2024 RLLR 100

Citation: 2024 RLLR 100
Tribunal: Refugee Protection Division
Date of Decision: August 8, 2024
Panel: Ha Lu
Counsel for the Claimant(s): Ariel M. Hollander
Country: Kenya
RPD Number: TC3-22119
Associated RPD Number(s): N/A
ATIP Number: A-2025-00611
ATIP Pages: N/A

REASONS FOR DECISION

[1] 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 (IRPA).

[2] The panel applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC guideline).

ALLEGATIONS

[3] The claimant alleges being subject to legal implications and sanctions as a bisexual woman, as well as harm from people in her state, such as the police and her community, should she return to Kenya.

DETERMINATION

[4] The panel finds that the claimant is a Convention refugee as she would face a serious possibility of persecution in Kenya based on sexual orientation as a bisexual woman.

ANALYSIS

Identity

[5] On a balance of probabilities, the panel finds that the claimant has established her personal identity as a national of Kenya by a copy of her valid Kenyan passport.[1]

[6] As “bisexual” is the term the claimant testified that she identifies with, this decision will also refer to “bisexual” 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.

Convention Refugee: Section 96 Analysis

[7] To satisfy the definition of a “Convention refugee” found in section 96 of the IRPA, a claimant must establish that they face a serious possibility of persecution on account of their race, religion, nationality, membership in a particular social group or political opinion in their country of nationality.

[8] The panel finds that what the claimant fears constitutes persecution, and that the persecution is linked to the Convention ground of membership in a particular social group, bisexual women. As such, the panel will assess the claim pursuant to section 96 of the IRPA.

Credibility

[9] A claimant benefits from the presumption that sworn evidence is presumed to be true unless there is a valid reason to doubt its truthfulness.[2] In analyzing the claimant’s testimony, the panel considered cultural, psychological or other barriers that may explain the way in which testimony is presented, as referenced in section 6.2 of the SOGIESC guideline. The panel also considered the possibility that the stigma associated with people with various SOGIESC or the treatment of people in Kenya may cause some reluctance or difficulty to speak on the subject, as noted in section 3.3 of the SOGIESC guideline and reported in the National Documentation Package (NDP) for Kenya.[3],[4]

[10] The panel’s assessment of the present claim is also guided by the Federal Court which emphasizes that the inherently private nature of claims based on sexual orientation presents evidentiary challenges for the applicant and decision makers; therefore, such claims should be handled with caution, care and sensitivity.[5]

Claimant’s Burden to Establish Her Allegations

[11] The claimant is 50 years old, completed a XXXX XXXX in XXXX and XXXX from XXXX XXXX in Nairobi in 1997 and has worked in a XXXX for 10 years before changing her career to XXXX; she obtained a XXXX XXXX from XXXX XXXX XXXX and worked as a XXXX at XXXX XXXX in XXXX for five years.[6] She testified that since XXXX 2023, she has been working at XXXX XXXX.

[12] During the hearing, the claimant demonstrated that she understood the panel’s questions and asked for clarification when she did not understand what was being asked of her. She was often repetitive and vague in her responses, which needed numerous follow-up questions from the panel, but she answered all questions put to her. The panel does not find the claimant to be an unsophisticated or naïve individual, as she is educated and has worked in Kenya and Canada. The panel reasonably expected the claimant to speak with insight and detail about aspects of her life related to her sexual orientation. As a result, the panel enquired extensively about how her understanding of her sexual identity evolved, how that awareness has impacted her, and how her sexual identity led her to seek safety in Canada.

Oral Testimony about Sexual Orientation

[13] The panel accepts that individuals may be reluctant, uncomfortable or hesitant to provide details regarding their relationship with other individuals who have a diverse sexual orientation, having considered the nature of the allegations and the SOGIESC guideline. The panel further accepts that individuals with diverse sexual orientation may face challenges in establishing their diverse sexual orientation. In some situations, these individuals may have experienced trauma or lived in a repressive society. The determination of a claim must be made having assessed all the evidence, including the claimant’s oral testimony, written statements and documentary evidence.

[14] The panel took into consideration the SOGIESC guideline and the sensitive nature of the claimant’s allegations by focussing questions on the awareness and understanding of the claimant’s sexual orientation differences in Kenya and on those relationships that she found to be the most meaningful. The panel asked open-ended questions to allow the claimant—and followed up when necessary—to elicit more information and gather information to render a decision. These questions were not aimed at love, sexuality or intimate preferences, nor were they aimed at the trauma or hardship experienced.

