2024 RLLR 103

Citation: 2024 RLLR 103
Tribunal: Refugee Protection Division
Date of Decision: August 21, 2024
Panel: Cornelia Stan
Counsel for the Claimant(s): Jordan Duviner
Country: Kenya
RPD Number: TC3-41137
Associated RPD Number(s): N/A
ATIP Number: A-2025-00611
ATIP Pages: N/A

DECISION

[1] MEMBER: These are the reasons for the decision in the claim of XXXX XXXX XXXX, file number TC3-41137. These are the reasons for the decision in the refugee claim of XXXX XXXX XXXX who alleges to be a citizen of Kenya and is seeking protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] During the hearing and in rendering my decision, the panel has applied the Chairperson’s Guideline 9, Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.

ALLEGATIONS

[3] The specifics of the claim are set out in the claimant’s narrative, Basis of Claim form, and in oral testimony. In summary, the claimant is a 30-year-old male from Trans-Nzoia in Kenya. The claimant fears he will suffer discrimination, physical violence, and ostracis (sic) from his family members, members of his local community where he was raised, members of his society in general, and the Kenyan state on account of his sexual orientation being a gay man in Kenya.

DECISION

[4] The panel finds that the claimant is a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act as there is a serious possibility of persecution should the claimant return to Kenya on account of his membership in a particular social group, specifically being a gay male in Kenya. The panel’s reasons are as follows.

Identity

[5] The panel finds that the personal identity and national identity of the claimant as a national of Kenya has been established on the balance of probabilities by the sworn testimony in his Basis of Claim form, testimony, and the certified copy of his Kenyan passport.

[6] The panel asked the claimant why on his diploma there is a different name, XXXX instead of XXXX, and the claimant was able to provide explanation for his name that appeared on the school documents as in Kenya, it is a custom to add XXXX to the last name and this is a common practice in the country. He also mentioned that he has the name XXXX as his Kenyan ID document who (sic) has not been able to be provided to the Board. As asked by the counsel, he provided explanation of why he has this name, his name in the passport, the last name of XXXX. The panel accepts his explanation and finds on the balance of probabilities that the claimant’s identity and his nationality as a Kenyan has been established.

Nexus

[7] For a claimant to be a Convention refugee, the fear of persecution must be the reason of one of the five (5) grounds enumerated in the Convention Refugee division, definition. The claimant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion. The panel finds that the claimant’s allegations establish a nexus to the Convention ground on membership in a particular social group. This nexus arises from his allegation of identifying as a gay and being identified by his family members and community in Kenya as a gay man. The panel will therefore assess the claim under section 96.

Credibility

[8] The panel finds the claimant to be credible and therefore accepts what he alleges in support of his claim.

[9] When claimants affirm to tell the truth, it creates a presumption that their allegations are true unless there is a reason to doubt their truthfulness.

[10] Based on the claimant’s testimony at the hearing, the panel has not noted any serious credibility issues. The panel finds no reason for the presumption of truthfulness to be rebutted in his case. The panel found the claimant’s testimony to be straightforward and forthcoming and there were no relevant inconsistency in his testimony or contradictions between the testimony and other evidence before the panel who have not been properly explained. The claimant testified that he discovered his sexual orientation when he was 13 years old but hew as afraid of sharing his feelings due to the fear of being persecuted by his community.

[11] The claimant provided details surrounding his same sex relationships with D in Kenya. He provided details in his BOC and how he met his partner in school, and they remain friends even after graduation. He testified about the time when he came to realize his sexual orientation as a gay man. He spoke in-depth about how he experienced great content where he discovered and accepted his orientation as a gay man, and he was ale to describe how this made him feel.

[12] The claimant testified that he started his relationship with his boyfriend, D, when he was 15 or 16 years old only to clarify afterwards that he misunderstood the question and that he actually started to have feelings for D when he was 15 or 16 years old in school, but they only started the relationship in XXXX 2019.

