2023 RLLR 159
Citation: 2023 RLLR 159
Tribunal: Refugee Protection Division
Date of Decision: December 1, 2023
Panel: Ha Lu
Counsel for the Claimant(s): Adam Wawrzkiewicz
Country: Kenya
RPD Number: TC3-06638
Associated RPD Number(s): N/A
ATIP Number: A-2024-00894
ATIP Pages: N/A
DECISION
[1] MEMBER: I have considered your testimony and the other evidence in the case before me, and I am now ready to render my decision orally.
[2] The claimant, XXXX XXXX XXXX, alleges that she is a citizen of Kenya and seeks protection in Canada as a Convention refugee under section 96, and as a person in need of protection under subsection 97(1) of the Immigration and Refugee Protection Act.
[3] I have considered Guideline 9: Proceedings Before the Immigration and Refugee Board Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, referred hereafter as the SOGIESC Guideline, and have applied them within this decision.
[4] The names of all third parties have been reduced to their initials for privacy and safety reasons.
DETERMINATION
[5] I find that you are a Convention refugee, as you have established a serious possibility of persecution, based on membership in a particular social group, lesbians.
ALLEGATIONS
[6] The allegations for your claim are outlined in the narrative to your Basis of Claim form at Exhibit 2.
[7] In summary, as a lesbian, you allege being subject to legal sanctions and implications, as well as harm from people in your state, such as the police and your community, should you return to Kenya.
[8] You further allege that cultural hatred of homosexual activities and the legislation, which punishes individuals engaged therein, is a factor everywhere in Kenya. In other words, you allege that neither state protection, nor an internal flight alternative is available to you in Kenya.
ANALYSIS
[9] Possible exclusion, under Article 1E of the Convention.
[10] You testified that you lived and worked in the United Arab Emirates from XXXX 2010 until XXXX 2020. This raises a potential exclusion issue, as you may have access to permanent resident status in the United Arab Emirates.
[11] The Minister was notified about a possible 1E exclusion but decided not to intervene. As exclusion is a determinative issue, I considered whether you would be excluded by Article 1E of the Convention, due to the 10-year residency period.
[12] Based on your testimony and documents submitted, that your temporary worker status was dependent on your employment, and that the longest you had ever stayed in the United Arab Emirates was roughly
two (2) years, I find that at the time of the hearing, you did not have status substantially similar to that of nationals of the United Arab Emirates.
[13] I further find that you never had permanent resident status and lost it, or had access to that such status and failed to acquire it.
[14] As you do not have status elsewhere, I determine that you are not excluded by Article 1E.
Identity
[15] You have established, on a balance of probabilities, your personal and national identity by a copy of your valid Kenyan passport, filed in Exhibit 1.1.
Nexus
[16] Your allegations establish a nexus to the Convention ground of particular social group, specifically, lesbians.
[17] I have, therefore, analyzed the claim pursuant to section 96 of the Immigration and Refugee Protection Act.
[18] As lesbian is the term you testified that you identify yourself, this decision will also refer to lesbian throughout, in accordance with section 2.7 of the SOGIESC Guideline, that individuals should be allowed to self-identify, and their self-identification respected during proceedings.
Credibility
[19] Sworn testimony is presumed to be credible, unless there is a valid reason to doubt it.
[20] I am cognizant of the difficulties faced by individuals in establishing their claims, including differing levels of education, testifying with an interpreter, cultural factors, and the milieu of the hearing room.
[21] Overall, I have found you to be a credible witness.
[22] You completed XXXX XXXX in Kenya.
[23] In light of your overall profile and your ability to communicate effectively, I reasonably expected you to speak with insight and detail about aspects of your life related to your sexual orientation. As a result, I inquired about how your understanding of your sexual orientation evolved, how that awareness has impacted you, and how your sexual orientation led you to seeking safety in Canada.
[24] You alleged that you were raised as a Christian and discovered your sexuality when you attended high school. You provided credible testimony about your first serious same-sex relationship with a woman named K. P.; how you met her, how your relationship began and ended, qualities you liked about her, memorable moments that you shared, as well as other details about K. P.’s life and family.
[25] You testified about your current girlfriend, J. K. L. You testified of not displaying your affections in public, for fear of discovery.
[26] You testified in a forthright and spontaneous manner, and your testimony was internally consistent, often providing additional information without prompting, and at the same time, without embellishing your account. There were no major inconsistencies or omissions, with respect to these relationships.
