Category: Jamaica

Citation: 2021 RLLR 26
Tribunal: Refugee Protection Division
Date of Decision: July 22, 2021
Panel: Gregory Israelstam
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Jamacia
RPD Number: TC0-11961
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000127-000130

DECISION

[1]     MEMBER: Welcome back, everybody. It is 2:34, and we are back on the record.

[2]     CLAIMANT: Thank you, [inaudible].

[3]     MEMBER: Sir, I am now going to read my decision and the reasons for my decision. Are you ready?

[4]     CLAIMANT: Yes.

[5]     MEMBER: Okay.

[6]     CLAIMANT: Thank you.

[7]     MEMBER: These are the reasons for the decision under the Immigration and Refugee Protection Act concerning XXXX XXXX XXXX XXXX.

[8]     XXXX XXXX XXXX, the claimant, seeks protection pursuant to s. 96 of the Immigration and Refugee Protection Act. The claimant is a citizen of Jamaica.

[9]     The allegations of his claim can be found in his Basis of Claim form and in his testimony. The claimant alleges a fear of persecution on the basis of membership in a particular social group. In particular, the claimant alleges a fear of persecution on the basis of his gender identity. The claimant alleges that as a transgender man, should he return to Jamaica, he would be subject to discrimination, harassment, and an increased risk of violence at the hands of society in general.

[10]   At the outset of the hearing, I identified credibility as a primary matter for the hearing to focus on. In particular, an assessment of credibility was required to determine whether the claimant is, as he alleges, a transgender man, and whether he fears persecution as a result.

[11]   With respect to identity, on the file at Exhibit 1 are certified copies of the claimant’s passports from Jamaica. Other identification documents can be found at Exhibit 1 and 4. Through these documents, and his testimony, the claimant has established his personal identity, and his citizenship of Jamaica.

[12]   With respect to credibility, the claimant testified at the hearing. The claimant testified under oath as presumed to be telling the truth, unless there are valid reasons to disbelieve the testimony. In this case, I find no valid reason to reject the claimant’s testimony with regard to his gender identity and his fear of persecution in Jamaica. The claimant was straightforward and spontaneous in his testimony. His testimony contained no material inconsistencies or contradictions. The testimony was consistent with the narrative found in his Basis of Claim form and was supported by a considerable number of documents submitted at Exhibit 4. These documents included medical reports, letters of support from people who knew the claimant in Jamaica, press articles confirming that the claimant has been active in the LGBTQ community in Jamaica, and photographs of the claimant at LGBTQ events.

[13]   Overall, the claimant provided credible and trustworthy testimony. The claimant testified that he was assigned a gender of female at birth. He discovered his gender identity when he was very young. He faced harassment and abuse at school and at home because he was perceived as having masculine mannerisms and he was attracted to women. The claimant testified that he did have a number of relationships with women at high school and during university. On a number of occasions, he had been threatened with violence or sexual assault to cure him. At one point in university, he narrowly escaped assault from a group of teenage boys who had been following him and his date. The claimant testified that he was also subject to discrimination and harassment at his workplace.

[14]   The claimant testified that he began hormone replacement therapy as part of his transition in 2015. He informed his workplace, a technical company named XXXX (ph). Although his supervisor undertook to attempt to aid in the transition in the workplace, the claimant testified that he continued to face harassment and abuse from colleagues. The claimant included other instances of threats or harassment short of actual assault in his Basis of Claim narrative. He testified that he did not go to the police because the police were homophobic, and often allied with people who might attack him.

[15]   The claimant testified that after he left XXXX, he discovered that somebody from that company had outed him as transgender without his consent or knowledge. In the claimant’s Basis of Claim narrative, he describes how this made it difficult for him to secure work.

[16]   The claimant testified that he felt he had to leave Jamaica by 2020. He testified that his XXXX health was suffering because of the stress of having to conceal his identity, as well as the fear of violence. The claimant testified that he was aware of other transgender people who had been assaulted.

[17]   In light of my findings with respect to the credibility of the claimant and the extensive supporting evidence, I find, on a balance of probabilities, the claimant is, as alleged, a transgender man. I further find that he has a fear of persecution on the basis of his gender identity in Jamaica.

[18]   Having found the claimant to have a subjective fear of persecution, I turn to the question of whether this fear has an objective basis. Country condition reports in the Immigration and Refugee Board’s National Documentation Package for Jamaica, dated 16th of April, 2021, support the claimant’s allegation that he is at heightened risk of violence, harassment, and discrimination in Jamaica because of his gender identity. Homophobia remains prevalent throughout Jamaican society, and transgender persons in particular are at high risk of harassment and violence.

