2024 RLLR 137
Citation: 2024 RLLR 137
Tribunal: Refugee Protection Division
Date of Decision: February 14, 2024
Panel: Dylan Cohen
Counsel for the Claimant(s): El-Farouk Khaki
Country: Kenya
RPD Number: TC3-25757
Associated RPD Number(s): TC3-25756, TC3-25758, TC3-25759
ATIP Number: A-2025-00724
ATIP Pages: N/A
REASONS FOR DECISION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim made by XXXX XXXX XXXX (Primary Claimant) and the three minor claimants, XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX. They all claim to be a citizens of Kenya and are seeking protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”).[1]
[2] The primary claimant has been assigned as the designated representative for the three minor claimants.
[3] In assessing this claim, the Panel has considered and applied the Chairperson’s Guideline on Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, or “SOGIESC” (the Guideline)[2]. This Guideline establishes principles for guiding decision-makers in adjudicating cases involving SOGIESC individuals, including an understanding of the challenges faced by individuals with diverse SOGIESC backgrounds in establishing their claims. With respect to the minor claimants, the Panel has reviewed and applied Chairperson’s Guideline 3: Child Refugee Claimants Procedural and Evidentiary Issues.[3]
DETERMINATION
[4] The Panel finds that the claimants have satisfied the burden of establishing a serious possibility of persecution on a Convention ground under section 96 of IRPA upon return to Kenya.
ALLEGATIONS
[5] The claimant’s allegations are set out in their Basis of Claim (BOC) forms and in the primary claimant’s testimony. In summary, the primary claimant alleges a fear of persecution stemming from her sexual orientation as a lesbian. The minor claimants allege a fear of persecution based their perceived sexual orientation as children of a lesbian woman.
ANALYSIS
Identity
[6] The panel finds that the claimants have established their personal identities, on a balance of probabilities, and that they are citizens of Kenya as established by the primary claimant’s testimony and the identification documentation before me, namely certified true copies of their Kenyan passports, which can be found at Exhibit 2[4].
Nexus
[7] The panel finds that there is a link between the primary claimant’s subjective fear and one of the five grounds, namely her membership in a particular social group as a lesbian. The primary claimant also states that the minor claimants will be seen as gay by the general public and by the authorities due to their relationship to her. As such, the minor claimants also have a nexus to a convention ground, namely as children of a lesbian woman. The panel has therefore assessed the claim under section 96 of IRPA.
Credibility
[8] It is stated in Maldonado[5] that when a claimant swears that certain facts are true this creates a presumption that they are true unless there is a valid reason to doubt their truthfulness. The panel is cognizant of the difficulties that exist for claimants in not just proving the claims but in testifying before the panel, and the inherent stress of testifying on sensitive matters. In making its assessment, the panel has considered all the evidence, including the oral testimony at the hearing, documentary evidence entered as exhibits including counsel’s oral submissions and Chairperson Guidelines. In addition, the panel took into consideration Primary Claimant’s age, education, and level of sophistication. The panel also notes that the strength of the Maldonado presumption varies according to the circumstances of each individual case.[6] The presumption can also be displaced when there are reasons to doubt the truthfulness of the claimant’s allegations.
[9] Based on the Primary Claimant’s testimony at the hearing and the documents in evidence, the Panel has noted no serious credibility issues. She testified in a straightforward manner, and there were no material inconsistencies between her BOC narrative and her statements at the hearing. As such, the Panel has found the claimant to be a credible witness in relation to the core of her claim of being a lesbian woman.
[10] The Primary Claimant testified about how she first came to understand that she was attracted to females when she felt a strong attraction to a student in primary school. She states that her feelings towards this individual grew stronger over time, but she did not disclose her feelings. She states that these feelings towards females continued to grow and she met her first partner in secondary school who was on the same handball team as her. She testified that she developed the courage to disclose her feelings this time, and that her partner had the same feelings. The Panel finds this to be nuanced and genuine testimony. As such, the Panel finds that the claimant entered a same sex relationship in high school as outlined.
[11] The claimant testified that her partner and her were caught at school and subsequently expelled. She states that the news travelled to her home community and she and her family were discriminated against and verbally threatened. The claimant was able to provide in-depth details surrounding the time that she was caught and about her experiences in the community. Based on the detailed testimony and lack of inconsistencies, the panel finds that the claimant was caught with her partner, expelled from school and experienced discrimination as described on a balance of probabilities.
[12] The panel also finds the Primary Claimant’s second same-sex relationship to be genuine. She testified about how they met in college and provided details on how the relationship started. She explained that their friendship lasted for one year until her partner disclosed her feelings to her. She also provided details of when her husband found them together and about how she escaped to another town with the three Minor Claimants. She testified that her husband was able to track them to the new town and that he physically attacked her and the children. She also explained that the news of her sexual orientation had reached the new location and that the Minor Claimants began to face discrimination. She further testified that the Minor Claimants were perceived as gay in the community because they were the children of a lesbian woman. Given the significant details provided and lack of inconsistencies, the panel finds, on a balance of probabilities, that the events occurred as stated and that the Minor Claimants were perceived as gay in the community.
