Citation: 2019 RLLR 136
Tribunal: Refugee Protection Division
Date of Decision: September 12, 2019
Panel: Melinda Gayda
Counsel for the Claimant(s): Adrienne Smith
Country: Barbados
RPD Number: TB8-24140
ATIP Number: A-2021-00256
ATIP Pages: 0000106-000111
DECISION
[1] MEMBER: This is the decision in the claim for refugee protection of [XXX]. The file number is TB8-24140.
CLAIMANT
[2] The claimant asked the Member for letting her sister into le hearing room
MEMBER:
[3] Yes, absolutely. The counsel’s going st- ask your sister to come in.
CLAIMANT:
[4] Thank you.
[5] MEMBER: She can be the support person for you. I know it’s a, it’s a big day and it’s a big decision.
[6] So, you are claiming to be a citizen of Barbados and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).
[7] I’ve considered your testimony and the other evidence in your claim. And I’m giving you my decision orally. And that is to accept your claim. In assessing your claim, I have applied the Chairperson’s Guidelines. Guideline 9 on sexual orientation and gender identity and expression. I find that you are a convention refugee pursuant to Section 96 of the Act on the grounds of your membership in a particular social group as a bi-sexual woman. I find that you would face a serious possibility of persecution in the future if you returned to Barbados.
[8] Your allegations are set out in detail in your Basis of Claim form. In summary you allege a fear of acts of violence, harassment and hostility as well as pervasive discrimination from the community because of your sexual orientation in, as a bi-sexual woman in the Bahamas, I’m sorry, in Barbados. You allege that if you return to Barbados, you will face stigma, social exclusion and discrimination in many aspects of life and from the community. And this would include verbal insults and possible physical violence. That you could not live openly and freely as a bi-sexual woman in Barbados without experiencing this kind of harassment threats and discrimination.
[9] You allege that the state authorities such as the police are also homophobic and could not be depended upon to offer you protection in situations where you may be threatened with or experience violence on account of your sexual orientation. And you say that there’s no safe place for you to live anywhere in Barbados.
[10] Your identity. I find that your personal and national identity as a citizen of Barbados has been established on a balance of probabilities by your testimony as well as the supporting documentation filed in Exhibit I. Mainly the certified true copy of your Barbadian passport that was seized by the Immigration Refugee Citizenship Canada officers, when you started your refugee claim.
[11] The nexus in this case, the link between what you fear and the refugee convention is your membership in a particular social group as a bi-sexual woman. Therefore, I’ve accessed, assessed your claim under Section 96.
[12] Moving on to your credibility. In terms of your general credibility, I found you to be a credible witness. Your testimony was straight forward and consistent with your Basis of Claim form and other forms. And there were no inconsistencies or omissions that were relevant or went to the core of your claim. You provided spontaneous details of how you came to understand that you were attracted to women. And that you are, and that you came to the understanding that you were bi-sexual. You also provided details of your past same sex relationships and the discriminatory and threatening incidents that you experienced m Barbados. These were details that I would expect of someone who had lived the experiences described.
[13] For someone as yourself who has grown up in a society such as Barbados wh-,which is the country evidence tells us that being on the LGBT spectrum there is treated with scorn and ridicule and given the strong influence of religion in a small country, being LGBT is often viewed as being sinful. I found your testimony to be credible. You testified without any obvious embellishment and in a fluid immediate way. You also provided corroborating documentation about your sexual orientation. Letters from your friends who knew of your sexual orientation at this moment now in Canada as well as tho-, as well as those who knew you in Barbados as being bi-sexual and for having experienced problems there because of it.
[14] You also provided, provided letters from your sisters, one sister in Canada who identifies as a lesbian and whose refugee claim was accepted in 2014. And a letter from a sister in Barbados who provided details about your family situation and learning about your sexual orientation and how she has seen the change in you on her visit to Canada. And she’s noted that you were no longer having to hide who you are. And she sees you now as someone who is confident and comfortable with herself.
