Citation: 2019 RLLR 132
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2019
Panel: A. Lopes Morey
Counsel for the Claimant(s): Meagan Johnston
Country: Kenya
RPD Number: TB8-18669
ATIP Number: A-2021-00256
ATIP Pages: 000082-000086
DECISION
[1] MEMBER: So, this is the decision in the claim for refugee protection put forward by, Mr. [XXX], who is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act, on the basis of your membership in a particular social group, as a gay man.
[2] You allege, Sir, that if you return to Kenya, you would be at risk of persecution on the basis of your sexual orientation.
[3] I find that you are a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act.
[4] I find that, if you were to return to Kenya, you risk a serious possibility of persecution, on the basis of your sexual orientation.
[5] I am satisfied you have proven your identity, on a balance of probabilities and I base that finding on the Kenyan passport, a copy of which is found at Exhibit 1.
[6] I note that you were a credible witness today, during the hearing. Your testimony regarding your sexual orientation, including how you discovered it, how old you were and the relationship that you had in Kenya with, [XXX], was detailed, genuine and spontaneous, in my view.
[7] Your testimony was consistent with your narrative from your Basis of Claim Form and I noted no omissions or any attempt to embellish your claim.
[8] You provided credible testimony about your feelings when you discovered your sexual orientation, as well as, your reaction to that discovery. I note you testified with respect to your choice to join a seminary where you would be away from your family and community, in a boarding school, as you tried to overcome the feelings that you discovered you were having.
[9] I found your most credible testimony to be when you described how [XXX] helped you to change your feelings about yourself and to help you accept who you are and your sexual orientation.
[10] I note you described the relationship that you had with [XXX], in detail. So, you were able to explain how you met, how your relationship went from a friendship to a romantic relationship, your efforts to keep that relationship secret and what may have led others, especially the students around you, to suspect that you had a romantic relationship.
[11] I note that testimony was consistent with your narrative and I did, again, find it spontaneous and detailed.
[12] I find, therefore, you have established that you had a relationship with [XXX] in Kenya, as alleged.
[13] You’ve also described your life here in Canada since you’ve arrived, including your involvement in various organizations, community organizations and your access to mental health support activities, which are support you to cope with your anxiety.
[14] Your testimony about why these services are important to you was genuine and credible. I find that you take advantage of mental health services to help you manage that anxiety, as alleged and that your anxiety stems from your experience of threats and physical harm associated with your sexual orientation, in Kenya.
[15] I note your claim was well documented, overall. First, I note that you have demonstrated you made efforts to contact the hospital where you were admitted in July of 2013, as a result of the physical attack that you underwent. I note the evidence is included in Exhibit 7.
[16] In addition to that evidence, you were also willing and able to show me your cellphone today, which included an additional e-mail sent on December 1st of this year, again, requesting medical records from that hospital.
[17] I think you have established that you made reasonable efforts to obtain your medical records in Kenya and I, therefore, draw no negative inference from the fact that they were not provided for the claim.
[18] Given the circumstances and that you are no longer in touch with your family, as well as, the prevailing attitudes in Kenya towards homosexuals, I do not draw a negative inference from the lack of a letter of support from Kenya or individuals that you know in Kenya.
[19] I note you were, however, able to provide a number of letters of support from individuals here in Canada who know you and who have met with you at various points on your journey in Canada, whether at community services or just establishing yourself in the community.
[20] You’ve also included letters and documents corroborating your attendance at various community organizations here, such as, the 519 and Sherbourne Health and I note those documents are found at Exhibits 6 and 7.
[21] Based on all of these considerations and the totality of the evidence before me, I find you have established that you are, on balance of probabilities, a gay man, as alleged and I find you have established you have a subjective fear.
[22] The country condition documents before me are consistent with your allegations that there is a serious possibility you would face persecution in Kenya, were you to return, on the basis of your sexual orientation.
[23] So, I make reference to the National Documentation Package, which is at Exhibit 3, as well as, the documents provided by yourself and your Counsel, which are found at Exhibit 5. I will note that there are consistent reports that individuals who are members of the LGBTQ community, in Kenya, face a serious possibility of persecution.
[24] Items 2.1 and 6.1 of the NDP in particular indicate that same-sex intimate behaviour is criminalized in Kenya with a maximum penalty of 21 years imprisonment.
[25] Item 2.1 further confirms that people have been detailed under those laws. There is evidence that from LGBTI organizations in Kenya that, the police more frequently use public order laws to detain people rather than the same-sex legislation. However, they do report that police frequently harass, intimidate or physically abuse LGBTI persons in custody, as well as, the fact that violence and discrimination against such individuals was widespread.
[26] I find the overwhelming evidence indicates that there is a serious possibility of persecution for individuals of the LGBTI community, in Kenya and having taken those reports into account, I find you have established that your fear is well-founded.
[27] With respect to state protection, I find that adequate state protection would not be available to you, were you to seek it in Kenya. There is clear evidence that, as mentioned, the police as an agent of the State can be one of the agents of persecution.
[28] I note again, Item 6.4 of the NDP, reports that the police have harassed LGBTI persons or those believed to be so and have subjected some of these individuals to blackmail and rape.
[29] I note additional indications in that item from a news report of June 2016, that persons of the LGBT community in Kenya can be legally tortured in order to find out if they are gay and that the high court has ruled that anal probe torture is legal and a reasonable way to prove the crime of homosexuality.
[30] Therefore, I find that you have rebutted the presumption of state protection and based on your circumstances, as well as, the objective evidence, adequate state protection would not be forthcoming in your case.
[31] For the same reasons, with respect to the State being one of the agents of persecution, I find that there is no internal flight alternative available to you inside Kenya.
[32] Consequently, I find that you are a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act and I accept your claim.
[33] CLAIMANT: Thank you.
[34] MEMBER: You’re very welcome, Sir. I wish you all the best in Canada.
——— REASONS CONCLUDED ———-