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Categories
All Countries Turkey

2019 RLLR 25

Citation: 2019 RLLR 25
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2019
Panel: Jiyoung Kim
Counsel for the Claimant(s): Cemal Acikgoz
Country: Turkey
RPD Number: TB8-29430
ATIP Number: A-2021-01124
ATIP Pages: 000156-000158

DECISION

[1]       MEMBER: You’re claiming to be a citizen of Turkey, and are claiming refugee protection pursuant to Section 96 and 97 Subsection of the Immigration and Refugee Protection Act. I find that you are a Convention refugee for the following reason.

[2]       For making this decision and in formulating questions for the hearing, I considered Chairperson’s Guideline 9, with regarding to proceedings before the Immigration and Refugee Board involving claims of Sexual Orientation and Gender Identity and Expression.

[3]       You allege the following. That you are a citizen of Turkey, and that if you were to return, you will face persecution as a member in a particular social group, which is your sexual orientation. You also allege that your work, that criticized the conservative society in Turkey, led you to be targeted by the police in addition to your sexual orientation. In addition, you alleged that you will be considered as a draft dodger by the Turkish authorities since the extension to the deferral from the mandatory service ended. You allege that there is no state protection for you or an internal flight alternative.

[4]       Your personal identity as a citizen of Turkey has been established by your oral testimony and the supporting documents, which is your passports. I find that on a balance of probabilities that identity and country of reference have been established.

[5]       I find that there is a link between what you fear and one of the five Convention grounds, specifically particular social group, namely your sexual orientation. Therefore, I assessed your claim under Section 96.

[6]       In terms of your general credibility, I have found you to be a credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim form. In support of your claim you provided documents for your claim, including the letters from your mother, friends, medical report and photographs. Your oral testimony was straightforward and was largely in keeping with your Basis of Claim form and there were no significant inconsistencies or omissions that went to the heart of the claim. I therefore find the following to be credible. That you are a bisexual man facing persecution in Turkey due to your sexual orientation.

[7]       Your o-, oral testimony today included details regarding your initial revelation that you are also attr-, attracted to person of the same gender as well as person of the opposite gender. You also provided details regarding your same-sex relationships in Turkey and the violence you faced from the society as well as from the police that led you to believe that you were targeted by the state authorities. You also provided details about your activities in Turkey such as attending the pride parade, which led to your detainment by the police, and attending social events hosted by the LGBTQ+ focus groups in Turkey. You also provided documents in support of your testimony that you are a bisexual man, those documents include letters of support from your friends, your parents, photographs and the membership statement from the 519 Organization. Your testimony and the supporting documentation all established that you are a bisexual man.

[8]       The objective documentation supports your allegation that individuals in your circumstance face human rights abuse for LGBT person, and that although there’s no law that criminalize LGBTQ+ communities, the provisions of law on offences against public morality, protection of family, and unnatural sexual behaviour are used as a basis for abuse according to NDP dated March 29, 2019 Item 2.1. Bans on LGBTQ+ events by the State officials in recent years as demonstrated in NDP Item 2.7, show that the LGBTQ+ communities and their members face discrimination and violence based on their sexual orientation and gender identity. Information on both the NDP and the country condition package submitted by the counsel Exhibit 4, all corroborate the heightened level of violence against the LGBTQ+ communities and their rights by the State authorities. I therefore find that you have a well-founded fear of persecution.

[9]       I find that adequate state protection will not be available to you if you were to seek it in Turkey. You testified that you never sought prate-, state protection because the State will be unwilling to protect you, and because the police were the ones who were targeting you. And this is corroborated by the objective documentary evidence dat-, it indicates that NDP Item 1.14, that the government is unable or unwilling to protect vulnerable LGBTQ+ people from viol-, violence and discrimination. Impunity for crimes against LGBTQ+ individuals continue to be reported as a problem. And that according to NDP 2.1, there is no protection based on sexual orientation or gender identity on the criminal code. In light of the objective country documentation, I find that the claimant has rebutted the presumption of state protection. Based on your personal circumstances as well as the objective country documentation, I find that the adequate state protection will not be available to you, as the state will be unwilling and unable to protect you in Turkey.

[10]       As you have rebutted the presumption of state protection and since the country documentation indicates that the situation for individuals in circumstances such as yours is the same throughout the country, I find that you do not have a viable internal flight alternative.

[11]     Based on the totality of evidence, I find that you have established that there is a serious possibility of persecution on the Convention grounds, namely your membership in a particular social group as a bisexual person. I therefore find that you are a Convention refugee and I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Pakistan

2019 RLLR 24

Citation: 2019 RLLR 24
Tribunal: Refugee Protection Division
Date of Decision: June 26, 2019
Panel: Keith Brennenstuhl
Counsel for the Claimant(s): Kristina Cooke
Country: Pakistan
RPD Number: TB8-27592
ATIP Number: A-2021-01124
ATIP Pages: 000151-000155

REASONS FOR DECISION

On June 26, 2019, the Refugee Protection Division (RPD) heard the claim of [XXX] who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral positive decision and Reasons for decision. This is the written version of the oral decision and Reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate.

INTRODUCTION

[1]       These are the reasons for the decision in the claim of [XXX], who claims to be a citizen of Pakistan, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

ALLEGATIONS

[2]       The allegations are fully set out in the claimant’s Basis of Claim form. The claimant identifies her religion as the Shia sect of Islam. Her problems arose during her teaching of her grade 10 students, when she spoke out against terrorist acts that had happened the day before when a girls’ school was destroyed in a nearby province. She expressed her view that the real culprits were Madrasahs and that they were incubators for terrorism. She talked about terrorist organizations including the Lashkar-e-Jhangvi (LeJ) saying that people who gave them refuge were equally culpable for their terrorist acts.

[3]       Accused of preaching religion and speaking out against Sunnis, the principal terminated the claimant’s employment the next day. Rumours spread that she had been terminated because of her involvement in “immoral activities”.

[4]       Three days later, while waiting at a bus stop, two men on a motorbike drove by and fired two gunshots around her. She registered a First Information Report (FIR) at the police station. On the same night, she received a call on her cell phone from a man claiming to be a member of LeJ, saying the attack earlier that day had been a warning from them and that they would not tolerate a Shia pervert who was involved in spreading hatred in school against Sunni Islam.

[5]       She relocated to [XXX] and changed her cell phone number. A week later, she learned from her former neighbour that two men knocked at her door and had inquired about the claimant, indicating that the claimant was on their hit list. She contacted the police to update them on the situation but they had nothing to update her with or help to offer.

[6]       The claimant raised funds for an airline ticket and visa and fled Pakistan to the USA. Shortly thereafter she made her way to Canada where she made her refugee claim.

[7]       The claimant is afraid of returning to Pakistan because she has been targeted by the LeJ for spreading, what is perceived to be, anti-Sunni sentiments.

DETERMINATION

[8]       I find that the claimant is a Convention refugee as she has established a serious possibility of persecution should she return to Pakistan based on the grounds in section 96.

ANALYSIS

Identity

[9]       I find that the claimant’s identity as a national of Pakistan is established by the documents provided, including a certified true copy of her Pakistan passport.

Nexus

[10]     I find that the claimant has established a nexus to section 96 by reason of religion.

Credibility

[11]     The claimant’s evidence is, on the balance, internally consistent, inherently plausible, and consistent with the documentary evidence on country conditions in Pakistan. Furthermore, the allegations are corroborated by personal documents that I do not have sufficient reason to discount, including corroboration of the claimant’s identity as a Shia, and as a teacher, and that she was terminated from her teaching position on the false allegation of spreading hatred against Sunni Islam. The FIR supports her allegation that you were fired upon by two unidentified persons on a motorbike. I, therefore, find this evidence to be credible and that the allegations are probably true.

Objective basis of future risk

[12]     Based on the credibility of her allegations, and the documentary evidence set out below, I find that the claimant has established a future risk that she will be subjected to threats, violence and even death at the hands of Sunni militant groups if she were to return to Pakistan.

