Categories
All Countries Democratic Republic of Congo

2019 RLLR 46

Citation: 2019 RLLR 46
Tribunal: Refugee Protection Division
Date of Decision: October 31, 2019
Panel: Sarah Cote
Country: Democratic Republic of Congo
RPD Number: MB9-00088
ATIP Number: A-2020-01274
ATIP Pages: 000037-000041


[1]       This is the decision for the refugee claim of Mr. [XXX]. The Claimant, [XXX], a citizen of Republic of Congo is claiming refugee protection under Sections 96 and 97.1 of the Immigration and Refugee Protection Act.

[2]       The Claimant, that is you, alleges a well-founded fear of persecution for reason of his membership in a particular social group, as being a homosexual man.

[3]       The tribunal finds that the Claimant has established that there is a serious possibility of persecution on a convention ground. As for your allegations in support of your claim you allege the following.

[4]       You discovered that you were a homosexual at the age of twelve when you kissed a friend or you were kissed by a friend named [XXX] [phonetic] with whom you would continue to have about a three-year relationship. That relationship ended when [XXX] was severely attacked when you both were in a bar and he was attacked because he was perceived as a homosexual man and he was killed.

[5]       After that event you tried to commit suicide and it failed. You then left for South Africa in 2008. You also stated that over the years you had been on a number of occasions detained by the police because of your sexual orientation and then released upon the payment of bribes. When you left for South Africa you entered the country illegally with the help of a friend, [XXX] with whom you would have a relationship for a few years. And then [XXX] when he expressed his sexuality to his father you allege that he was killed by his father for his sexual orientation and you feared for your life as well.

[6]       You also tried living in Namibia with your brother who works as a pastor and because of his association with you and your sexual orientation or perceived sexual orientation by the community, your brother’s church was attacked. Your sister-in-law was also attacked. Her car was attacked and they were threatened and pointed at as performing demonic activities because of your association with them and the fact that you are a homosexual man.

[7]       You fear should you return to the Republic of Congo the police, the community which you describe as homophobic that would randomly attack you knowing or perceiving your sexuality. And you also fear the family of your deceased boyfriend which who attacked your family after [XXX] death and also would hold you responsible for the death of their son.

[8]       As for your identity I find that your identity has been established through the copy of your Congolese passport on file.

[9]       As for credibility the tribunal is bound by the principle laid out in Maldonado whereby a refugee Claimant swears that certain facts are true this creates a presumption that they are true and unless there is a valid reason to doubt their truthfulness. The tribunal did not find any relevant inconsistencies, omissions or implausibilities that weren’t reasonably explained or that would lead it to draw negative conclusions regarding your credibility as to your sexual orientation as a homosexual man.

[10]     In support of your allegations regarding your sexual orientation you had a few supporting letters. You also have a copy of your social media activities which contain photos but also homophobic remarks that are made against you. And you also had a witness that was ready to testify today but since your testimony was found to be very creditable by the board the tribunal did not think it would be necessary today to hear your witness.

[11]     As for testimony, I find that you had a very forthcoming and creditable and spontaneous testimony. You did not try to embellish your testimony and as your lawyer asked you more questions more details arise but it was plain to see that you have lived through some very difficult times and the reminiscing of all these events was emotional at some points and difficult. And this made your testimony very creditable.

[12]     You were able to speak about how you discovered your sexual orientation or you felt different as a child and that your gender expression is different as you said that people told you that you acted like a girl and ostracized you in school and you had a very hard time because of it. You also were able to speak about your relationship with [XXX] and the incident that led to his death.

[13]     As for the time spent in South Africa you were able to reasonably explain why you were not able to stay there with the death of your partner, [XXX], by the hands of his father and xenophobic climate that made you fear for your safety. And you tried to have a better life in Namibia which turned out to be even harder for you in terms of safety because of your sexual orientation.

[14]     Your allegations are supported by the documentary evidence so the National Documentation Package for the Democratic Republic of Congo, the U.S. country report indicates that there is no law that specifically prohibits homosexuality or homosexual conduct but article 330 of the Penal Code of the DRC proscribes imprisonment for three to two years and a fine for those who commit public outrage against decency and this is used by the police officers to persecute the LGBT community in Congo, in the DRC.

[15]     The National Documentation Package also indicates that there is a law that is being studied to criminalize officially homosexuality in the DRC and sexual minorities in this country are stigmatized and ostracized by the general population. They cannot have access to normal schooling as you have also told us about today. They have difficulty obtaining work, access to credit, or other financial or economic means.

[16]     The sexual minorities in the DRC are also victimized by the security forces of the state and are arbitrarily detained, are attacked physically and sexually and threatened. There are no support systems for sexual minorities in Congo, in DRC as you have also told us and this is seen in the National Documentation Package.

[17]     As for state protection and the internal flight alternative. Since state protection is not available as the police themselves persecute homosexuals and the LGBT community the tribunal finds that you would not obtain state protection from the Congolese authorities and they are an agent of persecution.

[18]     As for the IFA, the tribunal finds that you cannot be expected to deny your sexual orientation to live in your country and no matter where you would reside you would continue to have your sexual orientation and it would cause problems across the country so there is not viable IFA for you.

[19]     In conclusion, the tribunal having analyzed the evidence as a whole finds that you have discharged the burden of establishing that there is a serious possibility that you would be persecuted on a Convention ground and therefore the tribunal concludes that you, [XXX] are a “Convention Refugee”. Thank you.