[15] There is a certain minimum of reasonable testimony that is expected when asked questions about memorable experiences or special occasions, having considered the depth and nature of the relationship, the claimant’s personal experience and the SOGIESC guideline. At the hearing, the claimant testified in a forthright manner. For example, the claimant described her first girlfriend, XXXX, who she met in XXXX XXXX, as the kind of relationship where they loved each other as two girls and were happy about it. The panel finds this response overly vague and expected a more fulsome description. The claimant went on to state that she and XXXX used to meet in the labs where they would have private conversations and share intimate moments. The claimant long-admired XXXX but it took a while before she could express her feelings. When their relationship became more intimate, they would spend time at XXXX house because it was a quieter place, for XXXX had only one sibling and the claimant had two brothers and four sisters. Their relationship ended when XXXX parents moved to another state.

[16] Under pressure to settle down, the claimant’s parents arranged for her to marry a man who was seven years older than she was. They married in XXXX 1996 and later had four children. The claimant admitted that there were difficulties in the marriage since the beginning, though her husband treated her well and paid for her XXXX tuition. When she changed her career to become a XXXX and got a job in XXXX in 2011, she decided to move out and took the children with her. On occasion, her husband would visit the children; in 2015, she officially separated from her husband. At her new job at XXXX XXXX, she met a woman named XXXX who was three years older and also XXXX there. They became close friends and then lovers. Their relationship abruptly ended when they were caught by the claimant’s brother-in-law, XXXX. The claimant stayed with her sister, XXXX, who persuaded the claimant to tell her estranged husband the truth about her sexual orientation. XXXX exposed the claimant’s sexual orientation to the rest of the family and the community at large.

[17] The claimant’s testimony with regard to her relationships with XXXX, XXXX and her husband was personalized, internally consistent and sufficiently detailed. She provided specific details about what she liked about XXXX and XXXX, how she met them, what she found attractive about them, their family, their favourite activities they did together and how the relationships ended. There were no material inconsistencies in her oral testimony or contradictions between her testimony and the other evidence before the panel. Overall, the panel finds the claimant a credible witness and that she has established her sexual relationships on a balance of probabilities.

Supporting Personal Documentation related to Sexual Orientation

[18] The claimant tendered the following personal documentary evidence to support her claim that she is a bisexual woman and faces persecution in Kenya based on her sexual orientation:

[19] Marriage certificate.[7] The marriage certificate is typed, lists the claimant’s husband as “XXXX” and contains spelling mistakes: two different misspellings of her name (“XXXX” and “XXXX”) and the husband’s father’s occupation (“DEASEACHED” instead of “deceased”). The claimant had testified that her husband was not a XXXX in Kenya. When the panel confronted her with these irregularities on her marriage certificate, she replied that she only became aware of these errors now. She signed the document at the time without checking the personal information and added that mistakes on official documents are “something in my country” that happen “all the time.”

[20] While the panel is mindful that documents from other countries in different stages of development should not be held to Canadian standards, the panel cannot accept that this document would contain these kinds of errors if they were legitimately issued by a civil registry office. English is an official language of Kenya[8] and there nothing in the objective evidence to support the claimant’s assertion that mistakes on official documents are common. The panel rejects the claimant’s explanation that she was not aware of the errors on her marriage certificate until the panel mentioned it to her during the hearing. The claimant was represented by counsel, had ample time prior to the hearing to review her personal documents before submitting them to the Refugee Protection Division and notify her counsel of any irregularities. As a result, the panel determines that the marriage certificate is fraudulent on a balance of probabilities. By submitting a fraudulent document in support of her claim, the panel finds that this strongly undermines her overall credibility.

[21] Support letters from the claimant’s sister, XXXX;[9] husband;[10] friends from Kenya, XXXX,[11] XXXX[12] and XXXX;[13] and, friend from Canada, XXXX.[14] The letters are signed and accompanied with government-issued picture identification. Except for XXXX letter, each letter mentions the claimant’s bisexuality and attests to their personal knowledge of the claimant and the events that led to her to flee Kenya. XXXX brief letter only attests to harbouring the claimant in early 2019 and receiving a phone call from the claimant’s brother-in-law, XXXX, that he would send the Mungiki gang to kill the claimant. Aside from typos in some of the letters, the substance of these letters is relevant and probative to corroborate the claimant’s allegations that XXXX is actively pursuing the claimant. The panel therefore assigns full weight to these support letters in establishing the claimant’s allegations that she is a bisexual woman and faces harm in Kenya because of her sexual orientation.