[13] During the hearing, the Panel indicated that XXXX XXXX XXXX birth certificate did not have anyone indicated as the father. When asked about this, the claimant testified that her ex-husband had gotten in a verbal argument with a female receptionist at the hospital. He was told to return to the hospital at another time in order to amend the birth certificate. However, the claimant testified that he did not return as he did not care for the children. The Panel find this explanation to be reasonable given the circumstances, lack of inconsistencies and level of detail provided.
[14] Accordingly, the Panel finds that the primary claimant has established, on a balance of probabilities, that she is a lesbian. Therefore, the primary claimant has established subjective fear of returning to Kenya. Similarly, I find that the minor claimants have credibility established their subjective fear as the children of a lesbian woman based on the primary claimant’s testimony.
Objective Basis
[15] The Panel also finds that the claim is objectively well founded. In making this finding, the Panel refers to the National Documentation Package (NDP) for Kenya, which is filed in Exhibit 3[7]. In particular, the Panel refers to items 2.1, 6.1, 6.4, 6.6, and 6.7.
[16] Specifically, the Panel notes that same-sex sexual activity is criminalized under the Kenyan penal code. This includes sections 162 which sets out a sentence of up to 14 years for “carnal knowledge against the order of nature,” and 165 which sets out a 5-year sentence for gross indecency[8]. This criminalization of same-sex sexual activity was upheld by the High Court of 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[9]. Sources also note that violence and discrimination against SOGIESC individuals in Kenya is widespread. SOGIESC individuals also face difficulties in obtaining assistance from the authorities, with reports indicating that SOGIESC individuals have faced harassment, extortion, and sexual or physical assault by police in the past. Sources indicate that to maintain their safety, SOGIESC individuals often need to hide their sexual orientation or gender identity.[10]
[17] Based on this evidence, the Panel finds that there is, on a balance of probabilities, an objective basis for the Primary Claimant’s fears. As subjective fear and objective basis have been established, I find that that the primary claimant has a well-founded fear of persecution in Kenya. The Panel therefore finds that the primary claimant would face a serious possibility of persecution should she be returned to Kenya.
[18] Similarly, the Panel finds that the minor claimants have established an objective basis and have a well-founded fear of persecution on the basis of their perceived sexual orientation due to their relationship with the primary claimant. Given that they have sufficiently demonstrated that they were perceived as gay by the community in Kenya, the objective documentary evidence above applies to them as well.
State Protection
[19] In assessing the issue of state protection, there is a presumption that the state is capable of protecting its citizens except in situations where the state is in complete breakdown. The claimant is tasked with rebutting the presumption of state protection by providing clear and convincing evidence that protection in their home country is inadequate.
[20] The police are one of the major perpetrators of violence and abuse against LGBTQ persons notwithstanding that police have been getting some additional training on gender and sexual diversity.[11] Arbitrary arrest and detention of LGBTQ persons occurs. As well, police use the law to their benefit to seek extortion and blackmail from LGBTQ persons. If a person does not comply with police demands, police charge them under the penal code.[12]
[21] According to the Chairpersons Guideline Guideline 9, 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. Even if irregularly enforced, the criminalization of the existence or behaviours of SOGIESC individuals may create a climate of impunity for perpetrators of violence and normalize acts of blackmail, sexual abuse, violence, and extortion by state and non-state actors.[13]
[22] As the police are an agent of persecution, it would not be reasonable for the primary 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 primary claimant. For the same reasons, the Panel finds that there is no adequate state protection for the minor claimants as perceived SOGIESC individuals.
Internal Flight Alternative
[23] The Panel has also considered whether there is a viable internal flight alternative that exists for the claimants. Based on the evidence, the Panel finds, on a balance of probabilities, that there is no viable IFA in Kenya because the risk to the claimants is throughout the country as the Penal Code applies across Kenya. Additionally, the homophobic attitudes exist country wide.
[24] Chairpersons Guideline 9 also states that it is well-established in law that an IFA is not viable if a SOGIESC individual must conceal their SOGIESC in order to live in that location.[14]
[25] Given the state’s criminalization of same sex conduct and homophobic attitudes that exist countrywide, as outlined in the objective evidence cited above, the Panel finds that there is no safe place for the Primary Claimant to live openly as a lesbian woman in Kenya on a balance of probabilities. Therefore, the Panel finds that there is no viable IFA for her anywhere in Kenya.
[26] The Panel also finds that no viable IFA exists for the minor claimants. The treatment of perceived SOGIESC individuals is the same countrywide given the criminalization of same sex conduct and general homophobic attitudes. Accordingly, the Panel finds that there is no viable IFA for the Minor Claimant’s anywhere in Kenya.
CONCLUSION
[27] Based on the analysis above, the Panel concludes that the claimants are Convention refugees as per section 96 of IRPA. Accordingly, the Panel accept their claims.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics: https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir09.aspx
[3] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, September 1996.
[4] Exhibit 2
[5] Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
[6] See Lunda v. Canada (Citizenship and Immigration), 2020 FC 704, at paras 29-31 for numerous examples of situations in which the presumption may be rebuttable.
[7] Exhibit 3
[8] National Documentation Package, Kenya, 31 August 2023, tab 2.1: Kenya. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[9] National Documentation Package, 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.
[10] ibid
[11] National Documentation Package, 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.
[12] ibid
[13] Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics
[14] ibid