[27] You testified that once you came to Canada in XXXX 2022, you spent more time exploring your sexuality, and living more freely and publicly with your sexual orientation. You spoke about how for the first time in your life, you did not have fear, and that you felt free to walk with your same-sex partner in public, and that you plan to marry J. K. L. in Canada.
[28] I find that your testimony credibly establishes, on a balance of probabilities, your profile as a lesbian. Specifically, how you expressed your sexual identity openly in Canada, which contrasts the way you had to conceal your sexual identity and same-sex relationships in Kenya and the United Arab Emirates.
[29] I find that you — to be a credible witness, and therefore, believe what you have alleged in support of your claim.
[30] In addition to your oral testimony about your relationships and issues faced in Kenya, you provided numerous personal supporting documents. You provided a Statement of Advocacy from XXXX XXXX; a support letter from XXXX XXXX; a support letter from the XXXX XXXX XXXX XXXX XXXX, or XXXX; and many photographs of you with you with your same-sex partners, and of yourself at various community events in Toronto, all found in Exhibits 7.1 and 7.2.
[31] I find that your registration and participation in 2SLGBTQI+ programs and events in Toronto are not probative of your sexual orientation as a lesbian.
[32] XXXX XXXX, XXXX XXXX, and XXXX rely on participants’ self-identification, and therefore, cannot independently verify anyone’s sexual orientation. Furthermore, these organizations are not in the habit of questioning a person’s sexual orientation before providing them with services or allowing them to volunteer with them.
[33] Your association with these organizations is of only incidental value in establishing your sexuality. Anyone can join these organizations and claim to have a particular sexual orientation. These memberships have low evidentiary value, regarding your allegations that you are a lesbian.
[34] In addition, pursuant to section 7.2.4 of the SOGIESC Guideline, there is no expectation for a claimant to establish their SOGIESC using explicit photographs, or other visual material. Also, non-explicit photographs of an individual woman with other people do not prove that the individual is a person with diverse SOGIE. Your presence at social events in Toronto does not establish your sexual orientation, as these events are open to anyone.
[35] I decline to assign any weight to the photographs, as they carry no probative value, and find that they do not establish your allegations.
[36] You also provided support letters from your father, sister, and friends, J. J., R. N. M., and S. K., who all live in Kenya, and from your current partner, J. K. L., who arrived in Canada.
[37] You also provided educational, professional, and vocational documents, and a XXXX XXXX report.
[38] I find that the letters from your family and friends are relevant, because they corroborate the evidence that took place in Kenya, and your sexual orientation. And as such, I assign them moderate weight in establishing your allegations.
[39] However, the educational, professional, and vocational documents are irrelevant in establishing your sexual orientation and allegations of harm in Kenya, and accordingly, I place no evidentiary weight on these documents.
[40] Based mostly on your credible oral testimony, I am satisfied that you have established your sexual orientation as a lesbian, on a balance of probabilities.
Well-Founded Fear of Persecution
[41] You testified in detail about self-identification and exploration in Kenya, with respect to sexual identity as a lesbian, which to you, means being attracted to only women, and having no feelings for men.
[42] You testified about how the community does not accept sexual minorities, rejects, discriminates, and their family disowns them. You describe how your father was heartbroken to discover that you are lesbian, and one personal encounter where you were caught by J. K. L.’s sister, while you were in bed with J. K. L. You lived far away in Nyeri, spelled N-Y-E-R-I, until you were able to leave Kenya.
[43] You also testified about how you told us, your sister and a girl from school about your attraction to girls, and how they immediately rejected you and gave you warnings never to express these feelings. These incidents amplified your fear of aggression and hostile behaviour towards you, as a lesbian, and prompted you to leave Kenya.
[44] Additionally, you submitted a report from a registered social worker and XXXX, filed in
Exhibit 7.1., that supports your allegations of physical, emotional, and XXXX XXXX.
[45] I accept the XXXX’s diagnoses of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and it is fully within the author’s area of expertise.
[46] However, the majority of the report repeats your allegations, strays into opinion evidence, and crosses the line into open advocacy. The author of the report did not witness any of the events, and merely reiterates what you have told them.
[47] Therefore, I do not give any weight to these aspects of the report.
[48] In assessing your overall credibility, I find that your testimony was consistent with someone whose sexual orientation did not conform to societal norms and expectations.
