Citation: 2019 RLLR 160
Tribunal: Refugee Protection Division
Date of Decision: August 14, 2019
Panel: Preeti Adhopia
Counsel for the Claimant(s):
Country: Kenya
RPD Number: VB8-02673
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000140-000143
— DECISION
[1] PRESIDING MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX XXXX or XXXX (phonetic) as she is known, as a citizen of Kenya who is claiming refugee protection pursuant to ss. 96 and 97 of the Immigration and Refugee Protection Act.
[2] These are her allegations: The claimant is a 25-year-old transgendered woman. Although she was born intersex, she did not become aware of this until coming to Canada. She lived as a male in Kenya and had sexual relationships with boys or men. The claimant came to Canada in XXXX 2015 to study and began to identify as a woman. She has had relationships with both men and women and is transitioning not only in terms of clothing but she has undergone surgery and is taking estrogen and plans further surgery. She fears that if she returns to Kenya, she will face persecution and other risks for being transgender.
[3] I find that pursuant to s. 96 of the Act the claimant is a Convention refugee as she has a well- founded fear of persecution in Kenya.
[4] The claimant’s identity as a national of Kenya is established by her testimony and passport in evidence. I’m satisfied of her identity by this document.
[5] In terms of credibility, the claimant gave testimony in a very open, thoughtful and obliging manner. She demonstrated a high degree of introspection as she candidly described how she came to learn that she is intersex, how she identified or expressed herself in Kenya and in Canada and how this has evolved and continues to evolve. She discussed the transition process and other medical measures she hopes to take in the future. She also testified about how her family members responded when she talked to them about being intersex and transgender. There were no material inconsistencies or contradictions within the claimant’s evidence that undermined her credibility in respect of her central allegations.
[6] I note that in terms of appearance, the claimant presents as female but more importantly she is clearly self-possessed about her sexual orientation and gender identity. I have no doubt that the claimant is a transgender woman and accept her allegations as credible.
[7] I find that the claimant has a well-founded fear of persecution based on her sexual orientation and gender expression. The claimant was born intersex, raised as a male and is now a transgender woman. She does not believe that she can change her sex or her name on her government documents, and is concerned that if she presents as a woman with a male name and government documents to go along with it she will have difficulties finding employment, housing and adequate medical services for example. She also fears violence and problems with police if she attempts to report it.
[8] As the claimant’s fear of persecution is based on her membership in a particular social group her allegations form a nexus to the Convention.
[9] The objective evidence corroborates the fact that sexual minorities face very serious problems in Kenya. Although the law in Kenya is silent on the — transgender issues according to Kaleidoscope Trust the penal code in Kenya criminalizes homosexuality referring it to as, “Carnal knowledge of any person against the order of nature.”
[10] Human Rights Watch finds that:
Authorities can punish consensual same-sex sexual activity with up to 14 years in prison.
[11] Though the UK Home Office report states that:
It is not clear if there have been any convictions.
[12] Astraea Lesbian Foundation for Justice reports that:
There is no legal protection from discrimination based on one’s sexual orientation or gender identity in Kenya. Furthermore, in Kenya criminalization of homosexuality has been used to justify harassment by police and state officials, torture, invasion of privacy, blackmail and extortion by security agencies and other non-state actors, denial of employment, violations of housing rights, interference with the right to education, poor access to health and medical research abuse.
[13] The Department of State maintains that:
Violence and discrimination against sexual minorities is widespread in Kenya.
[14] It states that:
Police use public order laws, for example, disturbing the peace more frequently than same-sex legislation to arrest LGBTIQ persons.
[15] According to the DOS:
Police frequently harass, intimidate or physically abuse sexual minorities in custody.
[16] The DOS also states:
The constitution does not explicitly protect sexual minorities from discrimination based on sexual orientation or gender expression.
[17] The evidence reveals that same-sex sexual activity is criminalized in Kenya and sexual minorities face very serious systematic and sustained human rights abuses that amount to persecution based on the claimant’s status as a queer, transgender intersex woman and the treatment of sexual minorities, I find that there is a serious possibility of persecution if she returns to Kenya.
[18] In this face — in this case, I do not find that the claimant could seek state protection because it is the state in part that the claimant fears for its human rights abuses and violations of fundamental freedoms of sexual minorities.
[19] The UK Home Office finds that:
There are reports of police harassment, intimidation and physical abuse of sexual minorities while in custody.
[20] Human Rights Watch finds that:
Police in Kenya play an ambiguous role, in some cases, they have protected sexual minorities from mob violence but they did not bring the perpetrators of violence to justice. In other cases, they have outright failed in their responsibility to protect by refusing assistance to victims because of their presumed gender identity or sexual orientation conducting arbitrary arrests or even perpetrating violence themselves.
[21] Human Rights Watch maintains that:
Criminalization of same-sex sexual conduct renders sexual minorities vulnerable to violence at the hands of ordinary citizens as well as law enforcement officials.
[22] I, therefore, do not find that there is likely to be adequate state protection for the claimant.
[23] I also do not find that the claimant could live safely elsewhere in Kenya as the treatment of sexual minorities is similar across the country, and the law criminalizing same-sex sexual relationships apply throughout the country.
[24] Having considered all of the evidence, I find that there is a serious possibility of persecution if the claimant returns to Kenya, and I accept her claim under s. 96 of the Act. This matter is concluded.
— DECISION CONCLUDED