[19]   I conclude that the claimant does have an objective basis for his fear of persecution. As such, the claimant has a well-founded fear of persecution.

[20]   The claimant testifies that he does not believe that the police would be able to help him escape a heightened risk of violence. Item 6.2, 6.5, and 6.7 of the National Documentation Package for Jamaica supports this allegation. Jamaica remains a deeply homophobic society, and transgender individuals face a higher risk of discrimination in the workplace, the provision of services, as well as harassment and an increased likelihood of ill-treatment and violence. While steps have been taken by the Jamaican government to address these issues in the hopes that the LGBTQ community will feel safer reporting violence or abuse to the police, in practice, these steps have not been successful. The police continue to often turn a blind eye towards persecution and may even be complicit to such persecution.

[21]   I conclude that there is compelling evidence that the state is unable or unwilling to protect the claimant against persecution. With respect to an internal flight alternative, given the pervasiveness of homophobia and anti-trans sentiments throughout Jamaica, I find there would be no reasonable internal flight alternative to the claimant in Jamaica.

[22]   My conclusion is this. Based on the evidence before me, and the testimony of the claimant, I conclude that the claimant has established a serious possibility of persecution on the Convention ground of membership in a particular social group if he were to return to Jamaica. The claimant is therefore a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act. His claim for protection is accepted.

[23]   That concludes my reasons. Sir, do you have any questions?

[24]   CLAIMANT: No, sir. Just a point — I think, in delivering your decision, you said that I started hormone replacement therapy in XXXX XXXX 2015. I actually started in XXXX XXXX 2016.

[25]   MEMBER: Thank you. My apologies. I think I got that from the Basis of Claim form, so — all right. I appreciate you correcting me. Other than that, do you have any questions?

[26]   CLAIMANT: No, sir, just — thank you.

[27]   MEMBER: I would like to thank you for answering all my questions. I do appreciate that they were personal questions, and they may have brought back some difficult memories, so I would like to thank you for being honest and open with me today. I would like to thank your counsel, who provided an excellent evidentiary record that made it very easy for me to come to a positive decision.

[28]   COUNSEL: Thank you.

[29]   MEMBER: And, if there is nothing else, sir, I wish you all the success possible in your new home.

[30]   CLAIMANT: Thank you, sir.

[31]   COUNSEL: Thank you. Have a good week.

[32]   MEMBER: The hearing is concluded. Have a good day, everybody.

[33]   CLAIMANT: You too.

[34]   COUNSEL: [inaudible].

———-REASONS CONCLUDED———-

Citation: 2020 RLLR 76
Tribunal: Refugee Protection Division
Date of Decision: January 21, 2020
Panel: L. Bonhomme
Counsel for the Claimant(s): Robin Edoh
Country: Jamaica
RPD Number: TB8-28318
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000105-000109

DECISION

[1]       MEMBER:    Alright good morning we are back on the record after a break. I see that your witness is present would you like her to remain for the duration of the hearing?  Okay.

[2]       I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. This is the decision for [XXX]. You are claiming to be a citizen of Jamaica and you are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       Given the nature of this claim I have taken into consideration the chair person’s guideline for proceedings before the Immigration and Refugee Board involving sexual orientation and gender identity and expression.

[4]       You will receive an unedited transcript of this oral decision in the mail in approximately three weeks. Your counsel will also receive a copy and can answer any related questions you may have at that time.

DETERMINATION:

[5]       Your claim is accepted. I find that you are a Convention refugee on the grounds of membership in a particular social group namely bisexual woman for the following reasons.

ALLEGATIONS:

[6]       You allege that you are a citizen of Jamaica and that you are a bisexual woman who is believed to be a lesbian by your family and community in St. Catherine’s. You were pressured into entering into relationships with men in Jamaica including a marriage which did not last very long.

[7]       You have been mistreated by family members and subject to threats and abusive language by the community as well as attempts on your life due to your perceived sexual orientation.

[8]       You allege that if you return you will be harmed or killed. You allege that there is no state protection for you or an internal flight alternative.

IDENTITY:

[9]       Your personal identity as a citizen of Jamaica has been established by your testimony and the supporting documents filed in the exhibits, particularly the certified true copy of your Jamaican passport and Canadian visa. I find that on a balance of probabilities you are who you say you are and that the country of reference is Jamaica.

