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2019 RLLR 144

Citation: 2019 RLLR 144
Tribunal: Refugee Protection Division
Date of Decision: March 26, 2019
Panel: S. Bardai
Counsel for the Claimant(s): Adrienne C Smith
Country: Indonesia 
RPD Number: TB6-03152
ATIP Number: A-2021-00256
ATIP Pages: 0000158-000163


ACO RECOMMENDATION

[1]        The claimants’ allegations are as set out in their Basis of Claim Forms (BOCs ).1 In summary, they allege a fear of persecution at the hands of the Indonesian Government and society on the basis of their sexual orientation and HIV-positive status. The claimants state that they were in a same-sex relationship prior to their arrival in Canada and that on [XXX] they married each other in Toronto, Ontario.

[2]       The original hearing of this claim was held on February 7, 2018 where the claim was reserved for a decision. The Member recused herself from the claim March 1, 2018 and was therefore unable to render a final decision on the claim. On February 12, 2019 the RPD sent a letter to Counsel and the Claimants, giving them the option to conduct a new hearing or assign a new Panel to render a decision, relying on the claimant’s testimony from the February 7, 2018 hearing and the documents already on file. Counsel responded on February 12, 2019, requesting that the RPO make a decision based on the evidence provided at the original RPD hearing. She has also made an application for additional post-hearing disclosure pursuant to RPD Rule 50. This disclosure was accepted and added as Exhibit 10.

ANALYSIS

Identity

[3]       With respect to identity, the claimants have submitted their Indonesian passports to Immigration, Refugees and Citizenship Canada (IRCC) officials upon making their claim.2

[4]       In support of their sexual identity, the claimants have provided a substantial amount of evidence including their Ontario marriage license, certificate of marriage, personal photographs and letters of support from friends in Indonesia, in addition to their testimony.3

[5]       In support of their identity as HIV-positive individuals, the claimants have provided a letter from [XXX] of Regent Park Community Health Centre who states that both Mr. [XXX] and Mr. [XXX] are infected with HIV and that they are both currently on medication to treat the infection. In further support, they have provided letters of support from the Toronto People with AIDS Foundation, Asian Community Aids Services and from [XXX] a Public Health Nurse with Toronto Public Health.4

Credibility

[6]       I have reviewed the claimant’s evidence including their BOCs, Port of Entry notes, the documentation provided in support of their claim by counsel and the recording of the hearing held on February 7, 2018. I have also reviewed country condition documentation contained in the Immigration and Refugee Board of Canada’s National Documentation Package (NDP)5 for Indonesia. The claimants’ evidence was detailed, consistent and there did not appear to be any serious credibility issues that arose from the documents in the file on a balance of probabilities. Their testimony at the hearing appeared sincere and credible. The Member at the original hearing accepted their profile as individuals in a same-sex relationship and there does not appear to be any evidence before me to the contrary.

Well-founded Fear of Persecution on a Convention ground:

Race

Nationality

Religion

X         Particular Social Group

Political Opinion

[7]       The documentary evidence supports the allegations noted by the claimants. It is well documented that while homosexuality is not criminalized in Indonesia, the rights of LGBT groups have come under attack in 2016 which stemmed from a comment made by the Minister of Higher Education, Muhammad Nasir on January 24, 2016 about how he wanted to ban LGBT student organizations from university campuses.” Since this comment, mass religious groups and NGOs joined the rhetoric; psychiatrists proclaimed same-sex sexual orientation and transgender identities as ¬∑¬∑mental illnesses”; the country’ s largest Muslim organization called for criminalization of LGBT behaviors and activism and forced “rehabilitation” for LGBT people. The repercussions continue to be felt by LGBT people in Indonesia.7

[8]       According to Human Rights Watch, more recently the Indonesian Government publicly called for policies that would target LGBT individuals for arrest and “rehabilitation.”8 Local decrees and other official documents reviewed by Human Rights Watch proposed handing over lists of alleged gay and bisexual men to authorities, changing school curriculum to teach lies and hatred of LGBT people, force medical intervention to attempt to change their sexual orientation or gender identity and censoring speech about LGBT rights.9

State Protection:

[9]       With respect to state protection and in the particular circumstances of this case, according to the documentary evidence, the “government took almost no action to prevent discrimination against LGBT persons,” and in some cases it failed to protect LGBT individuals from societal abuse”. Further reports indicate that while the central government has not criminalized same-sex relations, various provincial governments have implemented  their own laws to punish LGBT individuals, including the Aceh provincial  government  which passed a law prescribing “100 lashes and/or up to 8 years  in prison”.10 The same report further notes that other provinces such as South Sumatra, Kalimaman, Tasikmalaya (West Java) and West Sumatra have done the same, though the punishment varies.11

[10]   Given the remarks made by government officials and more recently, the increasing anti-LGBT rhetoric depicted in counsel’s post-hearing disclosure, it would appear that the claimants have rebutted the presumption of state protection.

Internal Flight Alternative

[11]     I have further considered the objective country documentation which demonstrates a country with an increasing intolerance towards LGBT individuals. This intolerance is echoed in the NOP according to Human Rights Watch:

A series of anti-LGBT public comments by government officials grew into a cascade of threats and vitriol against LGBT Indonesians by state commissions, militant Islamists, and mainstream religious organizations. That outpouring of intolerance has resulted in proposals of laws which pose a serious long-term threat to the rights and safety of LGBT Indonesians.

[12]     Given the participation of the state in this growing anti-LGBT rhetoric, the laws put in place by various provincial governments throughout the country and the particular profile of the claimants, it appears that the claimants would be unable to live safely anywhere throughout Indonesia.

CONCLUSION

[13]     Having considered all of the claimant’s evidence on a forward-looking basis, including the claimant’s BOC, Ministers information, Counsel’s disclosure, the objective country documentation for Indonesia and the recording of the original RPD hearing, I recommend that this claim is suitable to he accepted without another hearing.

(signed)           N. LeBlanc

March 26, 2019

REASONS FOR DECISION

[1]       I have reviewed all of the evidence on file and listened to the testimony from the hearing. I have considered the particular circumstances of the claimants as well as the recommendation made by the Adjudicative Claim Officer and I agree that these claims are suitable to be accepted without another hearing for the following reasons.

[2]       I find that the claimants have sufficiently established their personal identities as citizens of Indonesia as well as their personal profiles as members of the LGBTQ community on a balance of probabilities. I did not find any issues as it relates to the credibility of their allegations or documents on file on a balance of probabilities. I also find that the claimants have established an objective basis for their claims. I find that the claimants face a serious possibility of persecution based on their membership in a particular social group. I further find that in the particular circumstances of the claimants that there is no adequate state protection or a viable internal flight alternative available to them. As such, I find the claimants to be Convention refugees.

[3]       Their claims are accepted.

(signed)           S. Bardai

March 26, 2019

1 Exhibits 2.1 & 2.2.
2 Exhibit 1.
3 Exhibits 4 & 6
4 Exhibit 6
5 Exhibit 3, National Documentation Package (NDP) for Indonesia (July 31, 2018).
6 Exhibit 3, National Documentation Package, Indonesia, 31 July 2019, tab 6.4.
7 Ibid.
8 Exhibit 10, Post-hearing disclosure, pages 11-12.
9 Ibid.
10 National Documentation Package, Indonesia, 31 July 2018, tab 6.2: IDN105148.E.
11 Ibid.