[13]     Country condition documents indicate that Shia Muslims face increasing threats in Pakistan. They are being systematically targeted and shot dead by Sunni militants who do not consider them as Muslims. There is a general lack of effective state protection for those Shia Muslims who are targeted by Sunni militant groups. The Pakistani government’s response to violent attacks against Shia is characterised as grossly inadequate; it is described as lacking political will to address violence against Shia. Militants targeting Shia Muslim act with “impunity” (National Documentation Package (NDP) for Pakistan (January 31, 2019), Item 12.5). Shi’ites, according to the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan (Item 1.8) face a growing threat of sectarian attacks with attacks primarily targeting ordinary individuals. I should add that the claimant would have a heightened vulnerability in that she is a female educator as well. Anti­Shi’ites speech reportedly permeates all sectors of society, and extremist groups are reported to have publicly called for the killing of Shi’ite individuals and have used methods to instill fear and force them to flee. According to a document entitled Everything has shattered- rising levels of violence against Shi’a in Pakistan (Item 12.23), the Pakistani government completely fails to protect its Shia population and has not been able to successfully counter allegations that it is protecting militants.

Nature of the harm

[14]     The harm that the claimant would face if she were to return to Pakistan clearly amounts to persecution.

State protection

[15]     The objective evidence confirms that state protection, as it relates to sectarian violence against Shia, is ineffective as already canvassed earlier. I am satisfied, therefore, that the claimant will not be able to avail herself of adequate state protection in the face of persecutory acts from non-state actors if she must return to Pakistan.

Internal flight alternative (IFA)

[16]     I have considered whether a viable internal flight alternative exists for the claimant. According to the UNHCR Eligibility Guidelines, given the wide geographic reach of some armed militant groups, a viable IFA will generally not be available to individuals at risk of being targeted by such groups.

[17]     I am satisfied, given the claimant’s profile as a Shia’ female educator, she will face a serious possibility of persecution based on her profile and in particular her religious profile anywhere in Pakistan. Attacks by extremists targeting Shia in Pakistan is widespread (Item 12.23) and police often fail to protect religious minorities, including Shia, from attacks.

CONCLUSION

[18]     Based on the forgoing analysis, I conclude that you are a Convention refugee. Accordingly, I accept your claim.

Categories
All Countries Mexico

2019 RLLR 23

Citation: 2019 RLLR 23
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2019
Panel: Kevin Fainbloom 
Counsel for the Claimant(s): Clement Osawe
Country: Mexico
RPD Number: TB8-27168
Associated RPD Number(s): TB8-27821, TB8-27316
ATIP Number: A-2021-01124
ATIP Pages: 000148-000150

DECISION

[1]       MEMBER: So, these are the reasons into the determination that the, that Mr. [XXX], [XXX], his wife [XXX] and their youngest son [XXX] are people in need of protection. The claimants are citizens of, yeah, the-, the-, the claimants that remain at this point in the claim are citizens of Mexico claiming refugee protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act.

[2]       The allegations of the claimants is contained in the Basis of Claim form narratives. I’m going to briefly summarize those allegations. [XXX], the principal claimant was a [XXX] and dump [XXX] and [XXX] in Mexico from [XXX] 2014 until [XXX] 2017. He worked in a number of States that bordered the United States. In [XXX] 2016, he was befriended by 8 men who became very friendly with him and they spent some time eating together at a near-, at a restaurant. After a number of different encounters with the same men, the men indicated to the principal claimant that they wanted him to work for their company. These men indicated they knew about his wife, his children, he-, they knew where they lived and so on. They said that they were members of the Gulf cartel and they needed his assistance.

[3]       The principal claimant told them he needed time to think about this offer. On [XXX] 2016, the principal claimant was kidnapped, taken to a ranch and tortured. They showed him on a video phone that his wife had been kidnapped as-, had been taken, she was being-, and she was being raped, while their youngest child-, while the child was in a different room. They also showed him a video in which they were killing people and chopping up their bodies. They ordered the principal claimant to get the company’s [XXX] and take them to the border with the United States. On [XXX], they shot up his car and left pictures of people that had been chopped up. On [XXX], they-, they went to his house, kidnapped him from the home, took him to an isolated area where he was beaten. Another man was brought to this area and murdered in front of the principal claimant. The principal claimant returned to his work on [XXX] the [XXX], he gave notice that the was going to be resigning from his position. He quit his job on [XXX] the [XXX]. Two days later he and the other claimants relocated to hide themselves at the principal claimant’s in-law’s home. Unfortunately, the death threats continued, the principal claimant was able to leave Mexico and travelled and made his way to Canada. His wife and two children remained in Mexico and left at a later time, until July of last year when they-, they were all joined together in Canada. They are now afraid to return to Mexico.

[4]       After the purposes, the reason I just want to clarify that the claim of Justice [XXX], this couples’, this couples’ oldest child was withdrawn at the outset of hearing as this child is an American citizen and who is not intending to pursue a claim against the United States.

[5]       The three remaining claimants that is [XXX], [XXX] and [XXX] I find that they are not Convention refugees as they do not have a well-founded fear of persecution for a Convention ground in Mexico. However, I find that they are people in need of protection, as their removal to Mexico would subject them personally to a risk to their lives.

[6]       The claimant’s identities as-, as citizens of Mexico is established by the documents on file which include copies of their passports.

[7]       With respect to credibility, as I indicated to the principal claimant, I have some concerns which are properly called plausibility concerns. Specific plausibility of the family remaining at their in-law’s home after they had been found there. The plausibility of their continuing to send their son to school. The plausibility of the principal claimant giving notice that he was going to be leaving his work, rather than just working-, just leaving quietly. However, notwithstanding these concerns, there are a number of corroborative documents that are helpful in establishing the credibility. I do believe the principal claimant has been traumatized in some fashion. The female adult claimant was questioned and provided some evidence which I thought was quite credible and referred to her being subject to rapes. The claimant’s allegations are not inconsistent with country conditions and the types of things that can happen to people there who are-, who are in some form of conflict or trouble with the-, with the Gulf cartel. So, on a balance of probabilities, I accept the claimant’s allegations to be credible. That is, I accept that because of the principal claimant’s ability as a [XXX], as a [XXX], he was of interest to the Gulf cartel. I accept that he was pursued by the Gulf cartel to work for them and I accept that Gulf cartel was intent on harming him and his family when they came to believe that he was not going to be co-operative.

[8]       Given that I accept those allegations, the current conditions in Mexico indicate that there is an objective basis to their fear of returning to that country. Gulf cartel and other-, other organized criminal groups have been implicated in numerous killings and acting with impunity and most tragically at times in league with corrupt federal state, local and security officials. Criminal organizations have been involved in forced disappearances, torture, sexual violence, kidnappings and-, and so on. So, I believe if these claimants return to Mexico, their lives would be at risk of these agents of harm.

[9]       I have considered whether adequate state protection would be available or whether there might be a viable internal flight alternative. I find given the complicity, the documents referred to of the criminal organizations working with federal, state, local and security officials, that adequate state protection would not be provided. I would note, that the principal claimant described how he would be escorted by the army and the police when he [XXX], they wanted him to drive to the-, to the border with the United States, which obviously suggests again, corrupt officials being involved in these activities. So, I don’t believe adequate state protection would be available with respect to a viable internal flight alternative, I find there would not be one. There’s insufficient evidence before me that the Gulf cartel cannot reach to anywhere in Mexico, if so desired. In particularly, in light of the corruption, I’ve just referred to it is quite reasonable to assume that if they were intent on finding someone they could find a person who is living above ground, that is leaving and operating in-, in any free manner. So, I did not believe there would be a­ ‘ a viable internal flight alternative.

[10]     So, to conclude, I find the claimants face a risk to their lives if returned to Mexico and accordingly, I find the claimants to be people in need of protection pursuant to Section 97(1)(b) of the Immigration and Refugee Protection Act.