NEXUS:

[10]     I find that there is a link between what you fear and one of the five convention grounds namely membership in a particular social group, bisexual women and therefore I have only assessed the claim under Section 96.

CREDIBILITY:

[11]     In terms of your general credibility I found you to be a credible witness and I therefore believe what you have alleged in your testimony and in your basis of claim form.

[12]     You answered all questions put to in a forthright manner, without hesitation or embellishment. When you did not know the answer to a question you said so. You displayed what appeared to be genuine emotion regarding difficult experiences in your life related to your sexual orientation.

[13]     For the most part your testimony was consistent with the allegations in your basis of claim form. I do find that there were some embellishment in your basis of claim form, for example when you described there to be many attempts on your life yet you were only able to describe two incidents in your testimony.

[14]     Although there were also some inconsistencies between the forms, your basis of claim form and your testimony, I accept your explanation that they were mistakes and likely owing to your emotional state.

[15]     You have provided the following documents to support your claim. Support letters from sister and mother confirming being aware of your sexual orientation and in the case of your mother of your mistreatment in Jamaica due to your perceived sexual orientation, a letter from the 519 centre in Toronto confirming your active involvement with the LGBTQ community in Toronto and the spousal sponsorship application made by your former same sex partner which was requested by the board and immediately forthcoming from you.

[16]     Your current same sex partner [XXX](ph) attended the hearing today and testified as a witness at the request of the panel. For the most part you were both consistent with relevant details of your relationship. Although there were some discrepancies adequate explanations were provided.

[17]     Based on of the above I believe on a balance of probabilities that you are a bisexual woman. believe that you have been in relationships with at least two women in Canada and that you were too fearful to act on your interest in women while in Jamaica.

[18]     I believe that you were subject to harassment and threats in your community in Jamaica as a result of your suspected sexual orientation. I believe that you are fearful to return to Jamaica because you may be harmed or killed due to your sexual orientation.

[19]     I therefore find that your subjective fear is established by your credible testimony, your witness’s credible testimony and by your corroborating documentation and I believe what you have alleged on a balance of probabilities.

[20]     I also find based on a review of the national documentation package that your fear is objectively well founded.

[21]     The documents including Item 6.1 through to 6.5 state that homosexual acts between males are criminalized in Jamaica, while the laws are not enforced and do not speak to acts between women the existence of these laws creates a climate that sanctions violence and discrimination against sexual minorities including lesbians.

[22]     Some types of Jamaican music propagate homophobia and politicians and church leaders have made negative statements towards sexual minorities.

[23]     Several sources including Articles submitted by your counsel report that sexual minorities are the target of violence including mob violence in Jamaica. Women believed to be lesbians are specifically targeted for corrective rape.

[24]     Sources also report that police often fail to take action regarding incidents of violence directed at sexual minorities. In some cases police are the perpetrators. Sexual minorities are often reluctant to report incidents for fear of their well being and for fear they may be extorted based on their sexual identity. I find that you have a well founded fear of persecution in Jamaica.

STATE PROTECTION:

[25]     States are presumed to be capable of protecting their own citizens except in situations where the state is in a state of complete breakdown. I find the objective documentary evidence I have already referred to, to be clear and convincing evidence to rebut the presumption of state protection.

[26]     Not only do police often fail to take action regarding incidents of violence directed at sexual minorities but in some cases police are the perpetrators.

INTERNAL FLIGHT ALTERNATIVE:

[27]     I have also considered whether a viable internal flight alternative exists for you. I find that there is no viable internal flight alternative available to you as the evidence indicates that there is a serious possibility of the persecution throughout the country. The climate of homophobia and violence exists throughout Jamaica.

CONCLUSION:

[28]     Based on the totality of the evidence I find you to be a Convention refugee and I accept your claim. The hearing is now concluded.

[29]     CLAIMANT:  Thank you very much ma’am.

[30]     MEMBER:    Thank you for coming this morning and sharing your story, thank you ma’am for attending today and testifying as well. Counsel thank you for assistance. I am just returning the original documents to you right now. Thanks.