[49] I find that your description of your own strategies for mitigating risk to life and safety, as well as your ability to testify, was sincere and reflected an authentic and lived experience.
[50] You answered my questions about your understanding of life as a lesbian, and you were compelling in the way you spoke about your fear of harm, if you were to return to your country.
[51] Based on these findings and the credibility of your allegations, I also find you have established your subjective fear of persecution in Kenya, due to your sexual orientation.
[52] I further find, on a balance of probabilities, that you have an objective basis for your fear of returning to Kenya, because of the documented country conditions.
[53] The National Documentation Package, or NDP, for Kenya, which is found at Exhibit 3, has several sources that indicate persecution based on sexual orientation, most notably, in Items 2.1 and from Items 6.1 to 6.16.
[54] Same-sex sexual activity is criminalized under the Kenyan Penal Code, which sets out a sentence of up to 14 years imprisonment for “carnal knowledge against the order of nature.” This criminalization of same-sex sexual activity was upheld by the High Court of Kenya in a 2019 decision.
[55] While there are some indications that attitudes towards SOGIESC individuals in Kenya are improving, stigma against sexual minorities remains deeply entrenched. The stigma is reinforced by those who hold the highest levels of political office in Kenya, including Former President Kenyatta, who stated in a 2018 interview that, “Kenya does not consider gay rights relevant as it goes against the cultural beliefs of Kenyans.”
[56] Sources also note that violence and discrimination against SOGIESC individuals in Kenya is widespread, and includes risks such as murder, mob violence, verbal assault, rape, blackmail, extortion, arbitrary arrest, physical violence, ridicule, constant harassment, stigma, and exclusion by family and society, expulsion from workplace or learning institutions, denial of work, denial of housing, and poor access to health care.
[57] Moreover, people who do not conform to society’s expectations about gender and sexuality, particularly sexual minorities, are immediately in danger. Sexual minorities are not only marginalized but often face violence and discrimination when they are open about their sexual orientation and gender identity, and when they are perceived to be anything other than heterosexual and/or cisgender. This can come from an individual’s family, community, or even state officials.
[58] Sources indicate that to maintain their safety, SOGIESC individuals often need to hide their sexual orientation or gender identity.
[59] To summarize, the NDP for Kenya makes multiple references to the maltreatment of both men and women who identify as SOGIESC or choose to have same-sex relationships, and this maltreatment amounts to persecution.
[60] I am satisfied that there is ample evidence of an objective basis for your subjective fear in this case.
[61] I find that you have demonstrated, on a balance of probabilities, that you will face a serious possibility of persecution in Kenya, if returned there, based on your sexual orientation as a lesbian.
[62] I therefore find that you have a subjective fear of persecution in Kenya, that is objectively well-founded.
State Protection
[63] In assessing state protection, there is a presumption that the State can protect its citizens, except in situations where the State is in complete breakdown.
[64] As noted in section 8.6.4 of the SOGIESC Guideline, the existence of laws criminalizing non-conforming sexual orientations, sexual behaviours, gender identities or expressions, or sex characteristics, and the enforcement of these laws by the State, may be evidence that state protection is inadequate.
[65] As same-sex sexual activity is criminalized in Kenya, and since homophobic violence continues with impunity, I find that there is clear and convincing evidence that state protection in Kenya would not be forthcoming to you as a lesbian, should you try to seek it upon return to that country.
[66] I find that you have rebutted the presumption of state protection, and that adequate state protection would not be available to you in Kenya.
Internal Flight Alternative, or IFA
[67] I have also considered whether there’s (ph) a viable IFA.
[68] As noted in section 8.7.1 of the SOGIESC Guideline, it is well established in law that an IFA is not viable if a SOGIESC individual must conceal their SOGIESC to live in that location.
[69] Given the State’s capacity, the criminalization of same-sex conduct, and homophobic attitudes that exist country-wide, as outlined in the objective evidence cited earlier, I find that there is no safe place for you to live openly as a lesbian in Kenya, and nowhere in Kenya where you would not face a serious possibility of persecution, based on your membership in this particular social group.
[70] Therefore, I find that there is no viable IFA available to you anywhere in that country.
CONCLUSION
[71] In conclusion, on the totality of the evidence, I find that you have a serious possibility of persecution in Kenya, on the grounds of membership of a particular social group of lesbians.
[72] I find you to be a Convention refugee, and I accept your claim.
——— REASONS CONCLUDED ———