Citation: 2021 RLLR 49
Tribunal: Refugee Protection Division
Date of Decision: April 12, 2021
Panel: Tamara Thomas
Counsel for the Claimant(s): Aleksandr Radin
Country: Turkey
RPD Number: TB9-33040
Associated RPD Number(s):
ATIP Number: A-2022-01594
ATIP Pages: N/A
REASONS FOR DECISION
[1] The Claimant, XXXX XXXX XXXX (“Claimant”), is a citizen of Turkey claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).
DETERMINATION
[2] Having considered the totality of the evidence, I find the Claimant to be a Convention refugee under section 96 of the IRPA as he would face a serious possibility of persecution on the basis of his membership in a particular social group, specifically, due to his sexual orientation as a gay man, should he return to Turkey.
ALLEGATION
[3] The allegations of this claim are found in the Claimant’s Basis of Claim (“BOC”) form and subsequent amendment. In essence, the Claimant is a 28-year-old man who alleges harm from Turkish society, Turkish authorities, and his family, in particular his father and his uncles, due to his sexual orientation. The Claimant identifies as gay. He also alleges a fear of harm arising from his father’s perceived and actual political opinion as a Hizmet supporter (referred to as the Fethullah Terrorist Organization, or “FETO”, by the Turkish state). The Claimant’s father is a member of the military and has already been investigated, tried and released due to his perceived membership with FETO. The Claimant alleges his house was raided in October 2019, while he was still in Turkey, and the gendarmerie detained both himself and his father. The Claimant alleges his family learned of his sexual orientation during this raid. The Claimant also alleges fear of harm due to identifying as agnostic, as well as his conscientious objection to military service. He alleges that state protection is not available to him and that he would not be able to live safely anywhere in Turkey.
ANALYSIS
[4] In making this assessment, I have considered all the evidence, including the oral testimony and documentary evidence entered as exhibits. I have also considered the Chairperson ‘s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.i
IDENTITY
[5] I am satisfied of the Claimant’s personal and national identity as a citizen of Turkey, which has been established on a balance of probabilities by his genuine Turkish passport, a copy of which is in evidence.ii The original was seized upon the Claimant making his refugee claim in Canada.
NEXUS
[6] I find the Claimant has established, on a balance of probabilities, a link between what he fears and a Convention ground; specifically, on the basis of his membership in a particular social group, due to his sexual orientation. This claim will therefore be assessed under s. 96 of the IRPA.
CREDIBILITY
[7] When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their veracity.iii The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.
[8] Overall, I find the Claimant to have been a credible witness. While there were some internal inconsistences and inconsistences between the documents and the Claimant’ s testimony, discussed below, which I find are sufficient to rebut the presumption of truthfulness, I find that in considering his testimony overall in addition with the documentary evidence before me, the Claimant’s credibility as regards his sexual orientation has been made out on a balance of probabilities. The Claimant’s testimony was generally consistent with his narrative and with the documentary evidence on country conditions in Turkey. He testified generally about his experiences in Turkey, the ways in which he would try to keep his sexual orientation hidden from others and his family, provided the names of some his LGBTQ-identified friends in Turkey and, importantly, testified in detail about his previous partners. On balance, I find in this case that the level of detail the Claimant was able to provide about his previous partners was substantial and it significantly assisted in establishing his credibility as relates to his own sexual orientation.
[9] The Claimant also provided some documentary evidence to support his claim, found at Exhibits 6 through 8, including letters of support from previous partners and LGBTQ-identified friends in Turkey. These letters are accompanied by identity documents for the writers.iv There were some concerns about some of the ID documents provided for these individualsv. These concerns were put to the Claimant at the hearing. I find ultimately however that these concerns are not sufficient on their own, without more, to call into question the reliability or genuine nature of the letters and I assign them full weight.
[10] There was a significant concern arising from a discrepancy between the Claimant’s forms, narrative, and testimony regarding when he moved from Bursa to Afyon. Specifically, the Claimant’ s visa application to Canada and his Schedule A form suggest he did not move to Afyon until XXXX 2019.vi This discrepancy is significant as the Claimant alleges to have met his partner, XXXX, in Afyon in mid-September 2018 and that XXXX returned to Istanbul in XXXX 2019, while the Claimant remained in Afyon.vii The letter of support from XXXX also indicates that they couple met in the fall of 2018 and corroborates that XXXX moved to Istanbul in XXXX 2019.viii
[11] When this discrepancy was put to him, the Claimant appeared confused. The Claimant’s Counsel revisited the issue in his questions, at which point the Claimant accepted that he must have relocated to Afyon by XXXX 2018. He testified that the company he worked for was physically located in Bursa, but given his line of work, he did not need to go into the office and could work remotely. He testified that when he first started working for the company, he initially travelled to Bursa approximately four days a week. The commute time would be just over 3 hours each way, but he needed the job. He started working remotely approximately a month after working there. He accepted the proposition that the dates listed in the “address history” of his Schedule A form was likely a mistake and that the reason Bursa was listed under the “personal history” section of that form was because his company was physically located there.