———- REASONS CONCLUDED ———-

Citation: 2019 RLLR 72
Tribunal: Refugee Protection Division
Date of Decision: November 25, 2019
Panel: M. Robinson 
Counsel for the claimant(s): Pablo Andres Irribarra Valdes
Country: Jamaica
RPD Number: TB8-30002
ATIP Number: A-2020-01274
ATIP Pages: 000210-000213

DECISION

[1]       MEMBER: so I’m going to start that again. The panel has considered your testimony and all the other evidence in this case and the panel is now ready to render our decision orally. You [XXX] claim that you are a citizen of Jamaica and are making the claim for refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       In assessing this claim the panel considered the chair person’s Guideline 9 proceedings before the IRB involving sexual orientation, gender identity and expression. You will receive an unedited transcript of this oral decision in the mail in approximately three weeks. Your counsel will also receive a copy and can answer any related questions you may have at that time.

[3]       Your claim is accepted. We find that you are a Convention refugee as you have established a well founded fear of persecution in Jamaica based on a convention ground and that is having membership in a particular social group namely as a gay male.

[4]       The details of your allegations were documented in your basis of claim form as well as your oral testimony.

[5]       In summary you fear persecution in Jamaica because of your sexual orientation as a gay man. You allege that while growing up you have been the subject of negative treatment and verbal abuse due to your perceived sexuality and famine behaviours.

[6]       During your employment with the [XXX] and as a [XXX] you were called homophobic slurs and faced hostility and ridicule for your perceived sexual orientation.

[7]       You allege that you were in a same sex relationship in Jamaica from approximately 2014 to 2017 as well as casual encounters after that relationship ended.

[8]       On one occasion visiting your mother two men yelled homophobic slurs at you for your red coloured extensions and they threatened your life after you evaded the situation. On another occasion in [XXX] 2018 you were threatened from a man in a car and a group of men on the street. You allege that there is no state protection for you or an internal flight alternative.

[9]       Your personal identity as a national of Jamaica is established based on your testimony and documents namely the certified true copy of your passport in Exhibit 1.

[10]     The panel therefore finds on a balance of probabilities that your identity and country of reference have been established.

[11]     The panel finds that there is a link between what you fear and one of the five convention grounds, specifically your membership in a particular social group that of a homosexual man.

[12]     In terms of your general credibility, overall the panel found you to be a credible witness and the panel therefore accepts what you have alleged in your oral testimony and in your basis of claim.

[13]     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 us that were not satisfactorily explained.

[14]     The panel also notes that the allegations that you write in your basis of claim narrative and which you have testified about are supported by documentary evidence that you have provided.

[15]     The panel notes that this case is very well documented by corroborated personal documents to establish your sexual orientation as well as some of the other allegations in your claim specifically you submitted numerous letters of support from your current partner, ex partners, friends as well as social media and text correspondence between you and your close friends and partners.

[16]     You have provided copies of photographs including photographs of your employment and relationships. You have brought with you today Mr [XXX](ph) your current partner in Canada. He was a credible witness and testified with consistency in relation to your testimony to the genuineness of your relationship.

[17]     You have also brought your brother [XXX](ph) with you as a witness, although he was not required by the panel to testify.

[18]     The panel therefore finds on a balance of probabilities that you are a homosexual male. The panel believes that you have been in relationships with men in Jamaica and Canada. The panel believes that you have been subject to threats and abuse as a result of your sexual orientation. The panel believes that should you return to Jamaica you will be targeted and persecuted by the homophobic community due to your sexual orientation. The panel therefore finds that your subjective fear has been established.

[19]     The panel finds based on a review of the national documentation package that what you fear is objectively well founded. The documents show that homosexual acts between males are criminalized in Jamaica while the laws are not enforced negative attitudes and a climate of homophobia persist and is promoted through some types of Jamaican music by churches and politicians who have made negative statements towards sexual minorities.

[20]     The objective documentation supports your allegations that threats of violence and attacks against sexual minorities are frequent and widespread in Jamaica. This is also indicated in the articles provided by your counsel.

[21]     Person’s in the LGBTQ community in Jamaica have been attacked and are the targets of mob violence. Therefore the panel finds that you have a well founded fear of persecution.

[22]     The panel finds that adequate state protection would not be available to you were you to seek it in Jamaica.

[23]     You have stated in your narrative and testimony that you did not seek protection because you believed the police to be against homosexuals and feared escalating the situation in your community should the police investigate the incidents where you felt threatened.

[24]     The objective indicates, the objective evidence indicates that gay men are often reluctant to report incidents for fear of their well being and fear of extortion based on their sexual identity. Sources report that police often fail to take action regarding incidents of violence directed at sexual minorities even after being reported.

[25]     The climate of hostility towards sexual minorities and documentations such that shows that Jamaica has failed to develop a legal system that is responsive to and inclusive of the rights of the LGBTQ community.

