2024 RLLR 43

Citation: 2024 RLLR 43
Tribunal: Refugee Protection Division
Date of Decision: October 21, 2024
Panel: M. Bourassa
Counsel for the Claimant(s): Shervin Ghiami
Country: Namibia
RPD Number: TC3-11223
Associated RPD Number(s): N/A
ATIP Number: A-2025-00128
ATIP Pages: N/A

REASONS FOR DECISION

[1] The claimant, XXXX XXXX XXXX, claims to be a citizen of Namibia and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).

[2] The panel has considered disclosure[1] received post-hearing.

[3] In coming to its decision, the panel has considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.[2]

DETERMINATION

[4] Having considered the totality of the evidence, the panel finds the claimant to be a Convention refugee under s. 96 of IRPA as he has established a serious possibility of persecution throughout Namibia should he return there based on his membership in a particular social group based on his sexual orientation.

ALLEGATIONS

[5] The claimant’s allegations are set out in his Basis of Claim (BOC) form[3] and further explained in oral testimony. In short, he alleges a fear of persecution in Namibia due to his sexual orientation. He identifies as a bisexual man.

[6] If returned to Namibia, the claimant alleges a fear of persecution from his uncle, XXXX XXXX (his “uncle”), and the community at large.

[7] The claimant alleges that his life would be in danger if he returned to Namibia. He has been threatened, attacked, humiliated, harassed and called a “morphy”.

[8] He left Namibia on XXXX XXXX, 2023.

ANALYSIS

Identity

[9] The panel finds that the claimant’s personal identity and as a citizen of Namibia have been established on a balance of probabilities. This has been established through the claimant’s testimony and the supporting documents on file that include his passport, a certified true copy of which was provided to the Board by CBSA/IRCC.[4]

Nexus

[10] The panel finds that there is a link between what the claimant fears and one of the five Convention grounds, membership in a particular social group, based on his sexual orientation. Therefore, his claim has been assessed under s. 96 of IRPA.

Credibility

[11] The panel did have some concerns regarding aspects of the claimant’s testimony including vagueness. However, the panel has taken into account Section 7.6 of Guideline 9 and that cultural considerations may have impacted on the manner in which he delivered his testimony.

[12] The panel finds, on a balance of probabilities, that the claimant has established his sexual orientation and that it has been exposed, based on his overall testimony and supporting documentation.

[13] He testified that he was raised by his uncle. He entered into an arranged traditional marriage in 2011 with a distant relative that was arranged by his uncle. He described it as an on and off relationship. The relationship broke down fully after about nine years and he wanted out. They remain separated.

[14] The claimant testified that he identifies as a bisexual man. He is interested in women and men but is more attracted to men.

[15] He testified about the prevailing cultural norms and societal attitudes toward persons with different sexual orientations. They face harassment, violence, discrimination and being called names such as a “morphy”.

[16] He testified about how he first became aware of his attraction for persons of the same sex when he was about 30 years old. He described how he met K.H. in XXXX 2012 at a bar in XXXX called XXXX that they both frequented and how the relationship led him to feel what he wanted to feel. He wanted to be with K.H. He described the relationship as his “take off point” and that there was no going back for him. It was a long-term same-sex relationship. They are no longer in contact since he left Namibia. In support of his claim, he submitted some photos[5] of himself with K.H. from a get away weekend together. He also submitted a letter[6] allegedly from K.H. that confirms their relationship and the problems that they faced with the claimant’s uncle that was obtained with the assistance of his cousin who had travelled back to Namibia for a visit. The panel noted that the letter is not signed and no identity document for K.H. was provided. The claimant could not offer an explanation. The panel gives little weight to the unsigned letter.

[17] He testified that he has met a new partner, M. K., since his arrival in Canada. He described how they met at a party for the Namibian community in XXXX 2023 and that it was an instant connection. He was able to describe his partner, his background, their common interests and what they like to do together. They socialize in public as a couple, attending Namibian community social events and at a favourite restaurant. They have exchanged gifts, and he showed the panel a watch that he was wearing and that had been gifted to him by M.K. They are talking about getting a place together. His partner resides in Fort McMurray but works on rotation in British Columbia. In support of his claim, he provided a photo[7] of himself with his partner, M.K. and a letter[8] of support from M. K. who corroborates their relationship and details how they met. M. K. was unavailable to testify at the hearing in support of his claim as he was out of the province in British Columbia on a work rotation.

[18] The claimant testified about incidents where he was subjected to beatings, attacks, humiliations and being called a “morphy”, both by his uncle and by members of the community. He described a final incident that took place in Windhoek on XXXX XXXX, 2022, when he went out to buy bread and eggs and was attacked and beaten by a group of men with sticks who called him a “morphy”. He managed to escape and took steps to leave the country. He left on XXXX XXXX, 2023.

[19] The claimant testified that he joined XXXX XXXX prior to relocating to Fort McMurray. He explained his involvement and activities with XXXX XXXX in Fort McMurray. In support of his claim, he submitted a letter[9] from XXXX XXXX confirming his membership and various e-mails[10] exchanged with H.F. at XXXX XXXX relating to his involvement and activities with XXXX XXXX. He described how his involvement with XXXX XXXX has helped him to openly accept himself and not hide his sexual orientation. He is able to live his sexual orientation freely. He feels safe here in Canada.

[20] The panel finds that the claimant has established a subjective fear of returning to Namibia on account of his sexual orientation.

Objective Basis

[21] The panel finds that the claimant’s allegations are supported by the documentary evidence, namely the National Documentation Package for Namibia[11] and that the claimant would face a serious possibility of persecution should he return to Namibia based on his membership in a particular social group, based on his sexual orientation as a bisexual man.