[22] Membership letter from the XXXX XXXX XXXX (XXXX) XXXX XXXX[15] and Statement of Advocacy from XXXX XXXX.[16] The statement of advocacy from XXXX XXXX is dated XXXX XXXX, 2023, and indicates that the claimant completed their settlement needs intake on XXXX XXXX, 2023, and the newcomer’s orientation on XXXX XXXX, 2023. The membership letter from the XXXX is dated XXXX XXXX, 2024, and confirms she registered with their LGBTQ+ Refugee Programs on XXXX XXXX, 2023. The panel finds that the claimant’s registration and participation in 2SLGBTQI+ programs in Toronto are not probative of her sexual orientation as a bisexual woman. These organizations rely on participants’ self-identification and therefore cannot independently verify her sexual orientation. Furthermore, such organizations are not in the habit of questioning a person’s sexual orientation before providing them with services or permitting them to volunteer within their organization. The claimant’s association with the XXXX and XXXX XXXX is of only incidental value in establishing her sexuality. Anyone can join these organizations and claim to have a particular sexual orientation. The documents have low evidentiary value regarding the claimant’s allegation she is bisexual.

[23] Photographs of the claimant at 2SLGBTQI+ events and with ex-partners.[17] The claimant submitted 37 photographs showing her at Pride events in Toronto, seven photographs with her husband on their wedding day and 18 photographs with her ex-girlfriend, XXXX, in a variety of indoor and outdoor settings. 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. In addition, non-explicit photographs of an individual woman with other people do not prove that the individual is a person with diverse SOGIE. 2SLGBTQI+ events are open to and attended by the public. Photographs do not prove any particular relationship between the persons pictured, and cannot prove the claimant’s sexual orientation. The panel declines to assign any weight to the photographs as they carry no probative value and finds that they do not establish the claimant’s allegations.

[24] XXXX Assessment Report.[18] The claimant tendered a XXXX assessment report from a registered social worker and XXXX that was based on a one clinical assessment and two XXXX tests. The author has known the claimant for 10 months and has provided XXXX for her symptoms of XXXX and XXXX. Though not specific in the XXXX assessment tools used, the author reports major mental health concerns. The panel accepts the author’s diagnosis that the claimant suffers from XXXX and XXXX as it is fully within the author’s area of expertise.

[25] However, parts of the report repeats the claimant’s allegations, strays into opinion evidence and crosses the line into the realm of credibility assessment. The author was not a witness to these events and merely reports what the claimant told them. The assessment report also mentions the author’s opinion that the claimant’s return to Kenya may worsen her condition. While the panel accepts the registered XXXX clinical observations, the panel finds that their assessment crosses the line from expressing an expert opinion on the claimant’s mental state to advocacy[19] when it opined that the claimant’s condition will deteriorate with exposure to further threats of harm. Such a recommendation to have the claimant remain in Canada has no probative value in the examination of the credibility of the claim. As such, the panel assigns no weight to the portions of the XXXX assessment that advocate for the claimant to remain in Canada.

[26] Educational documents. The claimant also tendered a certificate of completion from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX,”[20] XXXX XXXX from the XXXX XXXX XXXX XXXX XXXX,[21] certificate in XXXX and XXXX XXXX[22] and examination entry results from the XXXX XXXX XXXX XXXX.[23] These documents are irrelevant in establishing the claimant’s sexual orientation and allegations of harm in Kenya. As such, the panel places no evidentiary weight on them.

Conclusion on the Claimant’s Credibility

[27] In assessing the claimant’s overall credibility, despite the submission of the fraudulent marriage certificate, the panel finds that claimant’s testimony was consistent with someone whose sexual orientation did not conform to societal and religious norms and expectations and Kenya’s laws. When the panel considers the claimant’s oral testimony and the support letters, the panel finds that she has credibly established her profile as a bisexual woman on a balance of probabilities.

Well-Founded Fear of Persecution

Claimant Has Established Her Subjective Fear of Persecution

[28] The claimant testified that same-sex activity is illegal in Kenya and bisexual people can be killed if caught in the act. Those who express same-sex affections are isolated and rejected. She recalled seminars at school that reminded students same-sex attraction was prohibited and would lead to expulsion. Her brother-in-law, XXXX, chastised her for bringing shame to the family and threatened to call his Mungiki friends to teach her a lesson. All these incidents amplified her fear of aggression and hostile behaviour towards her as a bisexual woman.

