Citation: 2019 RLLR 146
Tribunal: Refugee Protection Division
Date of Decision: March 22, 2019
Panel: Harvey Savage
Counsel for the Claimant(s): Victoria A Bruyn
Country: Zimbabwe
RPD Number: TB8-12629
ATIP Number: A-2021-00256
ATIP Pages: 0000168-000172
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision for [XXX] and [XXX] who claim to be citizens of Zimbabwe, and are 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 Chairperson’s 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 allege the following: You have identified as having a same sex preference from a young age. You had several relationships with women, and the most serious one was with [XXX]. She was with you when the father of your son entered an eating establishment and verbally assaulted you because of your sexual preference. Shortly after, you and [XXX] both became members of Gays and Lesbians in Zimbabwe (GALZ). At the end of January 2018, that same person, [XXX] came to your house and forced you to perform oral sex on him. He was violent with you. You did not report this to police because you feared being arrested because of your sexual orientation. After you were terminated from your employment in April 2018, due you feared because of your sexual orientation, you left Zimbabwe fearing continued persecution and eventually entered Canada from the United States. You were also fleeing from [XXX] whose father raped your sister in Zimbabwe. [XXX] father is also the nephew of [XXX] was threatening you to produce your sister, and unbeknownst to him, she had fled to Canada where she made a successful refugee claim. You fear not only for yourself but for your son who is a co-claimant because if he returns to Zimbabwe he will face the wrath of both [XXX] because of you and your identity as a lesbian, and you will not be able to protect him.
DETERMINATION
[5] I find that you are Convention refugees as you have established a serious possibility of persecution should you return to Zimbabwe based on the grounds in section 96.
ANALYSIS
Identity
[6] I find that your identities as nationals of Zimbabwe are established by the documents provided: passports and birth certificates.
Nexus
[7] I find that you have established a nexus to section 96 by reason of your membership in a particular social group, a lesbian in Zimbabwe.
[8] Based on the documents in the file, and the testimony at this hearing I have noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above. Your sister [XXX] whom you mentioned in your narrative, was a witness at today’s hearing and she confirmed many aspects of your claim. In particular, she confirmed your sexual orientation as a lesbian, your various relationships while she was still living in Zimbabwe, and her agent of persecution, [XXX] who plays a central role in why you fear returning to Zimbabwe. I found her testimony credible.
[9] I further considered the letter from [XXX] with whom you had a relationship in Zimbabwe and she confirmed the events with [XXX] which culminated in your decision to flee Zimbabwe with your son and various other written correspondence including from your mother. I also note your attested to membership in the GALZ organization. After reviewing the documents, I have no reasons to doubt their authenticity.
[10] I have also considered the evidence of bullying and harassment experienced by your son when word spread that his mother is someone perceived as gay.
Objective basis of future risk
[11] Based on the credibility of your allegations, and the documentary evidence set out below, I find that you have established a future risk that you will be subjected to the following harm: retribution by violent assaults and inability to obtain adequate state protection.
[12] The fact that you face this risk is corroborated by the following documents: National Documentation Package (NDP) for Zimbabwe – June 29, 2018, items 1.4, 2.6, 6.2 and 6.3, as well as, Exhibit 5.
Nature of the harm
[13] This harm clearly amounts to persecution.
Internal flight alternative
[14] 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 throughout Zimbabwe. Anti-gay legislation criminalizing same sex relations is operative throughout Zimbabwe and carries a maximum penalty of three years.
[15] On the evidence before me, I find that it is not objectively reasonable, in all the circumstances, including those particular to you, for you to seek refuge in Zimbabwe for the following reasons. Anti-gay legislation criminalizing same sex relations is operative throughout Zimbabwe and carries a maximum penalty of three years.
CONCLUSION
[16] Based on the analysis above, I conclude that you are convention refugees. Accordingly, I accept your claims.
(signed) Harvey Savage
March 22, 2019