———- REASONS CONCLUDED ———-

Categories
All Countries Iran

2019 RLLR 22

Citation: 2019 RLLR 22
Tribunal: Refugee Protection Division
Date of Decision: August 7, 2019
Panel: J. Bousfield
Counsel for the Claimant(s): Ardeshir H. Zarezadeh
Country: Iran
RPD Number: TB8-24144
Associated RPD Number(s): TB8-24188, TB8-24203, TB8-24203, TB8-24204
ATIP Number: A-2021-01124
ATIP Pages: 000145-000147

DECISION

[1]       MEMBER: I’ve considered the testimony and evidence in this case and I’m rendering an oral decision. Written reasons will be provided.

[2]       This is the decision in the claims for refugee protection of [XXX], [XXX], [XXX], and [XXX]. They claim to be citizens of Iran from Tehran. They’re claiming refugee protection under Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[3]       The principal claimant was designated representative for the minor claimants.

[4]       I’m satisfied that the claimants are citizens of Iran and as to their personal identity based on their passports which can be found in Exhibit 1.

[5]       The details of the allegations appear in the answers to the principal claimant’s Basis of Claim Form which is Exhibit 2.1 and were elaborated upon by him in oral testimony during the hearing this morning. The central allegations of a much longer narrative are the following.

[6]       The principal claimant made police complaints in regard to a business dispute with a well connected landlord. The landlord retaliated by using connections in the police and the courts to have the complaints dismissed. He then had the principal claimant arrested, detained, and accused of insulting the Iranian regime. The principal claimant therefore fled to Turkey in [XXX] 2017.

[7]       Iranian authorities harassed and threatened the female claimant after the principal claimant went to Turkey. The claimants therefore fled to Canada on temporary residence visas in July 2018 and initiated these inland refugee protection claims a few weeks after their arrival.

[8]       The claimants have been politically active against the Iranian regime while they’ve been in Canada. They fear political persecution if they return to Iran.

[9]       For the following reasons I find that the claimants are Convention refugees.

[10]     The affirmed testimony of refugee claimants is presumed to be true, unless it is internally inconsistent, inherently implausible, or contradicted by documentary evidence on country conditions. In this regard I am relying on the Federal Court of Appeal decision in Maldonado.

[11]     For the most part there was no such fault with the principal claimant’s testimony. Furthermore, the allegations in the case are corroborated by a number of personal documents that I do not have sufficient to discount including probative photographs, a court order, a lease, and a statement from the principal claimant’s former business partner. These documents can be found in Exhibits 4 and 5.

[12]     For all these reasons I find that the principal claimant is a credible witness and that the central allegations in this case are all true, on a balance of probabilities.

[13]     The country documentary evidence before me indicates that peaceful political opposition to the Iranian Government and its policies and perceived opposition in this regard will attract a serious possibility of persecution by the government in Iran.  The country documents in this regard can be found in Sections I, 2, 4, 5, 9, 10, and 12 of Exhibit 3 which is the National Documentation Package for Iran for March 29, 2019.

[14]     Therefore, based on this country documentary evidence and the credible allegations, I find that the claimants have a well-founded fear of persecution in Iran by reason of their perceived anti­government political opinion and/or their family relationship to the principal claimant.

[15]     As the Government of Iran is an agent of persecution, I find that adequate State protection and viable internal flight alternatives are not available to the claimants.

[16]     I therefore conclude that they’re Convention refugees. The … these claims are therefore accepted. This decision is concluded. Thank you for corning. Good morning.

[17]     Thank you, Madam Interpreter.

[18]     INTERPRETER: Thank you.

[19]     CLAIMANT: Thank you.

———- REASONS CONCLUDED —

Categories
All Countries Turkey

2019 RLLR 21

Citation: 2019 RLLR 21
Tribunal: Refugee Protection Division
Date of Decision: November 26, 2019
Panel: Dorothy E. Fox
Counsel for the Claimant(s): Aleksandr Radin
Country: Turkey
RPD Number: TB8-23829
ATIP Number: A-2021-01124
ATIP Pages: 000141-000144

DECISION

[1]       MEMBER: This is the decision in the claim for refugee protection made by [XXX] herein after the claimant, pursuant to Section 97 and 97-, 96, sorry, and 97(1) of the Immigration and Refugee Protection Act.

[2]       She alleges she cannot return to Turkey, her country of citizenship where she’ll be persecuted because of her sexual orientation. The Panel has considered your testimony and other evidence in the case and is ready to render its decision orally.

[3]       The Panel finds the claimant to be a Convention refugee as she has established a well-founded fear of persecution in Turkey based on the Convention ground. Having membership in a particular social group, namely a lesbian. Panel considered Chairperson’s Guideline 9 in relation to proceedings before the Immigration and Refugee Board of Canada involving sexual orientation and gender identity and expression. In rendering its decision, the Panel has concern for the particular challenges that the LBGT individuals from Turkey may face in presenting their case. Since this case involves allegations of gender related violence, the Panel considers Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender Related Persecution. These Chairperson’s Guidelines assist in assessing the key evidentiary elements in determining to what extent women making a gender related claim of fear of persecution may successfully rely on any convention ground and under what circumstances gender violence constitutes persecution.

[4]       The claimant’s allegation are set in her Basis of Claim Form, marked as Exhibit 2 on the consolidated list of documents in this matter. The claimant’s fears being seriously harmed and or o-,ostracized by her family members and fears being seriously harmed or killed by members of the Turkish community or her father on account of her sexual orientation. The claimant has-, was raised in a conservative and religious-, conservatively religious Turkish family. In high school she realized that she was attracted to girls, however, she was never able to talk about it with students or her parents or express any feelings about this with her brother as well. In her first year of university, the claimant met and became friends with [XXX], this relationship developed into a sexually intimate relationship while they were rooming together. Although they were partners for over seven years, the claimant had to hide their relationship from her family and society because of Turkey’s conservative culture.

[5]       In [XXX] of 2-, 2018, the claimant traveled to Canada to study. Two weeks after arrival in Canada, she met and became sexually intimate with a-, a lady named [XXX]. On [XXX] the claimant disclosed this to [XXX], that she had this relationship with [XXX], however, [XXX] did not take this news very well and threatened revenge. The next day, the claimant received a phone call from her father during which he threatened her life for dishonouring and shaming the fa-, family after [XXX] had reaz-, revealed families, sorry, a photo to her family with respect to intimate pictures. The claimant then decided to claim refugee status in August of 2018.

[6]       The Panel is satisfied with the claimant’s personal identity and status as a citizen of Turkey on a balance of probabilities based on a certified copy of her passport included in the documents marked as Exhibit 1 on the consolidated list of documents in this matter. The determinative issue in this claim is credibility. I find the claim to-, to be a credible witness on a balance of probabilities. She testified in a very straight forward, very candid manner and credible manner without embellishment. Her oral testimony was consistent with her Basis of Claim and tes-, and the documentary evidence in support of her allegations. Most notably, a letter from her brother Segan, e-mails with respect to her father listing her as a missing person, photographs of the claimant playing basketball and other sports, photographs of the claimant’s mother in traditional headdress, photographs, a plethora of photographs of her former girlfriend [XXX], 519 documents in-, indicating that she has attended the community centre and on 519 Church Street, a letter from her present girlfriend, [XXX], [XXX], who was unable attend today because of an accident she had the day before and the-, there was a document indicating that she had received medication which we didn’t enter into as an Exhibit but I will make note of that, that I had seen the prescription for pain killers, also a bachelors degree from university and photographs of the claimant attending pride festivities, a call history with her father which-, with translation, various other childhood pictures and photographs with [XXX] as well and additional photographs confirming sexual orientation and her activities in the LGBT community, messages from dating apps and-, and a letter from her friend [XXX], I guess, I pronounced that again, get worse the second time, okay.

[7]       While the Panel finds that this plethora of documentation and documentary evidence is not demonstrative of sexual orientation on its own, it does corroborate the claimant’s alleged sexual orientation. Moreover, given that there were no major credibility issues, the Panel finds that these documents are relevant to corroborative ev-, evidence. The Panel ful- is, the Panel is mindful that the standard of proof as to the claimant’s sexual orientation is a balance of probabilities. On the bases of the claimant’s consistent testimony regarding her same sex partners and events that led to her claiming in Canada, the photos of her same sex partners and supporting letters from her friend and brother, the Panel finds that based on factors unique to this claimant’s case that she has established on a balance of probabilities that she is a lesbian. The Panel finds there is clear and convincing evidence on the record to rebut the presumption of state protection. This information is contained in documents in the current National Documentation Package for Turkey compiled by the Board’s research directorate and marked as Exhibit 3 on the consolidated list of documents in this matter.