[13] The claimant testified about the only same sex relationship from Kenya which started as I said in XXXX 2019 and how he was discovered by his mother who alerted the community. This event resulted in the claimant fleeing his village from, for Eldoret in XXXX 2019 where he continued to live with his boyfriend D under constant fear for their future.

[14] In XXXX 2020, the claimant allegedly received a call from the Mungiki gang, and he received threats, and he had to flee again with D in Mombasa to live with another person with the initial E. They lived in Mombasa until XXXX 2021 when his friend, E, caught him and his boyfriend engage in sexual act and ordered them to leave the house.

[15] The claimant and his boyfriend D moved to Nakuru in XXXX 2021 to live with their friend with the brother B. They both lived in hiding until XXXX 2021 when the claimant was recognized by a person from the Mungiki clang. The claimant decided to flee this person’s place in XXXX.

[16] The claimants then fled XXXX for Canada on XXXX 2023, on XXXX XXXX 2023, where he filed a claim for refugee protection in August 2023.

[17] The claimant provided numerous pieces of documentary evidence to support his allegation. I found the letters of support from his friend B, his cousin C, and his brother M at Exhibit 8 from (inaudible) to be helpful in establishing the credibility of the claimant as they fully corroborate the claimant’s evidence, specifically regarding the issues of the claimant’s sexual orientation and the ongoing threats that the claimant received on a regular basis.

[18] He also provided photographs of him and his previous same sex partner, D, and I find the evidence has served to corroborate the allegation of the same sex relationship and your sexual orientation as a gay man. As such, I assign them full weight.

[19] I note that today you provided additional evidence to support your participation in the LGBTQ [2SLGBTQI+] community activities here in Canada and you testified regarding your involvement in those organizations such as the XXXX and XXXX and what being able to attend events with an organization like this means to you; as well, about your participation in the Pride parade from July 2024. You did not try to embellish.

[20] I did not draw a negative inference from the fact that you are not currently involved right now in a same sex relationship here in Canada as you explained the reason for which you decided to end the previous relationship you had with B here in Canada and wait to have another one; also, because you were sincere and spontaneous in your testimony today and you have credibly established your SOGIESC profile throughout your testimony and all other documents you have provided to corroborate on your life experience as a gay individua in Kenya and also in Canada.

[21] I find that your testimony about your family members becoming aware of your sexual orientation supported your credibility about your allegation because you were able to spontaneously offer these details which further establish your sexual orientation in addition to your own credible and detailed evidence and the other documentation you were able to provide which can be found in Exhibits 5 to 8 which provides reliable corroboration for the core of your allegation that you are a gay man. Aside, I assign these documents full weight. I find that you have credibly established your sexual orientation as a gay man, and I find that your subjective fear is established by your credible and corroborative testimony.

[22] Given the significant details provided and the lack of inconsistency, the panel finds on a balance of probabilities that the claimant’s above-mentioned allegations are credible, and the claimant is a credible witness. The panel therefore finds the claimant has proven the core allegation of his claim.

Well-Founded Fear of Persecution

[23] The panel finds that the claimant’s subjective fear is objectively well founded.

[24] In Ward, the Supreme Court of Canada held that the test for establishing a fear of persecution is bipartite in nature. Refugee claimants must establish both that they have subject, they have a subjective fear of persecution if they return to their home country and that their fear is well-founded in an objective sense. The subjective component relates to the existence of fear of persecution in the mind of the refugee and objective component requires that the refugee’s fear is to be evaluated objectively to determine if there is a valid basis of that fear.

[25] The law is clear that the definition of Convention refugee is forward looking. As detailed above, the claimant testified about the harms suffered on account of his sexual orientation and he fears that he will continue to suffer discrimination, physical violence, ostracis (sic) from his family members or the local community if he were to return to Kenya. The claimant’s subjective fears are supported by the objective evidence which is the National Documentation Package for Kenya that I will make reference to from May 31st, 2024, version which is the Exhibit 3.

[26] The panel finds that the claimant has a subjective fear of persecution in Kenya and the claimant’s objective fears are objectively well founded. The claimant has established a future risk, and he will be subjected to persecution at the hands of his community and the public at large and also the Kenyan authorities like police if he were to return to Kenya.