[22] There are laws prohibiting sodomy and other unnatural sexual acts between men. According to sources, the laws are seldom enforced in respect of acts between consenting adults.[12] Male to male sexual relationships are illegal.

[23] Many citizens consider same-sex sexual activity to be taboo.[13]

[24] There have been reports of non-state actors subjecting LGBTIQ+ people to harassment and violence including verbal, physical and sexual abuse.[14] There have been some reports of harassment, violence, and ill-treatment of LGBTIQ+ people by the police, including during detention.[15]

[25] The Department of State Country Reports on Human Rights Practices for 2023[16] states that government officials confirmed reports of police responding with apathy toward LGBTQI+ victims of assault. Members of civil society reported that assaults on LGBTQI+ persons increased following the National Assembly’s passage on July 11 and 19 of two bills criminalizing same-sex marriage and excluding same-sex spouses from receiving immigration status. It goes on to state that instances of violence were underreported due to fear of harassment or discrimination.

[26] The Namibian government has refused to take steps to protect sexual minorities from discrimination. The constitution for example does not protect sexual minorities from discrimination. The Department of State Country Reports on Human Rights Practices for 2023 reports that LGBTQI+ persons encountered discrimination in education, employment, health care, and housing.[17]

[27] Sources also indicate that LGBTQI+ people faced harassment in Namibia when attempting to access public services.[18]

[28] In May 2023, the Supreme Court upheld the High Court’s judgment in Digashu v. Government of the Republic of Namibia, recognizing same-sex unions concluded abroad. However, the Supreme Court stated that homosexuality is a complex issue and same-sex marriage rights more broadly should be dealt with in Parliament, not at the Court.

[29] The upper house of Parliament then passed a bill in July 2023 prohibiting same-sex marriage, including unions concluded overseas. The bill would criminalize the solemnization, participation in, promotion, or advertisement of such a marriage by up to six years in prison and a fine. The bill was then passed in the lower house of Parliament and is currently waiting for either the signature or rejection of the President.[19]

[30] Sources indicate that political and religious representatives have made worrying statements about sexual minorities.[20] Recently, founding President Sam Nujoma condemned same-sex marriage, calling it “foreign norms and values being imposed on us”. He joined the eight traditional authorities in the north and many Namibians in condemning the same-sex marriage agenda that is being advanced in Namibia.[21]

[31] Considering the documentary evidence and that LGBTQI+ people continue to face violence, police misconduct and discrimination in many facets of their lives and are in fact facing more homophobia and discrimination than ever in response to the Digashu matter before the courts, as well as the evidence of the claimant as to his past experiences, the panel finds that the claimant could face instances of harassment or discrimination that cumulatively amount to persecution should he return to Namibia. The country conditions documentation supports the claimant’s allegations.

State Protection

[32] The panel has considered whether adequate state protection is available to the claimant in Namibia and concludes that there is not. A state is presumed capable of protecting its citizens and to rebut this presumption a claimant must establish on a balance of probabilities with clear and convincing evidence that the state’s protection is inadequate.

[33] The prevailing view amongst LGBTQI+ people within Namibia is that the police generally do not take complaints of violence against LGBTQI+ people seriously and action is not taken to investigate and prosecute abuse.[22]

[34] The objective documentary evidence refers to reported cases of violence and harassment against gay, lesbian, bisexual and transgender persons by members of the police.[23] Police officers routinely violate the human rights of LGBTQI+ people by arbitrarily arresting them or subjecting them to physical violence.

[35] The panel finds on a balance of probabilities that the state would be unwilling or unable to be provided adequate protection to the claimant if he was returned to Namibia. The presumption of state protection has been rebutted.

Internal Flight Alternative (IFA)

[36] Based on the objective documentary evidence as set out above, the panel finds that there is a serious possibility of persecution throughout Namibia for the claimant as sexual minorities are persecuted throughout Namibia by the state and by society at large as such there is no viable IFA. The panel has also taken into account Section 8.7 of Guideline 9 that provides that an IFA is not viable if a SOGIESC individual must conceal their SOGIESC in order to live in that location.

CONCLUSION

[37] Having considered the totality of the evidence, the panel finds the claimant to be a Convention refugee under s. 96 of IRPA as he has established a serious possibility of persecution throughout Namibia should he return there based on his membership in a particular social group based on his sexual orientation.

[38] The panel finds the claimant to be a Convention refugee and accepts his claim.

——— REASONS CONCLUDED ———

[1] Exhibit 6.

[2] Guidelines issued by the Chairperson pursuant to paragraph 159 (1)(h) of the Immigration and Refugee Protection Act, revised December 17, 2021.

[3] Exhibit 2.

[4] Exhibit 1.

[5] Exhibit 5, p. 6.

[6] Exhibit 5, p. 4.

[7] Exhibit 5, p. 8.

[8] Exhibit 5, p. 1.

[9] Exhibit 5, p. 2.

[10] Exhibit 6.

[11] Exhibit 3.

[12] Exhibit 3, item 6.5.

[13] Exhibit 3, item 2.1.

[14] Exhibit 3 item 6.5.

[15] Exhibit 3 item 6.5.

[16] Exhibit 3, item 2.1.

[17] Exhibit 3, item 2.1.

[18] Exhibit 3, item 2.1.

[19] Exhibit 3, item 6.1.

[20] Exhibit 3, item 6.1.

[21] Exhibit 7.

[22] Exhibit 3, item 6.5.

[23] Exhibit 3, item 6.5.