[15] You also provided a letter from the youth resource worker at Supporting Our Youth, S-O-Y, SOY that provides the Black Queer Youth program, which you are attending. You also provided photographs of you with past girlfriends in Barbados and you spoke knowledgably and credibly about the circumstances of these photos and your feelings for these women. How it was when you dated them and why you broke up with them.
[16] You responded with reasonable explanations and plausible details to my questions for you about these corroborating documents. And as I’ve mentioned these documents go to the core aspects of your claim namely your identification as a bi-sexual woman and the fact that you’ve lived in and been in same sex relationships in the past.
[17] Your sister [XXX] was here and she is here and was willing to testify as a witness on your behalf. However, given your credible testimony and other corroborating evidence, I did not, I determined I didn’t need to hear from her, as I found that you’ve established your core allegations on a balance of probabilities.
[18] I believe you, that you’ve been attracted to both men and women in the past. And you’ve had intimate relationships with both. I believe that the incident that, what you’ve described as incidents of past harassment, threatened violence and discrimination and you’ve experienced that due to your bi-sexuality and the perception of others in the Barbadian community that you are a bi-sexual.
[19] You testified that you would like to, bl-, live openly and freely and be free to date both men and women in the future. And that for you it depends on the personality of the person that you meet. Therefore, I find you’ve established your core allegations of being a bi-sexual woman and fearing persecution in the future in Barbados.
[20] Moving to subjective fear. I’ve considered that and I find that you’ve established that you’re subjectively fearful of returning to Barbados. Prior to your recent arrival in Canada on [XXX] 2018 and claiming refugee status shortly thereafter, you visited Canada in [XXX] 2017 for approximately 2-3 weeks. And you had came, you came on that trip with your mother, sister and your sister’s friend to visit your sister in Canada, [XXX]. Who now resides here since her refugee claim was accepted in 2014. And then you returned to Barbados on [XXX], 2017.
[21] I asked you why you returned to Barbados at that time, knowing how you’d had to live there hiding your sexual orientation and knowing how society treated people who were on the LGBT spectrum. And why you didn’t make a refugee claim in Canada when you were here for that first time. You responded that you had travelled with your mother and she was very controlling, protective and strict. You didn’t want to upset her by staying in Canada and you believed that she would possibly blame your sister here, if you remained in Canada.
[22] You described that your sister’s relationship with your mother was already fairly fragile due to your mother learning that she was a lesbian. And you didn’t want to come out to your mother as you knew that she had already suspected you were gay and had said in the past that she couldn’t deal with having two gay children. This testimony, testimony was consistent with your Basis of Claim form.
[23] You testified that you went back to Barbados at that time and then you actually slipped into depression again and you didn’t feel like you were supposed to be living there anymore. You dated a man who was physically violent with you, when he learned that you had dated girls in high school and had been outed by classmates for being gay. He told you that he didn’t want to be known as a guy who dated a girl who had dated girls. You spoke with your sister in the spring of 2018 and she encouraged you to come to Canada to be safe and free and make a refugee claim. She offered her financial support for you to make the journey and have a place to stay here. So, you came here in [XXX] 2018 and shortly, and shortly thereafter made your refugee claim.
[24] I have found your cresti-, testimony to be credible and you returned for, to Barbados from your first visit to Canada before your subsequent return back to Canada to file your refugee claim has been reasonably explained. Therefore, I find you have a subjective, a well-founded subjective fear of persecution in Barbados.
[25] Moving to the objective basis of your risk of persecution. According to the documentary evidence in the National Documentation Package, Exhibit 3, LGBT persons in Barbados face widespread and social stigma, bullying, discrimination, harassment and at times violence. Particularly within their own families. The Item 2.1 is the United States Depart of States report on human rights practices in Barbados. And for the year 2018, it notes that the law criminalizes consensual same sexual activity in Barbados between adults with penalties up to life imprisonment. And there were not reports though of the law being enforced during the year.