[26]     The documentation reports that the state has failed in its obligation to take appropriate measures to prevent attacks and to vigorously investigate and prosecute attackers.

[27]     In light of the objective country documentation the panel finds that you have rebutted the presumption of state protection and that adequate state protection would not be available to you in Jamaica.

[28]     The panel has also considered whether a viable internal flight alternative exists for you. The country documentation indicates that the situation for individuals in circumstances such as yours is the same throughout the country. The climate of homophobia and violence exists throughout Jamaica. The panel therefore finds that there is no viable internal flight alternative available to you.

[29]     Based on the totality of the evidence the panel finds that the claimant is a Convention refugee. Your claim is therefore accepted. This concludes the hearing today.

———- REASONS CONCLUDED ———-

Citation: 2019 RLLR 68
Tribunal: Refugee Protection Division
Date of Decision: August 8, 2019
Panel: L. Bonhomme
Counsel for the claimant(s): Robin Edoh
Country: Jamaica
RPD Number: TB8-24644
ATIP Number: A-2020-01274
ATIP Pages: 000192-000198

REASONS FOR DECISION

[1]       The claimant, [XXX], is seeking refugee protection pursuant toss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).ⁱ

Determination

[2]       The panel finds the claimant to be a Convention refugee on the grounds of his membership in a particular social group, namely homosexual or bisexual males in Jamaica.

Allegations

[3]       The details of the claimant’s allegations are set out in the claimant’s Basis of Claim Form (BOC).ⁱⁱ In short, the claimant alleges that he was rejected, called names, mistreated and threatened with death in Jamaica because he is homosexual or bisexual.

[4]       The claimant is fearful of returning to Jamaica as he fears he will be killed or seriously harmed by his own family members, the family of the mothers of his children and the community at large.

[5]       The claimant alleges that there is not adequate state protection available to him or an internal flight alternative in Jamaica.

Identity

[6]       The claimant’s personal identity as a citizen of Jamaica has been established by the claimant’s testimony and the certified true copy of his Jamaica passport and Canadian visa on file.ⁱⁱⁱ

[7]       The panel finds on a balance of probabilities that the claimant is who he says he is and that the country of reference is Jamaica.

Nexus

[8]       As the panel has found that there is a nexus between what the claimant fears and one of the five convention grounds, namely membership in a particular social group, a homosexual or bisexual male, the panel has only assessed the claim under s.96 of the IRPA.

Analysis

[9]       The determinative issues in this claim are credibility, state protection and internal flight alternative. In making this assessment, the panel has considered all the evidence, including the oral testimony, documentary evidence entered as exhibits and counsel’s submissions as well as the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.^iv

[10]     The claimant testified and although he was hesitant at times and had difficulty expressing himself, the claimant appeared to be nervous and was not sophisticated. The panel took into account that although the claimant had completed secondary school it was not without some struggles, he was living in the bush for the latter part of his teenage years and he has only worked as a [XXX] for the past twenty plus years.

[11]     The claimant did not embellish his answers and was frank in sharing information that was not flattering or helpful to his claim, such as when he shared that he had married a woman in Canada in order to acquire status. This marriage lasted only one month due to the claimant’s inability to maintain the façade which was consistent with his previous relationships with women in Jamaica. The claimant’s testimony was internally consistent and he elaborated on matters only briefly summarized in the BOC.

[12]     The panel did have concerns that important details with respect to the material elements of the claim were missing from the BOC. The BOC did not contain any information about the claimant’s only relationship of import with a male which occurred in his teenage years. In his testimony, the claimant described how he was friends with [XXX] in high school and they enjoyed spending lots of time together. They were also attracted to one another and engaged in sexual activity. On one (and the last) occasion, they were caught by peers being intimate in a hut during a football game. Word spread to the rest of the community and to his father. The claimant’s father severely beat him and kicked him out of the house. [XXX] moved to Kingston. After that, the community continued to harm, harass and threaten the claimant as it was believed that he was homosexual. The claimant provided details of how he was treated, including the derogatory names he was called; being stoned; the crops in his field being destroyed; the windows of his home being broken; and being threatened to be set on fire with a tire. When the claimant was asked by the panel why this significant relationship and details of the ensuing treatment were omitted from his BOC, the claimant responded that he was scared to remember what he had been through. The panel accepts this explanation as the claimant appeared to be genuinely upset and affected by describing these events.