[8]       In recent years, there has been an increase in aggressive behaviour and threats to the LGBT community by non-state actors including family, but especially from conservative religious groups. Documentary evidence reported in the country reports on human rights practices for 2018 from the United States Department of State and the bureau of democracy of Human Rights and Labour reports the following. While the law does not explicitly criminalize LGBT status or conduct, provisions of the law concerning offences against public morality, protection of the family and unnatural sexual behaviour sometimes served as a basis for abuse by police and discrimination by employers. Numerous LGBT organizations reported a heightened sense of vulnerability under the state of emergency as well as growing restrictions on their freedom of speech, assembly and association. During the year, the Ankara’s Governor’s office continued its indef-, indefinite ban in 2017 on all public GB-, LGBT events in the province assigning public safety concerns.

[9]       The criminal code does not include specific protections based on sexual orientation or gender identity. The laws allow for up to three years in prison for hate speech or injurious acts related to language, for race, nationality, colour, gender, disability, political opinion, philosophical beliefs, religion or sectarian differences but human rights groups criticize the law’s failure to include protections based on gender identity. As noted, it was sometimes used to restrict freedom of speech rather than to protect my-, minorities. Judges routinely apply the law to reduce the sentences of persons who killed LGBT individuals. Courts of Appeal upheld these verdicts based in part on the immoral nature of the victim. The report also indicates that the LGBT persons could not get a-, access to healthcare. The UK Home Report in item 1.14 and Section 224 also states that, while there’s some protection in the law and avenues of rej-, redress and practice operationally, these resources are not effective.

[10]     Section 244 states in particular that government does not effectively protect vulnerable LGBT persons from social abuse, discrimination or incidents of violence. Impunity for crimes against LGBT individuals continues to be reported as a problem and in practice, law enforcement officials and judiciary have taken a lenient attitude towards crimes committed against the LGBT persons. According to paragraphs 2,5,4 of this report, internal relocation will not be an option if it depends on the persons concealing their sexual orientation and or gender identity, in the proposed new location for fear of persecution. When taking all this evidence together the Panel finds, on a balance of probabilities, that the claimant would face a serious possibility of persecution if she was return to Turkey for her membership in a particular social group as a lesbian.

[11]     With respect to internal flight alternative, while states are presumed to be capable of protecting nationals, it is open for the claimant to rebut the presumption of protection with clear and convincing evidence that adequate protection would not reasonably be forthcoming. In this claim, the state is an agent of persecution and the objective evidence establishes that Turkey does not have effective mechanisms to protect citizens who are abused by police or security forces. In fact, on the contrary, the evidence indicates that police sometimes operate with impunity in Turkey.

[12]     The previous cited DOS report, items-, at item 2.1 states that in its executive summary, that Turkey suffers from official impunity and a weak administration of justice. Later in the same report it cites some instances of the disproportionate use of force by police against the LGBT community and police intimidation and harassment of the community. Having considered the claimant’s testimony and the documentary evidence about the role and conduct of the police in Turkey, the Panel finds that the claimant has rebutted the presumption of adequate state protection as the state is the agent of persecution and still remains in control of its territory. The Panel further finds there is no reasonable internal flight alternative within Turkey for the claimant in her circumstances. The claimant testified that she should not live-, that she could not live openly as a lesbian woman alone in any place in Turkey without experiencing a fear of harm at the hands of either her family and also persuasive, in that she would also face societal discrimination.

[13]     In this case the Panel agrees, the situation of homophobia and insufficient state protection exists across the country, accordingly the Panel also finds, on a balance of probabilities, that there is no safe or reasonable internal flight alternative for the claimant in Turkey. The Panel finds that there is a serious possibility that the claimant would be persecuted upon her return to Turkey, based on her sexual orientation. Hence, her claim is accepted. [XXX] is recognized as a Convention Refugee pursuant to Section 96 of the Immigration and Refugee Protection Act.

———- REASONS CONCLUDED ———-

Categories
All Countries Haiti

2019 RLLR 20

Citation: 2019 RLLR 20
Tribunal: Refugee Protection Division
Date of Decision: August 27, 2019
Panel: R. Riley
Counsel for the Claimant(s): Tina Hlimi  
Country: Haiti
RPD Number: TB8-20008
ATIP Number: A-2021-01124
ATIP Pages: 000137-000140

DECISION

[1]       MEMBER: These are the reasons in relation to this claim. The reasons given orally today will be rendered into writing and the transcript of the reasons will be sent to the claimant and his lawyer within a matter of weeks.

ALLEGATIONS:

[2]       The claimant alleges that he is a citizen of Haiti. The claimant says that he is targeted by armed bandits associated with [XXX] the Mayor of [XXX]. He states that he was attacked in [XXX] 2018. He was told by the attacker to stop inciting the youth against the mayor of [XXX] and he was also accused of being a member of the opposition.

[3]       He left Haiti in [XXX] of 2018, spent approximately six weeks in the United States and came to Canada to claim refugee protection. The claimant alleges that the Government of Haiti will not protect him and that there is no safe place for him anywhere in Haiti.

ANALYSIS:

IDENTITY:

[4]       The claimant provided his Haitian passport, a certified copy of which is found in Exhibit 1. The claimant also provided his birth certificate, a copy of which is found at page 7 at Exhibit 4 and his school records, copies of which are found at pages 2 to 6 of Exhibit 4.

[5]       The panel is satisfied as to the Haitian citizenship and the identity of this claimant.

CREDIBILITY:

[6]       The testimony of the claimant was straightforward and reasonably consistent. The claimant may have exaggerated the role of the person he feared having promoted the deputy mayor to the position of Mayor, nevertheless this was a minor matter, overall the panel detected no serious contradictions or omissions.

[7]       The claimant’s testimony that he promoted worthy deeds and thoughts in Haiti is worn out by music video he presented as well as his testimony. The claimant states that he and other students volunteered to clean up streets after it rained in [XXX]. The claimant was involved in donating books to an orphanage.

[8]       The music video showed the claimant performing a song with numerous images of young persons on the street and showing the classrooms where those young persons should be studying.

[9]       The video also demonstrated the claimant’s commitment to encouraging the youth of Haiti to go to school. All of these good deeds appear on the surface to be non-controversial.

[10]     The reality is that the claimant’s good intentions and his declarations were interpreted by the deputy mayor of [XXX] as being implicitly critical of the city administration. By engaging in the actions he did, the claimant was seen to be stating that the city administration was not up to doing it’s job.

[11]     This is clear case of attribution of political opinions where perhaps none were originally intended.

[12]     The panel accepts the claimant’s testimony that he could continue to write and perform songs about the social conditions in Haiti and that those in authority in Haiti could easily interpret such declarations as statements critical of those politicians who are not doing a good job for the benefit of other Haitians if he were to return to Haiti.

[13]     On a balance of probabilities, the testimony of the claimant is credible and trustworthy. Linked to Convention ground, the claimant’s declarations and good deeds were an indirect expression of a political opinion, those good deeds are illustrated by the photos found at Exhibit 5 of the evidence.

[14]     The claimant’s declarations and deeds were certainly interpreted as political opinions which were encountered to the opinions of those in power in [XXX].

[15]     The peaceful expression of that political opinion caused the claimant actual and prospective harm. Violence was committed against him, his life was threatened.

[16]     The panel is satisfied that this type of claim falls within the definition of a Convention refugee when he was under threat of persecution due to political opinion.

DOCUMENTARY EVIDENCE:

[17]     The panel has paid attention to the Medical Report found at pages 16 to 18 of Exhibit 4 as well as the police report found at page 19 of Exhibit 4. These documents are supportive of the claimant’s declaration that he was assaulted in late [XXX] 2018.

[18]     The claimant also provided support letters from various witnesses in Haiti, those letters are found at pages 9 to 11 of Exhibit 4 and they tend to corroborate the allegations of the claim, in short the documentary evidence supports the credibility of this claim.

