Citation: 2020 RLLR 142
Tribunal: Refugee Protection Division
Date of Decision: November 13, 2020
Panel: A. Marcotte
Counsel for the Claimant(s): Odaro Omonuwa
Country: Zambia
RPD Number: VB9-06329
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000163-000168
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of [XXX], who claims to be a citizen of Zambia, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[2] In rendering my reasons, I have considered and applied the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.
[3] In rendering my reasons, I have considered the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.
ALLEGATIONS
[4] You have outlined your reasons for seeking Canada’s protection in your Basis of Claim (BOC) form[1] as well as through your testimony. You allege that you cannot return safety to Zambia because you fear persecution by the state due to your sexual orientation as a lesbian.
DETERMINATION
[5] I find that you are a Convention refugee as you have established a serious possibility of persecution on account of your membership in a particular social group based on your sexual orientation for the following reasons.
ANALYSIS
Identity
[6] I find that your identity as a national of Zambia is established by your testimony and the documents provided: National identity card.[2]
Nexus
[7] You allege that you will be persecuted in Zambia due to your sexual identity as a lesbian. I find that there is a nexus between your allegation and the Convention ground of membership in a particular social group based on your sexual orientation. As such, I have considered their claims under both sections 96 and 97(1) of the Act.
Credibility
[8] I find you to be a credible witness and therefore believe what you alleged in support of your claim. You 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 which have not been satisfactorily explained.
[9] You submitted corroborative documents regarding your sexual orientation through affidavits from acquaintances, family, your church and the [XXX][3]. The country condition evidence described below also supports your allegations in Zambia. Based on the presumption of truthfulness, your testimony, and the corroborative evidence, I find, on a balance of probabilities, that your allegations are credible.
Risk of harm
[10] To establish your status as a Convention refugee or as a person in need of protection, you had to show that there was a serious possibility that you would be persecuted, or that you would be subjected on a balance of probabilities to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if removed to Zambia.
[11] You testified that you grew up in a very strict and religious household, and that you were taught that a women can only love a man. You spoke of how you witnessed your brother informing your parents that he was gay and the subsequent fall out he had with your parents who accused him of bringing shame and disgrace to the family. You testified that you have not heard from your brother since 2014 and that no one in your family knows where he is.
[12] You spoke of your own questioning and doubts regarding your sexual identity growing up and how you started exploring your feelings in more depth when you arrived in Canada in 2015 to study. You testified that you no longer wanted to live a lie and be in denial of who you were and informed your two sisters who live in Canada, of your sexual orientation, even knowing it would be a difficult conversation.
[13] According to the Zambia Penal Code Act, Section 158: Indecent practices between persons of the same sex of the Penal Code Act indicates:
[XXX] Any female who, whether in public or private, commits any act of gross indecency with a female […] person, or procures a female […] person to commit any act of gross indecency with her, or attempts to procure the commission of [XXX] any such act by any female person with himself or with another female […] person, whether in public or private, commits a felony and is liable, upon conviction, to imprisonment for a term of not less than seven years and not [XXX] exceeding fourteen years.[4]
[14] A report by International Lesbian, Gay, Bisexual, Trans and Intersex Association, 2015 the President Edgar Lungu declared: “We will not support homosexuality. I will not compromise human nature because of money. God made man and woman.”[5]
[15] The objective evidence highlights the challenges in Zambia in terms of advancing and protecting the rights of the LGBTQ community and the various incidences of state-sponsored homophobia and transphobia which continues to plagues the legal and political atmosphere of Zambia.[6] Based your identification as a lesbian and the state’s laws and treatment of individuals who identity as lesbian, I find that there is a serious possibility of persecution if you return to Zambia. I find that you have a well-founded fear of persecution based on your membership in a particular group, based on your sexual orientation.
State protection
[16] I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances. Given the current legislation and that the government is an agent of persecution, it appears objectively unreasonable for you to seek the protection of the state. Consequently, the presumption of state protection has been rebutted.
Internal flight alternative
[17] I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution or cruel and unusual treatment or punishment throughout Zambia, since the laws apply across the country and that you cannot be expected to hide from the state.
CONCLUSION
[18] Based on the analysis above, I conclude that you are a Convention refugee. Accordingly, I accept your claim.
[1] Exhibit 2.
[2] Exhibit 1.
[3] Exhibit 4.
[4] Exhibit 3, National Documentation Package (NDP), Zambia, March 31, 2020, Item 6.1.
[5] Exhibit 3, NDP Item 6.1.
[6] Exhibit 3, NDP Item 6.2.