[13]     Although the claimant was unable to explain whether his sexual orientation was homosexual or bisexual, the panel does not draw any conclusions from this inability because the consequences to the claimant in Jamaica would be the same either way. The claimant convincingly described his physical attraction to men. As well, the claimant was able to convincingly describe his history of relationships with women. He explained that it was at his mother’s urging that he engaged in a series of relationships with women who became pregnant in order to cover up his attraction to males and to overcome the damage to his reputation caused by being caught in the hut with [XXX]. The claimant admitted that he was not always able to have sex with the women and he usually did not have feelings for the women inevitably leading to the end of these relationships. He did admit that he was somewhat attracted to and did have some feelings for the first woman.

[14]     The claimant submitted a letter from his sister in Jamaica. This letter corroborated the claimant’s allegation that he was believed by his family and the community to be homosexual. The claimant also submitted a letter confirming that he has reached out to the 519 Centre in Toronto, an organization for the LGBTQ community. The claimant testified that he was planning to participate in programming through the centre. He has connected with a male in Toronto who he is interested in but that relationship is moving slowly. The claimant was shy to share the individual’s name but was able to describe how they met and their tentative communications. The claimant explained that he was scared by what had happened to him in the past.

[15]     The claimant has established on a balance of probabilities that he is a homosexual or bisexual male. The claimant has also established on a balance of probabilities that his family and community in Jamaica are aware of his sexual orientation and that he has been harmed as a result.

[16]     Given the credible testimony by the claimant on issues going to the core of the claim as well as the corroborating documentation cited above, the panel believes what the claimant has alleged in support of his claim and finds that his subjective fear of persecution on the basis of his sexual orientation is established, on a balance of probabilities.

Objective Basis

[17]     A review of the national documentation package^v indicates that there is a climate of homophobia and violence throughout Jamaica. The documents state that homosexual acts between males are criminalized in Jamaica. While the laws are not enforced, there is a climate of hostility toward sexual minorities. Some types of Jamaican music propagate homophobia and politicians and Church leaders have made negative statements toward sexual minorities. Several sources report that sexual minorities are the target of violence in Jamaica and violence against sexual minorities is widespread and that sexual minorities may also be the targets of mob violence. Sources also report that police often fail to take action regarding incidents of violence directed at sexual minorities. In some cases, police are the perpetrators. Gay men are often reluctant to report incidents for fear of their well-being and may be extorted based on their sexual identity.

[18]     Based on the claimant’s personal experiences and the documentary evidence cited above, the panel finds the claimant’s fear of return to Jamaica to have an objective basis. The claimant has established a well-founded fear of persecution in Jamaica.

State protection

[19]     States are presumed to be capable of protecting their own citizens, except in situations where the state is in a state of complete breakdown. To rebut the presumption of state protection, a claimant has to provide clear and convincing evidence of the state’s inability or unwillingness to protect its citizens.

[20]     The claimant alleged and the panel believes that he did not seek police protection because the police themselves do not protect or assist homosexuals because they are homophobic like the rest of the community.

[21]     The panel finds the claimant’s failure to seek state protection was reasonable given the country conditions described in the national documentation package and described above. Not only do police often fail to take action regarding incidents of violence directed at sexual minorities but in some cases, police are the perpetrators.^vi

[22]     The country information is clear and convincing evidence that rebuts the presumption that adequate state protection is available to the claimant in Jamaica. The panel therefore finds on a balance of probabilities that the claimant cannot access adequate state protection in Jamaica.

Internal Flight Alternative

[23]     The panel has also considered whether a viable internal flight alternative exists for the claimant. The country conditions described above exist throughout the country.^vii

[24]     The panel finds that there is a serious possibility of persecution for the claimant throughout Jamaica and therefore finds that there is no viable internal flight alternative.

Conclusion

[25]     Based on the totality of the evidence, the panel finds the claimant to be a Convention refugee and the claim is accepted.

(signed)           L. Bonhomme

August 8, 2019

ⁱ Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended.
ⁱⁱ Exhibit 2: Basis of Claim Form.
ⁱⁱⁱ Exhibit 1: Package of information from the referring CBSA/CIC.
^iv Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(l)(h) of the Immigration and Refugee Protection Act, effective date: May 1, 2017.
^v Exhibit 3: National Documentation Package for Jamaica version 30 April 2019: items 1.6, 2.1, 2.2, 2.4, 2.5, 6.
^vi Supra.
^vii Supra.

