2024 RLLR 102
Citation: 2024 RLLR 102
Tribunal: Refugee Protection Division
Date of Decision: July 19, 2024
Panel: Mihaela Kerezova
Counsel for the Claimant(s): Talar Chit Jian
Country: Kenya
RPD Number: TC3-39566
Associated RPD Number(s): N/A
ATIP Number: A-2025-00611
ATIP Pages: N/A
DECISION
[1] MEMBER: Today’s date is July 19th, 2024, and these are the reasons and decisions in the claim for refugee protection made by XXXX XXXX XXXX, with file number TC3-39566. You allege to be a citizen of Kenya and you seek refugee 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.
[2] I have considered your testimony today and all the other evidence before me, and I am now ready to render my decision orally. The written decision will be coming to you shortly, and may be amended for grammar and case law citations as needed. In today’s decision, I have also considered and applied the Chairperson’s guideline 9 for proceedings before the Immigration and Refugee Board involving sexual orientation, gender identity and expression, and sex characteristics, and I have applied them within my decision.
DETERMINATION
[3] I find that you are a Convention refugee, as you have established a serious possibility of persecution based on your membership in a particular social group, the one of bisexual women.
ALLEGATIONS
[4] The allegations of your claim are outlined in your narrative in the Basis of Claim form, seen in Exhibit 2. In summary, as a bisexual woman, you allege being subjected to legal implications and sanctions as well as harm from people in your country, such as the authorities and your community, should you return to Kenya, because your sexuality was exposed.
[5] You further allege that the culture in your country towards homosexual activities and the legislation which punishes individuals engaged therein is a factor everywhere in Kenya. In other words, you allege that neither the state can protect you, nor there is an internal flight alternative available to you in your country.
ANALYSIS
Identity
[6] You have established on a balance of probabilities your personal and national identity by providing a copy of your Kenyan passport and Canadian visa therein, seen in Exhibit 1, claim referral information.
Nexus
[7] Your allegations establish a nexus to a Convention ground based on a membership in a particular social group, specifically bisexual women. I have therefore analyzed the claim pursuant to section 96 of the Immigration and Refugee Protection Act. As ‘bisexual’ is the term you testified about and how you identified yourself, this decision will also refer to you as a bisexual throughout, in accordance with section 2.7 of the SOGIESC guidelines, that individuals should be allowed to self-identify, and their self-identification should be respected during the proceedings.
Credibility
[8] Sworn testimony is presumed to be credible unless there is a valid reason to doubt it. I am cognizant of the difficulties faced by individuals in establishing their claims, including different levels of education, testifying in a virtual hearing environment, and other cultural factors. Overall, I have found you to be a very credible witness, and in light of your overall profile and your ability to communicate effectively, I have reasonably expected you to speak with insight and details about aspects of your life related to your sexual orientation.
[9] As a result, I inquired about your understanding of your sexuality, how it evolved, how the awareness has impacted you and your family members, and your same-sex relationships, and how your sexuality led you to seek safety in Canada. You allege that you were approximately still in the primary school when you first discovered your sexuality, and you testified to me that at that time you were attracted to both girls and boys, but you were afraid to open up about it right away for the fear of being judged. Your first attractions were not something you embarked upon at that age.
[10] It was not until 2015, when you were at the XXXX, when you started a relationship with FN, or XXXX (ph), who was a fellow student of yours at the XXXX. The relationship lasted until XXXX 2016, when you discovered that she is seeing someone else and that she is not forthcoming about her whereabouts, and coming late. You told me that after the relationship was over, you felt withdrawn and betrayed because she was someone you trusted, and I found your testimony on that topic to be very compelling.
[11] In 2017, you met at work with J, who is the biological father of your son, who was then born in 2018. You told me that J wanted to marry you, but you were reluctant because you felt more attracted to women. Because of your refusal to get married, J later became suspicious that you may be seeing someone else. This was in fact the case, because in early 2021, you started a relationship with V, who you first met at a women’s group at the church. You told me your relationship with her developed gradually, and it took some time until it turned into an intimate one (1).
[12] One (1) weekend during the holidays in XXXX 2022, you went to her place where you were seeing each other every weekend without knowing that J, the biological father of your son and then your boyfriend, followed you. When you got to this place, and when the two (2) of you got engaged in intimate relationship and got relaxed, J kicked the door and rushed abruptly into the room, where he caught you and V in the act. He was shocked and angry, called you offensive names, and that quickly attracted the attention of neighbours and the community.
[13] J also threatened that he would expose you to the police, which made you very concerned that not only you may get arrested, but your child may be taken away from you. You managed to escape and went into hiding for over a year, first at a friend’s place for a month, but then after you got discovered there, you moved to Nairobi to stay at a cousin’s place where you remained in hiding, keeping a low profile all the way until XXXX 2023 until you left for Canada. You told me you have not seen your child during that time at all, and until your departure, and that your son stayed with your parents because you were afraid that you may get arrested if you go back.
[14] When I asked you about the impact on your family, you told me that your father, who is a businessman, lost customers and they started avoiding him, and his business diminished after the discovery of your sexuality. Your mother, on the other hand, was expelled from the church and no longer allowed to attend women’s group sessions. While being very shocked and embarrassed initially by the discovery of your sexuality, your parents eventually accepted you, who you are, and combined their efforts to assist you to leave your country to go somewhere else where you can be safe.
