Citation: 2020 RLLR 73
Tribunal: Refugee Protection Division
Date of Decision: February 12, 2020
Panel: M. Vega
Counsel for the Claimant(s): Mary E Boyce
Country: Antigua and Barbuda
RPD Number: TB8-16407
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000087-000091
DECISION
[1] MEMBER: Okay, this is the decision with respect to the claimant [XXX], this is File number TB5-16407 and the claimant is… I’m rendering this decision now orally to you having heard all the evidence today [XXX].
[2] You claim to be a citizen of Antigua and Barbuda and you have claimed refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.
[3] In assessing this claim I have considered and I have kept in mind the chair person’s guideline Number 9 which is entitled, which is titled proceedings before the Immigration and Refugee Board involving sexual orientation and gender identity and expression or we call it SOGI as well.
[4] I find [XXX] that you are a Convention refugee for the following reasons. The allegations are found in your basis of claim form.
[5] I won’t repeat them all but just to summarize your basis of claim form; you knew from the age of approximately [XXX] that you were a lesbian, you felt that you were one and you come from a strict Christian family where your mother is a Pentecostal [XXX] and the life in the Christian church at your mother’ s church was very important to your family and it was significantly dominated, your life was dominated by the church you felt.
[6] You father was not as harsh as your mother but both your parents because of their sermons you were aware of how they felt about homosexuality and that how they perceive it to be wrong.
[7] During school you dated men and you were, you also dated [XXX](ph) who you later married. You dated him for three years and then you married him in 2008. You subsequently divorced [XXX](ph) in [XXX] of 2012.
[8] You did not come out to him as being a lesbian woman, however he was aware of what you had told him about when you and your, you and your cousin as a [XXX] year olds you experimented a bit with each other sexually and stimulated each other over two years.
[9] He was aware of this and you felt that this was sort of might be a phase in your life, so you had told him the story thinking it might bring you closer together and he later would use that to hurt you and remind you that if you were to, often out with your girlfriends and he would ask you if you repeating your childish behaviour and you knew what that meant.
[10] You also, you were keeping your sexual orientation secret while you were living in Antigua and Barbuda after you had divorced him. You did have some relationships and or a casual relationship but you had a more meaningful one. However this ended not very well and the result was the threat that she would contact your family and inform them and that would be detrimental to your mother’s [XXX] within the church.
[11] Her reputation as [XXX], as a Christian [XXX] as well as to, given that Antigua is so small and how gossip goes there, it would be detrimental to your entire family as well as to yourself. So shortly after that threat you decided to leave the island and come to Canada and then you came to Canada in [XXX] of 2018.
[12] While in Canada you have felt freedom and as able to express yourself as a lesbian woman you later met your current partner [XXX] and you’ve had a relationship since. You’ve met her family and you stayed with her family, travelled with her family and had vacations with them and you feel very welcomed by them.
[13] So that brings us to this hearing and first of all I would like start by, with the issue of your identity. This issue I’ve considered and the material that I have in Exhibit 1 which is a certified true copy of your passport from Antigua and Barbuda. It’s clear to me on a balance of probabilities that you are a citizen of that country therefore I find that your national identity has been established.
[14] With respect to your sexual identity as this is a sexual orientation claim. I find that that has been established by your testimony, by all the evidence here today.
[15] In that regard you have answered an abundance of questions that I have asked and you have indicated that you identify as a lesbian woman and despite you did have a relationship with a man to whom you were married and at the time, you at the time felt that you might be bisexual. However that is not how you identified today.
[16] From your answers I found you to be, that you answered in a very straightforward manner. You were very willing to answer all questions that I asked.
[17] You were spontaneous in your answers and therefore I found you to be a credible witness and because I find that you are a credible witness I can accept your allegations and therefore I believe that you are a lesbian woman and in an exclusive relationship with [XXX](ph).
[18] So with respect to the issue of the nexus in this case is membership in a particular social group under sexual orientation and that you are a bisexual woman okay?
[19] Now the country documents, the preponderance of them in my package of Exhibit 3 clearly indicates to me that the, that there would be problems for you if you were to return to Antigua and Barbuda.