STATE PROTECTION:

[19]     The agents of persecution belong to or are affiliated with a person in power namely the deputy mayor of the city of [XXX], the deputy mayor appears to have at her disposal a group of thugs who will engage in violent acts to punish those who are against her or who are perceived to be against her.

[20]     The documentary evidence indicates that the police in Haiti are known to be corruptible and not to be very good at protecting citizens from those in power.

[21]     The panel here is referring to the National Documentation Package. This claimant has no reasonable expectation of protection from persons in authority who are threatening him. It would not be reasonable for this claimant to seek State protection under these circumstances.

INTERNAL FLIGHT ALTERNATIVE:

[22]     The National Documentation Package also indicates that persons who are fleeing persecution within Haiti can easily be traced.

[23]     There is no satisfactory evidence that there would be, on a balance of probabilities, a safe place of refugee for this claimant within Haiti. The panel concludes that it would not be reasonable for this claimant to seek an internal flight alternative.

CONCLUSION:

[24]     Having considered all of the evidence, the panel determines that the claimant has discharged his burden of establishing that there is serious possibility of persecution if he were to return to Haiti. The panel therefore concludes that the claimant, [XXX], is a Convention refugee by reason of his perceived political opinion and the Division accepts his claim and I wish you the very best in future, sir.

[25]     CLAIMANT: Thank you.

[26]     MEMBER: Thank you counsel for you assistance.

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2019 RLLR 19

Citation: 2019 RLLR 19
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: Z. Perhan 
Counsel for the Claimant(s): Abba Chima 
Country: Nigeria
RPD Number: TB8-19949
ATIP Number: A-2021-01124
ATIP Pages: 000132-000136

DECISION

[1]       MEMBER: This is the decision for [XXX] File number TB8-19949. I have had an opportunity to consider your testimony and examine the evidence before me and I am ready to render my decision orally. You will receive an unedited transcript of this decision in the mail, your counsel will also get a copy so if you have any questions you are welcome to ask him.

[2]       You claim to be a citizen of Nigeria and you are claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I find that you are a Convention refugee for the following reasons.

[4]       The allegations of your claim can be found in the basis of claim form and its amended version in Exhibit 2 and 5. The details were elaborated today in your testimony.

[5]       In summary you fear persecution in Nigeria due to your sexual orientation as a member of a particular social group namely because you are a lesbian.

[6]       Based on the type of claim I have carefully considered chair person’s Guideline 9 relating to sexual orientation and gender identity and expression.

[7]       I find that your identity as a national of Nigeria has been established on a balance of probabilities both through your testimony and through the valid Nigerian passport which is presented, which was presented to us when you made your claim found in Exhibit 1. I find no reason to doubt the authenticity of that document.

[8]       In terms of your general credibility, I have found you to be a credible witness. You have testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.

[9]       I also find that there were no embellishments made within your testimony. Therefore I accept what you have alleged in support of your claim including the following.

[10]     As the central issue of your claim is sexual orientation I have put a lot of weight into your testimony about your past and current same sex partners in Canada.

[11]     You were able to present affidavits of support from your roommate, your former partner, your cousin, you current same sex partner in Exhibit 4. I find that these letters corroborated the key elements of your claim for protection namely your former and current same sex relationships in Canada as well as when your family members became aware of your sexual orientation and how it affected your decision to stay permanently in Canada.

[12]     You also presented a witness in this claim who you have alleged to be your current same sex partner. I know that she herself was apparently a successful refugee claimant on the issue of sexual orientation where you appeared as her witness.

[13]     She testified at today’s hearing for you, her general oral had almost no inconsistencies. Your partner seemed very nervous and stressed, when she was asked why she was unable to speak freely she admitted that she was very stressed for you and she was afraid to lose you in case the decision for your claim was negative. I find it is a reasonable explanation for situations like yours today.

[14]     But in general you seem to know your partner well and spend a lot of time with her. You celebrated holidays together, you have plans for the future and you talk freely about each other’s likes and dislikes as well as preferences.

[15]     You also detailed in your testimony your involvement in LGBTQ communities since coming to Canada. You presented attendance log and orientation training record from the 519 in exhibit 4. Though you did attend 519 only briefly but you explained that you felt this was more a place for newcomers and you have been in Canada for awhile. In addition you started working late shifts and were unable to make it to the meetings.

[16]     I find that your testimony about participation in the pride festivities over the past two years adds to the credibility of your allegations especially in regards to your motivation to do so based on your described past in Nigeria.

[17]     At the same time you have been living in Canada since 2007 either as a student or with a work permit. I understand the delay is not the determinative issue in any claim especially because you did have status in Canada up until the end of 2016.

[18]     However I do draw a negative inference from a two year delay in applying for refugee protection since you did not have status in Canada for the last two years.

[19]     I find however you provided a reasonable explanation as to why you did not seek refugee protection sooner. You did consult two lawyers during that time who helped you to try to extend your work visa in Canada twice but you were refused and the lawyers advised you to return to Nigeria to reapply from there.

[20]     Because of social, excuse me because of your sexual orientation you decided to remain in Canada without status up until 2018 when your current partner advised you to claim refugee protection.

[21]     Therefore I find that on a balance of probabilities you are a lesbian and that you have a subjective fear of returning to Nigeria.

[22]     I find that there is a link between what you fear and one of the five convention grounds. As I noted earlier the convention ground for you claim is particular social group, so I accept on a balance of probabilities that you are indeed a lesbian.

[23]     The overall objective evidence supports your claim for convention refugee protection based on the membership in a particular social group.

[24]     The national documentation package we have for Nigeria in Exhibit, in Exhibit 3 says that same sex relationships are criminalized in Nigeria. There is a same sex marriage prohibition act enacted in the months of January 2014 and it effectively renders illegal all forms of activity supporting or promoting LGBTQ rights.

[25]     According to item 2.1 in the NDP the government has formal charges for same sex relationships anyone who is convicted or aiding or assisting homosexual activities faces a punishment of ten years in prison. Anyone convicted of entering into a same sex marriage or civil union may be sentenced to up to fourteen years in prison.

[26]     Items 6.7 indicates that any sexual orientation that is not heterosexual is considered to be unnatural, demonic and immoral in Nigeria.

[27]     Based on these personal circumstances and the country conditions in Nigeria I find that you have an objective basis to your claim. You fear the police and state and authorities in Nigeria.

[28]     I find that it would be objectively unreasonable for you to seek the protection of the authorities in Nigeria in your particular set of circumstances. Adequate state protection would not be available to you as you fear the state.

[29]     With regards to possible viable internal flight alternatives in Nigeria, given the laws, the federal laws of Nigeria criminalizing same sex relations applicable, that they are applicable throughout Nigeria I find there is a serious possibility of persecution throughout Nigeria for you and therefore a viable internal flight alternative does not exist for you in Nigeria.

[30]     Having considered all the evidence I find here is a serious possibility that you would face persecution in Nigeria pursuant to Section 96 of the Immigration and Refugee Protection Act. I conclude that you are a Convention refugee based on your membership in a particular social group namely as a lesbian and I therefore accept your claim.

[31]     CLAIMANT: Thank you so much.

[32]     MEMBER: Thank you. Okay so this is the end.

[33]     COUNSEL: Thank you madam member.

[34]     CLAIMANT: Thank you

[35]     MEMBER: In your life in Canada now in the permanent status. Goodluck. I am going off the record.

———- REASONS CONCLUDED ———-

Categories
All Countries India

2019 RLLR 137

Citation: 2019 RLLR 137
Tribunal: Refugee Protection Division
Date of Decision: August 21, 2019
Panel: A. Green
Counsel for the Claimant(s): James Gildiner
Country: India
RPD Number: TB8-24395
ATIP Number: A-2021-00256
ATIP Pages: 0000112-000116

DECISION

[1]       MEMBER: I’ve had an opportunity to consider your testimony and the all the other evidence before me and I am now rendering my oral decision. You will be provided with a transcript of my decision which I reserve the right to edit.