[12] The Claimant’s testimony has not addressed my concerns. I find the Claimant’s testimony that his forms indicate he was in Bursa until 2019 because this is where is company was physically located is not borne out by evidence before me. Specifically, I find it concerning that all the Claimant’s forms requesting a history of where he was located, including those completed before the Claimant came to Canada, would provide the same timeline. I find this suggests that this was not simply a mistake. Further, the “personal history” section of his Schedule A form also indicates that he was in Bursa, unemployed, prior to starting his job in 2018, and after ending his employment in XXXX 2019. It would not make sense for the Claimant to indicate he was in Bursa prior and subsequent to being employed by this company if the only reason he wrote Bursa in the “personal history” section of the forms was because the company was located there. I find the balance of the evidence before me establishes that it is more likely than not that the Claimant did not move to Afyon with his family in XXXX 2018 as alleged in his narrative. This discrepancy results in a negative inference regarding the Claimant’s overall credibility.
[13] I note, however, that the Claimant was able to provide detailed testimony about XXXX. and their time together, as well as his other same-sex partners in Turkey. As noted above, letters of support have been provided by several of these individuals. Given this, I am prepared to give the Claimant the benefit of the doubt despite my lingering concerns arising form the discrepancy detailed above. I therefore find the Claimant has established, on a balance of probabilities, it is more likely than not that he was in a romantic relationship with XXXX while in Turkey. I also find that, when weighed as a whole, there is sufficient credible evidence before me to establish, on a balance of probabilities, that the Claimant has also been involved in other same-sex relationships in Turkey. This, along with his testimony regarding his own personal experiences, is sufficient to establish, on a balance of probabilities, his sexual orientation.
[14] I find that, having established his sexual orientation, the Claimant has also established his subjective fear on a balance of probabilities.
Objective Basis
[15] I find that this claim is objectively well-founded, as illustrated in the country conditions documents provided by the Claimantix and the information contained in the National Documentation Package (“NDP”) for Turkey.x
[16] The US Department of State’s 2019 Country Report for Turkey includes violence against lesbian, gay, bisexual, transgender and intersex (LGBTQI+) persons on its list of significant human rights issues for the country.xi Although same-sex sexual activity is legally permitted in Turkey, LGBTQI+ people continue to experience widespread discrimination, intimidation, police harassment, and violent crimes, including murder. Harassment and abuse against the LGBTQI+ community are reportedly common, with an increase in homophobic and transphobic assaults during the state of emergency.xii These assaults have continued despite the end of the state of emergency.xiii LGBTQI+ persons are still victims of honor killings by family members and there remains considerable social pressure for lesbian and gay individuals to enter heterosexual marriages and produce children.xiv
[17] The government at both at local and state-wide levels continue to espouse and support anti LGBTQI+ sentiment with its actions and statements. Pro-government media and high-level officials, including the president, have been noted to frequently make derogatory comments and statements about homosexuality. Recently, during the COVID-19 pandemic, the head of the Religious Affairs Directorate said in a Ramadan sermon that Islam condemned homosexuality because it brought disease and blamed it for the spread of HIV. These statements were subsequently supported publicly by the President and other cabinet ministers.xv LGBTQI+ organizations have reported a sharp increase in campaigns of intimidation and harassment targeting individuals or planned events. Bans on LGBTQI+ events in recent years have continued, with attendees forcefully and violently dispersed by the police through the use of batons, tear gas, water cannons, and rubber bullets and detained by police for several hours. Police harassment of LGBTI+ persons remain common, and LGBTQI+ individuals have been taken into custody in Turkey due to social media posts and comments on social media sites such as Facebook.xvi
[18] Hate speech against LGBTQI+ persons is not effectively persecuted and is often found to fall within the boundaries of freedom of speech. Sexual orientation and gender identity are still not protected grounds in hate crime law. The lack of explicit legal protection for LGBTQI+ individuals has amounted to a tacit legal endorsement of acts of violence and discrimination. There is widespread discrimination against LGBTQI+ people in education, employment, health, housing, and access to services. References in the law relating to “offenses against public morality,” “protection of the family,” and “unnatural sexual behavior,” have been used as a basis for abuse by police and for discrimination by employers. LGBTQI+ people continue to be treated negatively in the workplace on a regular basis and often have to conceal their sexual and gender identity at work or risk facing repercussions.xvii
[19] This objective country condition evidence is consistent with and supports the Claimant’s allegations of persecution and harm were he to live openly as a gay man. I find that, when considered as a whole, the documentary evidence establishes that it is more likely than not that LGBTQ+ persons are persecuted and unable to live openly without fear of being harmed in Turkey and that the level of discrimination in Turkey amounts to persecution given its pervasive and widespread nature, including the inability of LGBTQI+ individuals to live openly in Turkey while simultaneously accessing services that are essential for their livelihood, such as work, housing, or health services.