Citation: 2019 RLLR 63
Tribunal: Refugee Protection Division
Date of Decision: January 29, 2019
Panel: O. Adeoye
Counsel for the claimant(s):  Robin Edoh
Country: Jamaica 
RPD Number: TB8-11977
ATIP Number: A-2020-01274
ATIP Pages: 000167-000173

REASONS FOR DECISION

[1]       [XXX] (the claimant) is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “IRPA” or the “Act”).¹

[2]       In assessing these claimants, the panel considered the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.²

ALLEGATIONS

[3]       The details of the claimant’s allegations are documented in her Basis of Claim (BOC) form, as well as her oral testimony.  In summary the claimant fears persecution in Jamaica because of her sexual orientation as a Lesbian. The claimant fears persecution from the public and the authorities due to the homophobic environment in Jamaica.

DETERMINATION

[4]       The panel finds that the claimant has satisfied the burden of establishing a serious possibility of persecution on a Convention ground if she were to return to Jamaica.

ANALYSIS

Identity

[5]       The claimant has established her identity as a national of Jamaica by her testimony and the supporting documentation filed, namely a copy of her Jamaican passport.³ The original document is in custody of Immigration, Refugees Citizenship Canada (IRCC) officials.⁴

Credibility

[6]       The panel found the claimant to be a credible witness on a balance of probabilities and the panel therefore accepts what has been alleged in support of her claim. The claimant testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between the testimony and the other evidence before the panel.

[7]       The claimant explained about the culture of homophobia in Jamaica, how the LGBTQ community functions in a homophobic society and how life was really difficult for her as a lesbian in Jamaica. She explained how she was treated differently in her family and how her father and siblings called her names. She stated that she received the same treatments at school and the community. She explained that while at school, students would confront her verbally and assault her physically and that she was reprimanded when she reported these assaults to the teachers in the school.

[8]       The claimant explained that she became worried after personally seeing how gay persons were treated in Jamaica and that she did not have a same-sex relationship because of her fear of being harmed in Jamaica. She stated that her mother encouraged her to date men and that she tried to date men but she could not.

[9]       The claimant explained that while at the [XXX] school, she met a [XXX] teacher (Ms [XXX]), who noticed that she always kept to herself and that she was different from other girls in the school. She stated that Ms [XXX] met her parents and advised them to allow her go to a country where she would be free to be who she really wants to be. She stated that her parents were worried about her safety even though they were not happy about her sexual orientation. The claimant explained that based on Ms. [XXX]’ s advice, her mother reached out to her sister (the claimant’s aunt) in Canada and she was invited to Canada by her aunt.

[10]     The claimant testified about her current relationship and she testified with the detail and emotion that one would expect in describing such a relationship. The claimant’s same-sex partner provided a letter of support and also testified in person to provide evidence about their same-sex relationship and knowledge of the principal claimant’s sexual orientation as a lesbian.⁵ The panel, on a balance of probabilities found the witness testimony to be credible.

[11]     The claimant disclosed corroborative evidence which includes a support letter from her mother, who confirmed the claimant’s circumstances in Jamaica and her sexual orientation as a lesbian. She provided copies of her academic diploma, which includes her early childhood diploma from the [XXX] college in Jamaica, the school where she met Ms. [XXX]. The claimant also provided several probative pictures of herself and her current same-sex partners at community and social events including LGBT events. The claimant provided copies of text messages exchanged between the claimant and her current same-sex partner in Canada. In addition, a welcome letter of support, identification and attendance log sheet from The 519 community center was provided to the panel to support the claimant’s involvement in the LGBT community in Canada.

Delay in Claiming

[12]     The panel had some concerns regarding the principal claimant’s subjective fear due to her delay in claiming in Canada. In response to her delay in claiming in Canada, the claimant stated that she applied for a visa extension and it was denied. She stated that upon denial, she went with her aunt to an agent, who advised the claimant to make a Humanitarian and Compassionate claim. She stated that she signed some papers with the agent but the agent did not process the Humanitarian and Compassionate application. The claimant further stated that she did not know that she could make a refugee application because of her sexual orientation and that she only found out about making a refugee claim when she started interacting with the LGBTQ community and she was introduced to her current representative.

[13]     The panel accepts the explanation provided by the claimant because she made efforts to remain in Canada permanently and draws no negative inference in regards to the claimant’s subjective fear.

[14]     The panel finds, on a balance of probabilities, that the claimant is credible and the panel accepts her allegations as credible and the claimant has established her subjective fear.

Objective Evidence

[15]     The panel also finds that the claimant’s fear of harm in Jamaica because of her sexual orientation as a lesbian woman is supported by the documentary evidence.

