totally from all of the other members of her family and past family acquaintances. Such segregation is an impossible burden to place upon a young woman looking after a baby in a challenging and unfamiliar urban setting. The issue of personalized risk needs to be assessed against the realistic social and economic situation facing a claimant who is expected to return.
[15] For these reasons I have concluded that the PRRA decision is unreasonable and must be set aside.
[16] At the conclusion of argument in this case I allowed the parties to address the issue of a certified question within seven days of the rendering of this decision. The Applicant submitted proposed questions for certification but those questions do not arise from this decision. Although this decision is substantially fact-based I will, nevertheless, allow the Respondent seven days to consider the issue of a certified question and to advise me of its position. The Applicant will then have three days to reply.
JUDGMENT
THIS COURT AJUDGES that the PRRA decision is hereby set aside with the matter to be redetermined on the merits by a different Officer.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-474-06
STYLE OF CAUSE: MELODICAH NG'AYA v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Winnipeg, MB
DATE OF HEARING: September 13, 2006
APPEARANCES:
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Mr. David Matas
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Mr. Omar Siddiqui
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SOLICITORS OF RECORD:
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David Matas, Barrister & Solicitor
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John Sims Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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