[20] I therefore find the Claimant has established a well-founded fear of persecution on the basis of his sexual orientation.
[21] The Claimant has also raised allegations of harm based on his political opinion due to his perceived membership with the Hizmet movement, as well as on the basis of his conscientious objection to military service and agnosticism. However, given I have found the Claimant has established his claim on the basis of his sexual orientation, I will not engage in an assessment of the other alleged grounds put forward.
State protection would not be available
[22] Given the foregoing, I find there is sufficiently clear and convincing evidence to find the presumption of state protection to be rebutted. In practice, law enforcement officials and the judiciary take a lenient attitude towards crimes committed against LGBTQI+ individuals. A May 2020 Kaos GL report indicates that there was an “increase” in rights violations against LGBTI+ individuals “that originated directly from authorities and law enforcement” in 2019. Judges have routinely applied the defense of “unjustifiable provocation” under the penal code to reduce sentences of those who have killed LGBTQI+ persons, and courts of appeal have upheld the verdicts based, in part, on the “‘immoral nature’ of the victim.” Numerous cases of crimes against people of a different sexual orientation or gender identity remain unpunished. The ECRI Report on Turkey indicates that the police tend to trivialise hate crime targeted at LGBTQI+ persons and are reluctant to open investigations into such cases. Very few LGBTQI+ victims report hate crimes to the authorities, and many have suffered violence and sexual abuse from the police.xviii I therefore find that state protection would not be reasonably available to the Claimant in Turkey.
There is no viable internal flight alternative (“IFA”)
[23] For the same reasons, considering the objective evidence and that the agent of persecution is the state, I find the Claimant would face a serious possibility of persecution throughout the country. The objective evidence indicates that the level of persecution, lack of state protection and inability to live life openly as a gay man would remain the same across the country. I find the Claimant would face a serious possibility of persecution across the country and that there is therefore no viable internal flight alternative available him in Turkey.
DECISION
[24] Given the above, I find that the Claimant has established, on a balance of probabilities, that he would face a serious possibility of persecution on the basis of his sexual orientation if he were to return to Turkey.
[25] I therefore find the Claimant is a Convention refugee pursuant to s. 96 of the IRPA and accept his claim.
(signed) Tamara L. Thomas
12 April 2021
i Chairperson‘s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
ii Exhibit 1.
iii Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
iv Exhibit 6, p. 45-67.
v Exhibit 6, p. 57, 63.
vi See Exhibits 1 and 4.
vii See Basis of Claim narrative, at pars. 17-18.
viii Exhibit 6, p. 53.
ix Exhibit 8.
x Exhibit 3, National Documentation Package for Turkey (“Turkey NDP”), 18 December 2020.
xi Exhibit 3, Turkey NDP, Item 2.1: Turkey. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020.
xii Exhibit 3, Turkey NDP, Item 1.14: Country Policy and Information Note. Turkey: Sexual orientation and gender identity. Version 2.0. United Kingdom. Home Office. June 2017; See also, Item 1 .4: Turkey: Country Report –Version 3. Asylum Research Centre. 21 November 2017.
xiii Exhibit 3, Turkey NDP, Item 6.5: Treatment of persons with diverse sexual orientation and gender identity and expression (SOGIE) by society and state authorities, including state protection and support services (2018—November 2020). Immigration and Refugee Board of Canada. 26 November 2020. TUR200360.E.
xiv Exhibit 3, Turkey NDP, Item 1.17.
xv Exhibit 3, Turkey NDP, Item 1.17.
xvi Exhibit 3, Turkey NDP, Item 2.7: Weathering the Storm: Defending Human Rights in Turkey’s Climate of Fear. Amnesty International. 26 April 2018. See also, Item 1. I 4; See also, Item 1.4.
xvii Exhibit 3, Turkey NDP, Item 1.17; See also, Item 1.14; See also, Item 2.16: Turkey. Country report: Nondiscrimination. European Commission. Directorate-General for Justice and Consumers. 20 1 9.
xviii Exhibit 3, Turkey NDP, Items 6.5, 1.14, and 1.4.