[15] In speaking about your relationships today, you told me about the qualities you liked or disliked about your same-sex partners, the moments you have shared with them, as well as details to establish that you were in genuine same-sex relationships. You testified that you were not displaying your affection in public for fear of discovery, and that you remained discreet in these relationships until you got caught with V. Regarding your LGBTQ community engagement here in Canada, you told me that while attending the meetings here in Canada, initially you were shy to appear on camera online for the fear of being recognized and caught. This was the impact from your previous persecution in Kenya.
[16] However, with time, your peers from the LGBTQ community gave you the reassurance, and you told me today that you are now able to freely express your sexuality in Canada without fear, something which is very different from the experience you have in Kenya. In addition to your testimony about your relationships and the issues you have faced in Kenya, I asked you about the differences in expressing your sexuality here in Canada. You told me you have joined XXXX, and this is the organization that you are affiliated with, and that you are enrolled in their programs.
[17] When I turn to the documentary evidence supporting your claim, I find that it corroborates your testimony today. Among the documents that can be found in the disclosure in Exhibits 5.1 to 5.3, I note in particular the following most notable evidence. Education credentials that you have provided, letters of support from your parents, letter of support from your ex-partner V, letter of support from a friend where you were hiding at, letter from Full Gospel Church about expelling your mother, affidavit from a childhood friend, with initial A, that your freedom in Kenya is not guaranteed.
[18] All of these documents fully corroborate your testimony and are consistent with your Basis of Claim allegations. I have no doubt about the genuineness of these documents, and therefore I assign full weight to all of them. You also provided a letter of support from XXXX and photographs, and also documentary evidence about attending pride events. Again, I have no reason to doubt the genuineness of all these documents, and also assign full weight to them.
[19] Today, you have testified in a forthright and spontaneous manner. Your testimony was internally consistent when you provided additional information and documentation, and you did not try to embellish your account. I did not find any major inconsistencies or omissions between your testimony today and your narrative, and thus, on the balance of probabilities, you have established your subjective fear of persecution on the grounds of your sexuality as a bisexual woman.
[20] You provided sincere and spontaneous responses which were very credible, and you were compelling when you were telling me about your son that you have not seen in Kenya. All in all, I find you to be a very sincere and credible witness, and therefore I believe everything that you have alleged in support of your claim.
Well-founded Fear of Persecution
[21] I further find, on a balance of probabilities, that your subjective fear of persecution in Kenya also has an objective basis, and that is based on the documentary country conditions, which can be found in the National Documentation Package for Kenya in Exhibit 3. There are several sources that indicate persecution based on sexual orientation in your country. Most notably, this can be seen in Items 2.1 and Item 6.1, all the way through Item 6.16. Same-sex sexual activity is criminalized under the Kenyan Penal Code, which sets out a sentence of up to 14 years for carnal knowledge against the order of nature.
[22] The criminalization of same-sex activity was upheld by the high court in Kenya in a 2019 decision. 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 level of political office in Kenya, including the former president, who stated in a 2018 interview that Kenya does not consider gay rights relevant, as it goes against the culture or beliefs of Kenyans, and this is very much what you told me about in your testimony today.
[23] Sources also indicate that violence and discrimination against SOGIESC individuals in Kenya is widespread, and includes risks such as murder and violence, verbal assault, rape, blackmail, extortion, arbitrary arrest, physical violence, ridicule, constant harassment, stigma, and exclusion by family and society, including expulsion from the workplace or learning institution, denial of work, denial of housing, and poor access to healthcare. I find all of these experiences are very much relevant to you and your personal circumstances, according to your testimony today, and similar impact happened to your family members in Kenya.
[24] To summarize, the NDP For Kenya makes multiple references for maltreatment of both men and women who identify themselves as SOGIESC individuals, or who choose to have same-sex relationships. This maltreatment amounts to persecution. I am satisfied that there is ample evidence of an objective basis for your subjective fear in this case. I therefore find that you have demonstrated, on a balance of probabilities, that you would face a serious possibility of persecution in Kenya if returned there, based on your sexual orientation as a bisexual woman. Further to that, I find that you have established a well-founded subjective fear of persecution.
State Protection
[25] In assessing the state protection, there is a presumption that a state can protect its citizens except in situations where the state is in a complete breakdown. As noted in section 8.6.4 of the SOGIESC guideline 9, the existence of laws criminalizing sexual orientation, sexual behaviours, gender identities or expression, or sex characteristics, the enforcement of these laws by the state may be evidence that state protection is inadequate.
[26] As same-sex sexual activity is criminalized in Kenya, and since homophobic violence continues with impunity, I find there is clear and convincing evidence that state protection in Kenya would not be available to you as a bisexual woman, should you try to seek it upon return to your country. I therefore 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
[27] I have also considered whether there is a viable IFA for you if you go back to Kenya. As noted in section 8.7.1 of the SOGIESC guideline 9, it is well established in law that an IFA is not viable if a SOGIESC individual must conceal their profile to live in that location.
[28] Given the state’s capacity, the criminalization of same-sex conduct, and the homophobic attitudes that exist countrywide, as outlined earlier in the objective evidence cited above, I find there is no safe place for you to live openly as a bisexual woman in Kenya, and there is nowhere in your country where you would not face a serious possibility of persecution based on your membership in a particular social group. Therefore, I find that there is no viable IFA available to you anywhere in Kenya.
CONCLUSION
[29] In conclusion, on the totality of the evidence, I find that you have a serious possibility of persecution in Kenya on the grounds of your membership in a particular social group of bisexual women. Accordingly, I find you to be a Convention refugee, and accept your claim.
——— REASONS CONCLUDED ———