[2]       The claimant [XXX] claim is a citizen of India who seeks refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.

[3]       As I stated I’ve not only considered your testimony and the other evidence before me I’ve also considered the chair person’s guideline 9 with regards to the proceedings before the Immigration and Refugee board involving sexual orientation and gender identity and expression.

[4]       I’ve also considered the information on the situation in your country of origin India found in the boards national documentation package as well as in the information provided by counsel in Exhibit 5.

[5]       The details of the allegation on which you relying can be found in your basis of claim form Exhibit 2. In summary the claimant is a twenty two year old gay man who was born in India on the [XXX] of [XXX]. The claimant hails from a high cast family in India and social standing is important.

[6]       Growing up the claimant experienced homophobia from his family and society. He wrote in his narrative and testified about the fact that he was constantly bullied. He also wrote about the fact that he was admonished for being too feminine. His family denied his sexuality, they tried to change the way he walked and talked, limited his hand jesters and he also expressed that his father still thinks there’s something wrong with him mentally and physically.

[7]       The claimant was also verbally, physically and sexually abused and harassed since a young age because of his sexual orientation.

[8]       On [XXX] 2015 the claimant came to Canada to study at the [XXX]. He has not returned to India since that time.

[9]       In 2016 the claimant met a man with whom he had a relationship and eventually married. The relationship later broke down but during that relationship the claimant developed the courage to come out to his parents about his sexual orientation. They threatened to cut him off financially and eventually did which prevented the claimant from pursuing his studies.

[10]     In 2018 the claimant learned from a friend about the refugee protection process and filed a refugee claim at the end of September 2018.

[11]     On the basis of your membership in a particular social group that is your status as a gay man. The panel finds that you have established that you face a serious possibility of persecution for convention ground pursuant to Section 96 of the Immigration and Refugee Protection Act.

[12]     I find that the treatment that you experienced as a gay man in India including family rejection, harassment and social ostracism cumulatively amounts to persecution.

[13]     In terms of your personal identity I find on a balance of probabilities that you are a national of India, this was established by your sworn testimony and a certified copy of your passport issued by the Republic of India found in Exhibit 1.

[14]     In regards to your sexual orientation I find that you have established your profile as a gay man. You gave extremely credible testimony regarding this. I believe your story regarding your experiences in India with your family and with society in general. You testified in a straightforward manner, you answered questions without exaggeration or embellishment and your oral testimony was consistent with the allegations provided in your basis of claim form narrative and consistent with the information on the situation in your country of origin.

[15]     In regards to subjective fear I do note that there was a delay in claiming is somewhat lengthy delay considering that you came to Canada in 2015 and only filed your claim in 2018. I do note however that you had a valid student permit at the time that you filed your claim and you did provide an explanation for the delay which I accept and so I draw no negative inference.

[16]     In regards to the objective basis for your fear Item 2.1 of the national documentation package for India the latest version dated March 2019 indicates that lesbian, gay, bisexual, transgender and intersex persons faced physical attacks, rape and blackmailing in India. LGBTI groups reported they face widespread social discrimination and violence and that in fact some police committed crimes against LGBTI persons and use the threat of arrest to coerce victims not to report the incidents. This is consistent with the information found in Item 6.1 of the national documentation package as well as the information provided by your counsel in Exhibit 5.

[17]     I do note that consistent with the information provided in September of 2018 same sex sexual acts were decriminalized in India, however neither same sex marriages nor civil unions are recognized in the country.

[18]     6.1 states that in spite of the fact that same sex relations have been decriminalized there’s still a need for acceptance, many people still have the mentality that homosexuality is wrong. The change in law does not mean that people in the LGBTI community are starting to disclose their sexuality especially to their parents because this is still a problem in India.

[19]     In regards to the fact that violence and discrimination exist it indicates that in spite of the fact that decriminalization has taken place of same sex relations some sexual and gender minorities still face violence and harassment in India. This is also consistent as I said with the information provided by your counsel in Exhibit 5 and its also consistent very much with your evidence as to what you believe would happen to you in spite of the fact that same sex relations have now been decriminalized in India.

[20]     I conclude based on my review of the documentary evidence that your fear of persecution in India due to your sexual orientation has an objective basis.

[21]     In regards to whether or not you would receive adequate state protection I take into consideration Guideline 9 which says that even though there have been small steps in the law it doesn’t mean that you would have adequate state protection in your country of origin. In fact Item 2.1 yes indicates that even though activists welcomed the verdict in of September 2018 they believe it is still too early to determine how the verdict would translate into social acceptance or into safe and equal opportunities for LGBTI persons.

[22]     Also Item 6.1 indicates that a report from 2017 states that obstacles for justice (ph) for sexual minorities in India is still an issue because of the attitude and behaviour of the police, viewed as one of the biggest barriers to LGBTI persons accessing justice in India. It indicates that there is violence, abuse and harassment suffered at the hands of the police in India and that in several cases the police have refused to file complaints submitted by members of the LGBTI community due to bias or stereotypes.

[23]     This is also consistent as I stated before with Item 2.1 which indicates that some police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents.

[24]     Based on my review of the documentary evidence I find that adequate state protection would not be reasonably forthcoming to you in India and that you have rebutted the presumption of state protection. Likewise I’ve considered the documentary evidence when looking at internal flight alternative.

[25]     I’ve also considered your own testimony where you expressed that as someone who’s not considered the standard heterosexual male and as someone who bend the gender quite often and in the manner in which you express yourself you would not be accepted in Indian society and so I’ve taken that into consideration and I find that you have no viable internal flight alternative that you would not be safe in any area of the country because you would not be able to live openly as a gay man without fear of harassment and violence.

[26]     So in conclusion I find that you have established the presence of subjective fear, that you do have an objective basis of that fear, that you face a serious possibility of persecution in India.  I therefore accept your claim pursuant to Section 96 of the Immigration and Refugee Protection Act. Good luck to you.

———- REASONS CONCLUDED ———-

Categories
All Countries Barbados

2019 RLLR 136

Citation: 2019 RLLR 136
Tribunal: Refugee Protection Division
Date of Decision: September 12, 2019
Panel: Melinda Gayda
Counsel for the Claimant(s): Adrienne Smith
Country: Barbados
RPD Number: TB8-24140
ATIP Number: A-2021-00256
ATIP Pages: 0000106-000111

DECISION

[1]       MEMBER: This is the decision in the claim for refugee protection of [XXX]. The file number is TB8-24140.

CLAIMANT

[2]       The claimant asked the Member for letting her sister into le hearing room

MEMBER:

[3]       Yes, absolutely. The counsel’s going st- ask your sister to come in.

CLAIMANT:

[4]       Thank you.

[5]       MEMBER: She can be the support person for you. I know it’s a, it’s a big day and it’s a big decision.

[6]       So, you are claiming to be a citizen of Barbados and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

[7]       I’ve considered your testimony and the other evidence in your claim. And I’m giving you my decision orally. And that is to accept your claim. In assessing your claim, I have applied the Chairperson’s Guidelines. Guideline 9 on sexual orientation and gender identity and expression. I find that you are a convention refugee pursuant to Section 96 of the Act on the grounds of your membership in a particular social group as a bi-sexual woman. I find that you would face a serious possibility of persecution in the future if you returned to Barbados.

[8]       Your allegations are set out in detail in your Basis of Claim form. In summary you allege a fear of acts of violence, harassment and hostility as well as pervasive discrimination from the community because of your sexual orientation in, as a bi-sexual woman in the Bahamas, I’m sorry, in Barbados. You allege that if you return to Barbados, you will face stigma, social exclusion and discrimination in many aspects of life and from the community. And this would include verbal insults and possible physical violence. That you could not live openly and freely as a bi-sexual woman in Barbados without experiencing this kind of harassment threats and discrimination.

[9]       You allege that the state authorities such as the police are also homophobic and could not be depended upon to offer you protection in situations where you may be threatened with or experience violence on account of your sexual orientation. And you say that there’s no safe place for you to live anywhere in Barbados.