Jamaica

[16]     The objective documentary evidence indicates that, according to sources, same-sex acts between men are criminalised in Jamaica. While sources report that same-sex acts between women are not criminalised in Jamaica, the US Department of State’s Country Reports on Human Rights Practices for 2016 specifies:

“[t]he law prohibits ‘acts of gross indecency’ ([which are] generally interpreted as any kind of physical intimacy) between persons of the same-sex.”⁶ Further, according to sources “despite a lack of enforcement, the existence of these laws creates a climate that sanctions violence and discrimination against sexual minorities.”⁷

[17]     The documentary evidence speaks to the societal attitudes and discrimination in Jamaica against members of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community. According to the Country Reports on Human Rights Practices for 2016, homophobia is “widespread” in Jamaica.⁸ Furthermore:

other sources note that homophobia continues to be perpetuated by the country’s music, political and religious figures and by the media. According to Human Rights First, sexual minorities “face both general societal discrimination as well as discrimination in access to services, including healthcare, housing and employment.” [citations omitted]⁹

[18]     The documentary evidence indicates that violence and harassment against sexual minorities continue to be problems in Jamaica:

Human Rights Watch … states that physical and sexual violence is “part of the lived reality” for many members of sexual minorities and that “the level of brutality leads many to fear what could happen if their sexual orientation or gender identity is disclosed.”¹⁰

[19]     Based on the claimant’s testimony on her personal experiences and the documentary evidence cited above, the panel finds the claimant’s fear of return to Jamaica to be objectively well founded.

State Protection and an Internal Flight Alternative

[20]     The objective evidence supports the reasonableness of the claimant’s allegations and the conclusion that state protection would not be reasonably forthcoming in this particular case. With respect to the claimant’s profile as a lesbian woman, the panel finds that state protection would not be reasonably forthcoming to her.

[21]     The documentary evidence confirms that “citizens express mistrust towards the police and their effectiveness.”¹¹ Further sources indicate:

“bias based specifically on gender identity or sexual orientation directly contributes to the inadequate police response”. Following interviews with LGBT persons in 2013, Human Rights Watch notes that most respondents indicated that they did not report incidents of violence to the police because they believed that police would not take any action…. [W]hile individual police officers “showed sympathy” and worked on cases involving sexual minorities, NGOs [non-governmental organizations] reported that “the police force, in general, did not recognize the extent and seriousness of bullying and violence directed against members of the LGBT community and failed to investigate such incidents.”

[22]     The documentary evidence also indicates “that police officers have perpetrated violence against sexual minorities themselves.”¹² Further, according to the Inter-American Commission on Human Rights:

“[p]etitioners reported abuse and discrimination against LGBTI individuals who were either ignored or laughed at when they attempted to report acts of violence, or were themselves the direct victims of police abuse, including arbitrary detention, blackmail, extortion, threats and cruel and degrading treatment.”¹³

Human Rights Watch noted “that while cases of police violence appear to have decreased between 2004 and 2014, ‘the persistence of even isolated cases is of great concern given the police’s role as a source of protection. “‘¹⁴

[23]     I have considered whether there is a viable internal flight alternative for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Jamaica since homophobia as per the Department of State report is widespread.¹⁵

CONCLUSION

[24]     For the foregoing reasons the panel concludes that the claimant would face a serious possibility of persecution on the basis of her sexual orientation should she return to the Jamaica. Accordingly, the claim is accepted under Section 96 of the IRPA.

(signed)           O. Adeoye

January 29, 2019

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended.
² Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
³ Exhibit 1.
⁴ Exhibit 1, Notice of Seizure.
⁵ Exhibit 9.
⁶ Exhibit 3, National Documentation Package (NDP) for Jamaica (31 March 2017), item 2.1.
⁷ Exhibit 3, NDP for Jamaica (31 March 2017), item 6.1.
⁸ Exhibit 3, NDP for Jamaica (31 March 2017), item 2.1.
⁹ Exhibit 3, NDP for Jamaica (31 March 2017), item 6.1.
¹⁰ Ibid.
¹¹ Exhibit 4, NDP for Jamaica (31 March 2017), item 6.1.
¹² Exhibit 4, NDP for Jamaica (31 March 2017), item 6.1.
¹³ Ibid.
¹⁴ Ibid.
¹⁵ Exhibit 3, National Documentation Package, Item 2.1, Jamaica. Country Reports on Human Rights Practices for 2015, United States. Department of State, 13 April 2016.