[29] Based on the evidence before the panel, the panel finds that the claimant has established, on a balance of probabilities, that she fears harassment, physical violence and death from community members and imprisonment at the hands of state authorities because she is bisexual. In other words, she has established a subjective fear of persecution based on sexual orientation.

Claim Has an Objective Basis

[30] The claimant’s fear of violence, death and imprisonment at the hands of community members and state authorities in Kenya has an objective basis. The NDP for Kenya contains several sources of persecution based on sexual orientation:

  • Consensual adult private sexual conduct between persons of the same sex is a crime in Kenya. This criminalization of same-sex activity was upheld by the High Court of Kenya in a 2019 decision.[24]
  • While there are some indications that attitudes towards sexual minorities in Kenya are improving, stigma remains deeply entrenched.[25],[26]
  • Violence and discrimination against SOGIESC individuals in Kenya is widespread and includes risks such as murder, mob violence, verbal assault, rape, blackmail, extortion, arbitrary arrests, 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.[27],[28],[29],[30]
  • 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 from state officials.[31]
  • To maintain their safety, SOGIESC individuals often need to hide their sexual orientation or gender identity.[32],[33],[34]

[31] Given the multiple references in the NDP to the maltreatment of both men and women who identify as 2SLGBTQI+ or choose to have SOGIESC relationships, and that such maltreatment amounts to persecution, the panel finds that there is ample evidence of an objective basis for her subjective fear in this case.

Conclusion on Well-Founded Fear of Persecution

[32] Based on the evidence provided in the claimant’s testimony and in the NDP, the panel finds that the claimant has demonstrated a subjective fear of persecution in Kenya that is objectively well-founded. The panel further finds that there is a serious possibility that the claimant will face persecution, including serious physical violence, by reason of her sexual orientation as a bisexual woman.

Adequate State Protection Does Not Exist for the Claimant

[33] The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to a claimant. Absent a complete breakdown of the state apparatus, the general presumption is that a state can protect its citizens. This presumption may be rebutted if there is clear and convincing evidence of the state’s inability to provide protection. A claimant must approach the state for protection if it might reasonably be forthcoming; however, they should not risk their life seeking ineffective protection of a state merely to demonstrate that ineffectiveness.[35]

[34] As noted in section 8.6 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 is evidence that state protection is inadequate. As same-sex sexual activity is criminalized in Kenya and since homophobic violence continues with impunity, the panel finds that state protection for the claimant would not be forthcoming as a bisexual woman should she try to seek it upon return to Kenya. The panel finds that there is clear and convincing evidence that the state would be unwilling or unable to provide her with adequate protection in this case. Based on the foregoing, the panel finds that the presumption of state protection in this case is rebutted, and that state protection does not exist for the claimant.

No Viable Internal Flight Alternative (IFA)

[35] To determine whether a viable IFA exists, the panel must be satisfied on a balance of probabilities that: (1) There is no serious possibility the claimant would be persecuted or subjected personally to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the proposed IFA. (2) Conditions in the proposed IFA are such that it would not be unreasonable, in all the circumstances, including those particular to the claimant for her to seek refuge there.[36]

[36] Section 8.7.1 of the SOGIESC guideline notes that 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. Given the state’s capacity, criminalization of same-sex conduct and homophobic attitudes that exist country wide, as outlined in the objective evidence cited earlier, the panel finds that there is no safe place for the claimant to live openly as a bisexual woman in Kenya on a balance of probabilities. Therefore, the panel finds that there is no viable IFA for the claimant in Kenya.

CONCLUSION

[37] Having considered all of the evidence, the panel finds that XXXX XXXX XXXX would face a serious possibility of persecution on the grounds of membership in a particular social group, bisexual women, should she return to Kenya. The panel finds her to be a Convention refugee under section 96 of the IRPA and therefore accepts her claim.

 

——— REASONS CONCLUDED ———

[1] Exhibit 1: Immigration Documents – Passport & ID Documents.

[2] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) at para. 305.

[3] Exhibit 3: National Documentation Package (NDP), Kenya, 31 August 2023, tab 6.11:​Shame is Not a Cure: So-called Conversion “Therapy” Practices in Kenya. galck+. 2022.