[10]     Your identity. I find that your personal and national identity as a citizen of Barbados has been established on a balance of probabilities by your testimony as well as the supporting documentation filed in Exhibit I. Mainly the certified true copy of your Barbadian passport that was seized by the Immigration Refugee Citizenship Canada officers, when you started your refugee claim.

[11]     The nexus in this case, the link between what you fear and the refugee convention is your membership in a particular social group as a bi-sexual woman. Therefore, I’ve accessed, assessed your claim under Section 96.

[12]     Moving on to your credibility. In terms of your general credibility, I found you to be a credible witness. Your testimony was straight forward and consistent with your Basis of Claim form and other forms. And there were no inconsistencies or omissions that were relevant or went to the core of your claim. You provided spontaneous details of how you came to understand that you were attracted to women. And that you are, and that you came to the understanding that you were bi-sexual. You also provided details of your past same sex relationships and the discriminatory and threatening incidents that you experienced m Barbados. These were details that I would expect of someone who had lived the experiences described.

[13]     For someone as yourself who has grown up in a society such as Barbados wh-,which is the country evidence tells us that being on the LGBT spectrum there is treated with scorn and ridicule and given the strong influence of religion in a small country, being LGBT is often viewed as being sinful. I found your testimony to be credible. You testified without any obvious embellishment and in a fluid immediate way. You also provided corroborating documentation about your sexual orientation. Letters from your friends who knew of your sexual orientation at this moment now in Canada as well as tho-, as well as those who knew you in Barbados as being bi-sexual and for having experienced problems there because of it.

[14]     You also provided, provided letters from your sisters, one sister in Canada who identifies as a lesbian and whose refugee claim was accepted in 2014. And a letter from a sister in Barbados who provided details about your family situation and learning about your sexual orientation and how she has seen the change in you on her visit to Canada. And she’s noted that you were no longer having to hide who you are. And she sees you now as someone who is confident and comfortable with herself.

[15]     You also provided a letter from the youth resource worker at Supporting Our Youth, S-O-Y, SOY that provides the Black Queer Youth program, which you are attending. You also provided photographs of you with past girlfriends in Barbados and you spoke knowledgably and credibly about the circumstances of these photos and your feelings for these women. How it was when you dated them and why you broke up with them.

[16]     You responded with reasonable explanations and plausible details to my questions for you about these corroborating documents. And as I’ve mentioned these documents go to the core aspects of your claim namely your identification as a bi-sexual woman and the fact that you’ve lived in and been in same sex relationships in the past.

[17]     Your sister [XXX] was here and she is here and was willing to testify as a witness on your behalf. However, given your credible testimony and other corroborating evidence, I did not, I determined I didn’t need to hear from her, as I found that you’ve established your core allegations on a balance of probabilities.

[18]     I believe you, that you’ve been attracted to both men and women in the past. And you’ve had intimate relationships with both. I believe that the incident that, what you’ve described as incidents of past harassment, threatened violence and discrimination and you’ve experienced that due to your bi-sexuality and the perception of others in the Barbadian community that you are a bi-sexual.

[19]     You testified that you would like to, bl-, live openly and freely and be free to date both men and women in the future. And that for you it depends on the personality of the person that you meet.  Therefore, I find you’ve established your core allegations of being a bi-sexual woman and fearing persecution in the future in Barbados.

[20]     Moving to subjective fear. I’ve considered that and I find that you’ve established that you’re subjectively fearful of returning to Barbados. Prior to your recent arrival in Canada on [XXX] 2018 and claiming refugee status shortly thereafter, you visited Canada in [XXX] 2017 for approximately 2-3 weeks. And you had came, you came on that trip with your mother, sister and your sister’s friend to visit your sister in Canada, [XXX]. Who now resides here since her refugee claim was accepted in 2014. And then you returned to Barbados on [XXX], 2017.

[21]     I asked you why you returned to Barbados at that time, knowing how you’d had to live there hiding your sexual orientation and knowing how society treated people who were on the LGBT spectrum. And why you didn’t make a refugee claim in Canada when you were here for that first time. You responded that you had travelled with your mother and she was very controlling, protective and strict. You didn’t want to upset her by staying in Canada and you believed that she would possibly blame your sister here, if you remained in Canada.

[22]     You described that your sister’s relationship with your mother was already fairly fragile due to your mother learning that she was a lesbian. And you didn’t want to come out to your mother as you knew that she had already suspected you were gay and had said in the past that she couldn’t deal with having two gay children. This testimony, testimony was consistent with your Basis of Claim form.

[23]     You testified that you went back to Barbados at that time and then you actually slipped into depression again and you didn’t feel like you were supposed to be living there anymore. You dated a man who was physically violent with you, when he learned that you had dated girls in high school and had been outed by classmates for being gay. He told you that he didn’t want to be known as a guy who dated a girl who had dated girls. You spoke with your sister in the spring of 2018 and she encouraged you to come to Canada to be safe and free and make a refugee claim. She offered her financial support for you to make the journey and have a place to stay here. So, you came here in [XXX] 2018 and shortly, and shortly thereafter made your refugee claim.

[24]     I have found your cresti-, testimony to be credible and you returned for, to Barbados from your first visit to Canada before your subsequent return back to Canada to file your refugee claim has been reasonably explained. Therefore, I find you have a subjective, a well-founded subjective fear of persecution in Barbados.

[25]     Moving to the objective basis of your risk of persecution. According to the documentary evidence in the National Documentation Package, Exhibit 3, LGBT persons in Barbados face widespread and social stigma, bullying, discrimination, harassment and at times violence. Particularly within their own families. The Item 2.1 is the United States Depart of States report on human rights practices in Barbados. And for the year 2018, it notes that the law criminalizes consensual same sexual activity in Barbados between adults with penalties up to life imprisonment. And there were not reports though of the law being enforced during the year.

[26]     The law in Barbados does not prohibit discrimination against a person based on real or perceived sexual orientation or gender identity in areas such as employment, housing, education or health care. Civil society groups reported that LGBT persons faced discrimination in these areas in Barbados and that police disapproval and societal discrimination against LGBT persons made them more vulnerable to threats, crime and destruction of property.

[27]     Now, the Federal Court has held and it’s set out in the SOGIE guidelines, in particular, paragraph 8.5.1.1, that being forced to conceal ones sexual orientation to avoid harm is, is itself persecutory as it constitutes a serious interference with a fundamental human right. Many LGBT persons in Barbados are unfortunately forced to conceal their sexual orientation to avoid societal discrimination, widested-, widespread stigma, bullying and harassment, as well at times violence. I find that you would, you, that if you were forced to do this as well, that such expectation interferes with your fundamental human rights. Therefore, I find your allegations to be objectively well-founded.

[28]     Moving to state protection. I find that you have rebutted the presumption of state protection with clear and convincing evidence, that adequate state protection would not be available to you were you to seek it in Barbados. You testified that in your view, based on what you had heard in the media and from others in the community that the police were very homophobic in Barbados and that they have a reputation for turning a blind eye when gay people need help.

[29]     The objective documentary evidence in our National Documentation Package at Item 6.1 a response to information request.  Indicates that most members of the LGBT community do not report matters to the police out of fear of negative repercussions or facing ridicule and that LGBT individuals in Barbados have faced condemnation by police officers. And a UN report from 6 years ago as noted in that RIR, response to information request from 2012, noting that police were denounced as discriminatory by, in this UN report, in their treatment of victims who are from the LGBT community. In Barbados as I’ve already noted, same sex relations continue to be criminalized and while not prosecutions appear to have occurred under the law for quite a number of years, I find that having such a law further legitim- legitimizes discriminatory and oppressive treatment towards LGBT individuals.

[30]     Also, there’s some documentary evidence that indicates the state of Barbados does not have laws in place that prohibit this, that prohibit discrimination on the basis of sexual orientation. That’s found in Item 2.1, page 9, as well as Item 6.2 a report entitled Criminalization of Homosexuality a report from March 2019 page 4. It is reported that it is common for LGBT persons to face discrimination in housing and employment. Therefore, I find the state fuels and allows discrimination to be accepted by such laws that criminalizes same sex, she-, same sex activity as well not having laws in place to prohibit discrimination on the basis of one’s sexual orientation.