[27] The panel finds that the objective country evidence supports the claimant’s allegation that men who engage in same sex relationships are at a serious risk of persecution by the state which criminalizes the same sex relationship as well as by significant segments of the Kenyan population itself. By the provision of section 162 and 163 of the Penal Code of Kenya, consensual same sex relations is punishable up to 14 years in prison and is referred to unnatural offenses.

[28] In 2019, the High Court of Kenya dismissed a challenge against this law which has been viewed as legitimizing homophobia in Kenya.

State Protection

[29] The panel finds that the claimant has rebutted the presumption of state protection and finds that there is no adequate state protection for the claimant in Kenya. Excpet in situations where the state is in complete breakdown, a state must be presumed capable of protecting their citizens. To rebut this presumption, the onus is on the claimant to establish on a balance of probabilities that through clear and convincing evidence that their state protection is inadequate. The panel notes that the more democratic a state, the harder it is to displace this presumption. However, a claimant is not required to risk his life seeking ineffective protection of a state merely to demonstrate that ineffectiveness. Failure to seek protection from authorities can be fatal to a claim unless it has been established that the protection would not be reasonable (inaudible) finds the claimant has rebutted this presumption

[30] According to the National Documentation Package for Kenya, the police are one of the major perpetrators of violence and abuse against LGBTQ persons in Kenya. Notwithstanding that police have been getting additional training on gender and sexual diversity, arbitrary arrest and detention of such persons continued to persist. As well, police used the law to use their benefit to seek extortion and blackmail from LGBTQ persons. If a person does not comply to police demands, police charge them under the Penal Code.

[31] The SOGIESC guidelines indicates that the existence of laws criminalizing non-confirming Sexual Orientation, Sexual Behaviours, Gender Identities or Expressions, or Sexual Characteristics and the enforcement of these laws by the state may be evidence that state protection is inadequate.

[32] The police regularly enforce the criminalization of the existence of behaviours of LGBTQ individuals which in turn creates a culture of impunity for the perpetrators of violence and normalizes acts of blackmail, sexual abuse, violence, extortion by both state and non-state actors.

[33] As the police are an agent of persecution, it may not be reasonable for the claimant to approach them for protection. As such, the presumption of state protection has been rebutted and the panel finds that there is no adequate state protection available to the claimants.

Internal Flight Alternative

[34] The panel finds that there is no viable internal flight alternative or IFA for the claimant in Kenya. IFA arises when a claimant who otherwise meets all the elements of definition of the Convention refugee in his home area of the country nevertheless is not a Convention refugee because he can live safely elsewhere in his country.

[35] The Federal Court of the Appeal in Rasaratnam developed a two (2) pronged test when assessing IFA which entails consideration of two (2) matters. The RPD must be satisfied on a balance of probabilities that there is no serious possibility of persecution the claimant would be persecuted or subject personally to a risk of section 97(1) harm in the proposed IFA and the conditions in the proposed IFA are such that it would not be unreasonable in all circumstances including those particular to the claimant for him or her to seek refugee there.

[36] The panel must assess whether there is another location in Kenya in which the claimant would not face a serious possibility of persecution on a balance of probabilities or a risk of serious section 97 harm and whether it would be reasonable for the claimant to move there.

[37] The country documentation referred to above indicates that the situation for LGBTQ individuals in circumstances like the claimants is, is the same throughout the country and that he will face a serious possibility of persecution or risk to life anywhere in Kenya based on his sexual orientation.

[38] The SOGIESC guideline states that it has been well established in law that IFA is not viable if the SOGIESC individual must conceal profile as a SOGIESC individual to live in that location. Given the state’s criminalization of the same sex conduct and homophobic attitudes that exist country wide as outlined in the documentary evidence cited above, there is no safe place for the claimant to live openly as a gay man in Kenya.

CONCLUSION

[39] In light of the preceding, the panel concludes that the claimant is a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act or IRPA. Accordingly, the panel accepts his claim.

——— REASONS CONCLUDED ———