[26] The law in Barbados does not prohibit discrimination against a person based on real or perceived sexual orientation or gender identity in areas such as employment, housing, education or health care. Civil society groups reported that LGBT persons faced discrimination in these areas in Barbados and that police disapproval and societal discrimination against LGBT persons made them more vulnerable to threats, crime and destruction of property.
[27] Now, the Federal Court has held and it’s set out in the SOGIE guidelines, in particular, paragraph 8.5.1.1, that being forced to conceal ones sexual orientation to avoid harm is, is itself persecutory as it constitutes a serious interference with a fundamental human right. Many LGBT persons in Barbados are unfortunately forced to conceal their sexual orientation to avoid societal discrimination, widested-, widespread stigma, bullying and harassment, as well at times violence. I find that you would, you, that if you were forced to do this as well, that such expectation interferes with your fundamental human rights. Therefore, I find your allegations to be objectively well-founded.
[28] Moving to state protection. I find that you have rebutted the presumption of state protection with clear and convincing evidence, that adequate state protection would not be available to you were you to seek it in Barbados. You testified that in your view, based on what you had heard in the media and from others in the community that the police were very homophobic in Barbados and that they have a reputation for turning a blind eye when gay people need help.
[29] The objective documentary evidence in our National Documentation Package at Item 6.1 a response to information request. Indicates that most members of the LGBT community do not report matters to the police out of fear of negative repercussions or facing ridicule and that LGBT individuals in Barbados have faced condemnation by police officers. And a UN report from 6 years ago as noted in that RIR, response to information request from 2012, noting that police were denounced as discriminatory by, in this UN report, in their treatment of victims who are from the LGBT community. In Barbados as I’ve already noted, same sex relations continue to be criminalized and while not prosecutions appear to have occurred under the law for quite a number of years, I find that having such a law further legitim- legitimizes discriminatory and oppressive treatment towards LGBT individuals.
[30] Also, there’s some documentary evidence that indicates the state of Barbados does not have laws in place that prohibit this, that prohibit discrimination on the basis of sexual orientation. That’s found in Item 2.1, page 9, as well as Item 6.2 a report entitled Criminalization of Homosexuality a report from March 2019 page 4. It is reported that it is common for LGBT persons to face discrimination in housing and employment. Therefore, I find the state fuels and allows discrimination to be accepted by such laws that criminalizes same sex, she-, same sex activity as well not having laws in place to prohibit discrimination on the basis of one’s sexual orientation.
[31] Your experiences in Barbados are consistent with this evidence. You faced homophobic remarks from a past, past employer and also bullying and threatening behaviour from other students while attending school. You felt you could not go to the school administration because you were fearful they would tell your parents but also because the school admiss-, administration you did not feel would, would offer you any assistance. This is found in the documentary evidence that there’s no human rights or anti-discrimin-, discrimination laws or processes in place that you could have turned to. You felt demeaned and that you had to hide who you were to be safe and not face harm.
[32] In light of this evidence, I find you’ve rebutted the presumption of state protection based on your personal circumstances as well as the objective country documentation. I find that adequate state protection would not be available to you in Barbados. I’ve considered whether a viable internal flight alternative exists for you in Barbados. Barbados is a very small country and there’s no evidence that the societal, discriminatory and homophobic attitudes are localized or that there would be any place where you could live openly and safely as a bisexual woman without experiencing such discrimination.
[33] You testified about the problems you face and that moreover that the law criminalizing same sex relations is one that applies to the entire country. And it’s a way that the state as I’ve said perpetuates the stigma and hostility of the public towards LGBT individuals. I therefore find that there’s no viable internal flight alternative to you in Barbados.
CONCLUSION
[34] So, in conclusion and based on the totality of the evidence, I conclude that you are a Convention refugee pursuant to Section 96 if the Act and I therefore, accept your claim.
[35] CLAIMANT: Thank you
[36] MEMBER: Thank you. We are concluded.