[31]     Your experiences in Barbados are consistent with this evidence. You faced homophobic remarks from a past, past employer and also bullying and threatening behaviour from other students while attending school. You felt you could not go to the school administration because you were fearful they would tell your parents but also because the school admiss-, administration you did not feel would, would offer you any assistance. This is found in the documentary evidence that there’s no human rights or anti-discrimin-, discrimination laws or processes in place that you could have turned to. You felt demeaned and that you had to hide who you were to be safe and not face harm.

[32]     In light of this evidence, I find you’ve rebutted the presumption of state protection based on your personal circumstances as well as the objective country documentation. I find that adequate state protection would not be available to you in Barbados. I’ve considered whether a viable internal flight alternative exists for you in Barbados. Barbados is a very small country and there’s no evidence that the societal, discriminatory and homophobic attitudes are localized or that there would be any place where you could live openly and safely as a bisexual woman without experiencing such discrimination.

[33]     You testified about the problems you face and that moreover that the law criminalizing same sex relations is one that applies to the entire country. And it’s a way that the state as I’ve said perpetuates the stigma and hostility of the public towards LGBT individuals. I therefore find that there’s no viable internal flight alternative to you in Barbados.

CONCLUSION

[34]     So, in conclusion and based on the totality of the evidence, I conclude that you are a Convention refugee pursuant to Section 96 if the Act and I therefore, accept your claim.

[35]     CLAIMANT: Thank you

[36]     MEMBER: Thank you. We are concluded.

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Algeria All Countries

2019 RLLR 135

Citation: 2019 RLLR 135
Tribunal: Refugee Protection Division
Date of Decision: October 28, 2019
Panel: Diane Hitayezu-Fall
Counsel for the Claimant(s): Ameena Sultan
Country: Algeria
RPD Number: TB8-21381
ATIP Number: A-2021-00256
ATIP Pages: 0000102-000105

[1]       MEMBER: This is the decision for [XXX] and the file number is TB8-21381.

[2]       I have considered and applied the Chairperson’s Guideline 9 with respect to Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

[3]       I have considered your testimony and the other evidence I have in front of me and I have reached a decision. I find that you are a Convention refugee.

[4]       You are claiming to be a citizen of Algeria and you are claiming refugee protection under s. 96 and s. 97 of the Immigration and Refugee Protection Act.

[5]       You allege that you are a citizen of Algeria. You allege a fear of persecution in Algeria based on your sexual orientation. You identify as bisexual. In your words, you say that you identify as a man who has sex with men. You also alleged a fear of persecution because you do not believe in anything. You do not believe in Islam. And this puts you at risk in Algeria. You allege that if you return, the State or the police will not protect you because you are not a believer in Islam and you will not be protected because of your sexual orientation. You fear the police and the members of the public in general.

[6]       In terms of identity, I find your personal identity as a citizen of Algeria has been established by your testimony and your Algerian passport. I have a certified copy in Exhibit 1. So, I considered those, the documents, the passport and your testimony, and I find, on a balance of probabilities, that your personal identity and your national identity have been established and the country of reference has also been established as being Algeria.

[7]       I assessed your – the credibility also and I find that your testimony was straightforward and it was in keeping with the information in your basis of claim and there were no significant inconsistencies or omissions that went to the core of your claim. In general, I have found you to be a credible witness. So, therefore I accept what you have alleged in your oral testimony and in your Basis of Claim. The Basis of Claim is in Exhibit 2.

[8]       In support of your claim, you provided documentary evidence, confirming that some of your family members are aware of your sexual orientation and that you have discussed your sexual orientation with your doctor in Canada, that you have been attending [XXX]. And that’s who you identify as, a bisexual man or a man who likes to have sex with men.

[9]       These documents have been entered as exhibits in Exhibits 6 and 7. I note your brother [XXX] (ph.) wrote a letter saying that he knows about your sexual orientation, and [XXX] (ph.) from [XXX] wrote a letter confirming that you have been attending programmes at [XXX], an LGBTQ organisation in Toronto. And Julia tell us in her letter that you have shared your experiences as a bisexual man in Algeria with her and you have shared your experiences with the group at [XXX].

[10]     You have provided photograph of your current boyfriend in Canada and you have provided proof that you are active on dating sites. You showed me your profile on Bazoo, and I was able to verify, to confirm, your relationship with the person you showed me on pictures.

[11]     I note that I was concerned by the fact that you did not bring your boyfriend as a witness or I have not received any support letter from him. You explained that your relationship, although it is a romantic relationship, it’s still new and you were shy to ask.

[12]     So, after listening to your testimony, I find that your testimony and the documentary evidence establish, on a balance of probabilities, that you are a man who have [sic] sex with other men. So, I accept what you have alleged in your Basis of Claim.

[13]     I note that your claim was based on religious beliefs and sexual orientation. I assessed the aspect of sexual orientation; and as it disposes of your claim, I will not address the religious aspect in my decision.

[14]     So, I find that there is a link between what you fear and one of the five Convention grounds, specifically membership in a particular social group, gay men in Algeria.

[15]     I verified the objective evidence to see if your subjective fear was founded and I noted that the objective documentation supports your allegations, that individuals in your circumstances face persecution and discrimination in Algeria and they are subjected to violence, are shamed, and they risk to be arrested and sent to prison.

[16]     In the National Documentation Package in Exhibit 3, the National Package for Algeria, Document 6.1, it says that homosexual activities are criminalised. It says that Algeria has been rejecting recommendation to eliminate discrimination against LGBTQ community. And the same document and Document 2.1, the DoS Report for 2017-2018, this reports (inaudible) that people continue to be arrested for engaging in same-sex sexual activities. LGBTQ people suffer abuses from the police and they are discriminated against in health and employment. And Document 6.2, Response to Information Request, contains similar information, same information as in Documents 6.1 and 2.1 that same-sex activities are criminalised.

[17]     I note that your counsel has provided some evidence in Exhibit 5 and some articles were published in 2019 and they talk about LGBTQ people who were killed in Algeria.

[18]     So, I considered this objective evidence in conjunction with your allegations that I find to be credible and I find that the fear you expressed has an objective basis.

[19]     Therefore, I find that you have a well-founded fear of persecution.

[20]     I looked at State protection and I find that State protection would not be available to you, were you to seek it Algeria.

[21]     I refer to the objective documentary evidence, Document 6.2, the Response to Information Request. It contains information that victims, homosexual victims never report homophobic violence, as they are afraid of Algerian authorities. That was said by somebody who said “never.” But it says that acts of violence are not reported due to fear of the laws. And the same Response to Information Request contains information of incidents where people were caught and charged and were sentenced, were sentenced to spend time in jail and were fined. For instance, one was required to pay 20,000 dinars. And the same Response of Information [sic], talks about two young men, homosexual, who posted their relationship on Facebook and they were arrested and were sent to pre-trial detention.

[22]     So, and I find that as the State, the Government of Algeria and the police (inaudible) as homosexual sexual activities are criminalised in Algeria, it would not be reasonable for you to seek protection from the police or from any other authority.

[23]     So, in light of the objective country documentary [sic], I find that you have rebutted the presumption of State protection. And based on your personal circumstances as well as the objective documentation, I find that adequate State protection will not be available to you in Algeria.

[24]     I have also considered whether a viable internal flight alternative exists for you in Algeria. note that the country documentation indicates that the situation for individuals in your circumstances is the same throughout the country. The country documentation indicates that the attitude towards LGBTQ in Algeria is the same throughout Algeria; and SOGIT, the Guideline 9, paragraph 8.7.1 states that it is established in law that an internal flight alternative is not viable if an individual with a diverse sexual orientation or gender identity must hide their sexual orientation in order to live in that location.

[25]     So, I therefore find that you face serious possibility of persecution throughout Algeria based on your sexual orientation; and, as such, I find there is no viable internal flight alternative for you in Algeria.

[26]     So, having considered the totality of the evidence before me, I find you to be a Convention refugee. You have established that there is a serious possibility of persecution, based on your sexual orientation, if you were to return to Algeria.

[27]     I accept your claim.

DECISION CONCLUDED