[20] While there wasn’t at the present time from your testimony you’ve indicated that you do not believe [XXX](ph) has ousted you to your family. If you were to live there and the test I apply is a forward looking one so it looks at if you were to go not what has happened to you in the past but more so in the future if you were to go there.
[21] With the current laws the way they are there I find that you would not be able to live your life as you have been expressing yourself sexually or as a lesbian woman and feel the way you have because you would have to be worried.
[22] Exhibits 3 Item 6.1 indicates that in and this is a response to information request, counsel as you ‘re aware 6.1 is the response to information request ATG104715.E and it states there that several sources indicate that sexual acts between same sex couples are illegal for both men and women in Antigua and Barbuda and the section that would likely apply would be under Article 15 which is considered under serious indecency.
[23] So there could be under serious indecency there could be jail terms and therefore even though the material does indicate that these laws are not actively implemented despite that I’d like to from the guidelines under 8.6.4 it states there the existence of laws criminalizing non conforming sexual orientations, sexual behaviours or gender identities or expressions and the enforcement of these laws by the state may be evidence that state protection is inadequate.
[24] Even if irregularly enforced the criminalization of the existence or behaviours of individuals with diverse SOGI 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.
[25] So and the documentary material the same Item 6.1 does indicate that the situation is getting better. Nonetheless it still is not sufficient at the present time in my opinion.
[26] There… an LGBT rights group which is called Meeting Emotional and Social Needs Holistically or MESH it’s called, who is and this person spoke to the research director he’s a representative of the Antigua based group and he’s also an openly gay police officer.
[27] He said that although the laws are generally not pursued LGBT people who are caught engaging in sexual activity in a public place are sometimes detained for a couple of days and he’s provided a lot of useful information but he also says he notes that with respect to the protection by the state that their organization encourages individuals to report cases of threats and violence against LGBT people to the police.
[28] However he also noted that many LGBT people do not report violence to the police for multiple reasons such as fear of revealing their sexual orientation, fear of stigma and discrimination or a fear due to past experience with police or hearing of experiences of other LGBT people.
[29] The materials also go on to speak about one case in which a police officer physically assaulted an LGBT person, however when this person went to report and that officer was, somebody reported him and he lost his job.
[30] Nevertheless there is plenty of material that indicates that the people are do fear for violence and therefore they do not report to the police because then sometimes it’s not always the police who are the perpetrators but the police can be or they can discriminate against the person.
[31] There was also a case where an Antiguan media source called Carrie Barenna(ph) quoted someone who said their LGBT friend was chased out of a police station when trying to report an incident to the police. So the MESH representative said that treatment depends on the police officer at the desk and he noted that there is still a lot of stigma and discrimination towards LGBT people by the police.
[32] So this is a little too much that in my opinion, given the evidence I do not believe there’s adequate state protection for you should you if you wanted to come out, if you were living there and if you needed help by the police if anyone were to in anyway threaten you or harm you or try to because I don’t believe there’s adequate state protection for you because the police in this case your fearful of the law because it is illegal to openly be in or demonstrate openly that you are in a relationship or…
[33] So then there’s also the issue of internal flight alternative that we have to look at and I didn’t raise it as an issue because it’s too small an island and it’s the same law throughout the entire country. So or even Barbuda it’s still too small ninety five thousand people.
[34] It’s a small location so I do not find that there would be a viable internal flight alternative available to you if you were to try to hide in another part of the island should you be found out either by, the community where you were living.
[35] So there’s let me just…therefore I find that you have discharged the burden of the presumption of state protection in your particular case with your evidence and therefore I feel that you would face a serious possibility of persecution because of your sexual orientation as a lesbian woman throughout the entire of Antigua and Barbuda and therefore I conclude on all the evidence in this case that [XXX] that you are a Convention refugee and I therefore accept your claim. Do you understand?
[36] CLAIMANT: Thank you I do.
[37] MEMBER: You’re very welcome and this hearing is now concluded and good day to everyone thanks.
———- REASONS CONCLUDED ———-