[4] Exhibit 3: NDP, Kenya, 31 August 2023, tab 6.16: ​“You’ll Be Chased Away”: Sources, Experiences, and Effects of Violence and Stigma among Gay and Bisexual Men in Kenya. International Journal of Environmental Research and Public Health. Katherine A. Lewis et al. 5 February 2023. [NDP, tab 6.16]

[5] Ogunrinde v. Canada (Public Safety and Emergency Preparedness), 2012 FC 760 at para. 42; and Nezhalskyi v. Canada (Citizenship and Immigration), 2015 FC 299 at para. 14.

[6] Exhibit 1: Immigration Documents – Record of Submission of Refugee Claim.

[7] Exhibit 5: Disclosure – Certificate of Marriage, p. 2.

[8] Exhibit 3: NDP, Kenya, 31 August 2023, tab 1.3: ​Kenya. The World Factbook. United States. Central Intelligence Agency. 15 August 2023.

[9] Exhibit 5: Disclosure – Support Letter and ID – XXXX, pp. 17-18.

[10] Exhibit 5: Disclosure – Support Letter and ID – [Husband], pp. 21-23.

[11] Exhibit 5: Disclosure – Support Letter and ID – XXXX, pp. 13-14.

[12] Exhibit 5: Disclosure – Support Letter and ID – XXXX, pp. 15-16.

[13] Exhibit 5: Disclosure – Support Letter and ID – XXXX, pp. 19-20.

[14] Exhibit 5: Disclosure – Support Letter and ID – XXXX, pp. 24-26.

[15] Exhibit 5: Disclosure – Membership Letter – XXXX, p. 3.

[16] Exhibit 5: Disclosure – Statement of Advocacy, pp. 11-12.

[17] Exhibit 5: Disclosure – Photos, pp. 27-78.

[18] Exhibit 5: Disclosure – XXXX Assessment Report, pp. 8-10.

[19] Egbesola v. Canada (Citizenship and Immigration), 2016 FC 204 (CanLII) at paras. 10-15.

[20] Exhibit 5: Disclosure – XXXX p. 1.

[21] Exhibit 5: Disclosure – Certificate in XXXX (XXXX), p. 4.

[22] Exhibit 5: Disclosure – Certificate in XXXX and XXXX XXXX, p. 5.

[23] Exhibit 5: Disclosure – Examination Entry Results Confirmation Notice, p. 6.

[24] Exhibit 3: NDP, Kenya, 31 August 2023, tab 1.4: ​Report to the United Nations Human Rights Committee on the implementation of the provisions of the International Covenant on Civil and Political Rights. Kenya National Commission on Human Rights. July 2020.

[25] Exhibit 3: NDP, Kenya, 31 August 2023, tab 6.4: ​Kenya: “Justice like any other person” – Hate crimes and discrimination against LGBTI refugees. National Gay & Lesbian Human Rights Commission; Amnesty International. 2023. AFR 32/6578/2023. [NDP, tab 6.4]

[26] Exhibit 3: NDP, Kenya, 31 August 2023, tab 6.6: ​Country Policy and Information Note. Kenya: Sexual orientation and gender identity and expression. Version 3.0. United Kingdom. Home Office. April 2020. [NDP, tab 6.6]

[27] NDP, tab 6.4, supra.

[28] Exhibit 3: NDP, Kenya, 31 August 2023, tab 6.7: ​Situation of persons with diverse sexual orientation and gender identity and expression (SOGIE), including their treatment by society and state authorities; state protection and support services (2019–July 2021). Immigration and Refugee Board of Canada. 13 July 2021. KEN200667.E.

[29] Exhibit 3: NDP, Kenya, 31 August 2023, tab 6.9: ​The Undefended Defender: The Situation of Human Rights Defenders Working Towards Addressing Violence Based On Sexual Orientation, Gender Identity and Expression (SOGIE) in Kenya: A Focus on Garissa, Kajiado, and Kisii counties. Kenya National Commission on Human Rights. March 2021.

[30] NDP, tab 6.16, supra.

[31] Exhibit 3: NDP, Kenya, 31 August 2023, tab 6.3: ​Kenya. Stonewall Global Workplace Briefings 2018. Stonewall. 2018.

[32] NDP, tab 6.4, supra.

[33] NDP, tab 6.6, supra.

[34] Exhibit 3: NDP, Kenya, 31 August 2023, tab 6.12: ​Kenya: The treatment of homosexual men and their relatives. Asylos. May 2023.

[35] Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689.

[36] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.); and Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589.