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2019 RLLR 63

Citation: 2019 RLLR 63
Tribunal: Refugee Protection Division
Date of Decision: January 29, 2019
Panel: O. Adeoye
Counsel for the claimant(s):  Robin Edoh
Country: Jamaica 
RPD Number: TB8-11977
ATIP Number: A-2020-01274
ATIP Pages: 000167-000173


REASONS FOR DECISION

[1]       [XXX] (the claimant) is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “IRPA” or the “Act”).1

[2]       In assessing these claimants, the panel considered the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.2

ALLEGATIONS

[3]       The details of the claimant’s allegations are documented in her Basis of Claim (BOC) form, as well as her oral testimony.  In summary the claimant fears persecution in Jamaica because of her sexual orientation as a Lesbian. The claimant fears persecution from the public and the authorities due to the homophobic environment in Jamaica.

DETERMINATION

[4]       The panel finds that the claimant has satisfied the burden of establishing a serious possibility of persecution on a Convention ground if she were to return to Jamaica.

ANALYSIS

Identity

[5]       The claimant has established her identity as a national of Jamaica by her testimony and the supporting documentation filed, namely a copy of her Jamaican passport.3 The original document is in custody of Immigration, Refugees Citizenship Canada (IRCC) officials.4

Credibility

[6]       The panel found the claimant to be a credible witness on a balance of probabilities and the panel therefore accepts what has been alleged in support of her claim. The claimant testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between the testimony and the other evidence before the panel.

[7]       The claimant explained about the culture of homophobia in Jamaica, how the LGBTQ community functions in a homophobic society and how life was really difficult for her as a lesbian in Jamaica. She explained how she was treated differently in her family and how her father and siblings called her names. She stated that she received the same treatments at school and the community. She explained that while at school, students would confront her verbally and assault her physically and that she was reprimanded when she reported these assaults to the teachers in the school.

[8]       The claimant explained that she became worried after personally seeing how gay persons were treated in Jamaica and that she did not have a same-sex relationship because of her fear of being harmed in Jamaica. She stated that her mother encouraged her to date men and that she tried to date men but she could not.

[9]       The claimant explained that while at the [XXX] school, she met a [XXX] teacher (Ms [XXX]), who noticed that she always kept to herself and that she was different from other girls in the school. She stated that Ms [XXX] met her parents and advised them to allow her go to a country where she would be free to be who she really wants to be. She stated that her parents were worried about her safety even though they were not happy about her sexual orientation. The claimant explained that based on Ms. [XXX]’ s advice, her mother reached out to her sister (the claimant’s aunt) in Canada and she was invited to Canada by her aunt.

[10]     The claimant testified about her current relationship and she testified with the detail and emotion that one would expect in describing such a relationship. The claimant’s same-sex partner provided a letter of support and also testified in person to provide evidence about their same-sex relationship and knowledge of the principal claimant’s sexual orientation as a lesbian.5 The panel, on a balance of probabilities found the witness testimony to be credible.

[11]     The claimant disclosed corroborative evidence which includes a support letter from her mother, who confirmed the claimant’s circumstances in Jamaica and her sexual orientation as a lesbian. She provided copies of her academic diploma, which includes her early childhood diploma from the [XXX] college in Jamaica, the school where she met Ms. [XXX]. The claimant also provided several probative pictures of herself and her current same-sex partners at community and social events including LGBT events. The claimant provided copies of text messages exchanged between the claimant and her current same-sex partner in Canada. In addition, a welcome letter of support, identification and attendance log sheet from The 519 community center was provided to the panel to support the claimant’s involvement in the LGBT community in Canada.

Delay in Claiming

[12]     The panel had some concerns regarding the principal claimant’s subjective fear due to her delay in claiming in Canada. In response to her delay in claiming in Canada, the claimant stated that she applied for a visa extension and it was denied. She stated that upon denial, she went with her aunt to an agent, who advised the claimant to make a Humanitarian and Compassionate claim. She stated that she signed some papers with the agent but the agent did not process the Humanitarian and Compassionate application. The claimant further stated that she did not know that she could make a refugee application because of her sexual orientation and that she only found out about making a refugee claim when she started interacting with the LGBTQ community and she was introduced to her current representative.

[13]     The panel accepts the explanation provided by the claimant because she made efforts to remain in Canada permanently and draws no negative inference in regards to the claimant’s subjective fear.

[14]     The panel finds, on a balance of probabilities, that the claimant is credible and the panel accepts her allegations as credible and the claimant has established her subjective fear.

Objective Evidence

[15]     The panel also finds that the claimant’s fear of harm in Jamaica because of her sexual orientation as a lesbian woman is supported by the documentary evidence.

Jamaica

[16]     The objective documentary evidence indicates that, according to sources, same-sex acts between men are criminalised in Jamaica. While sources report that same-sex acts between women are not criminalised in Jamaica, the US Department of State’s Country Reports on Human Rights Practices for 2016 specifies:

“[t]he law prohibits ‘acts of gross indecency’ ([which are] generally interpreted as any kind of physical intimacy) between persons of the same-sex.”6 Further, according to sources “despite a lack of enforcement, the existence of these laws creates a climate that sanctions violence and discrimination against sexual minorities.”7

[17]     The documentary evidence speaks to the societal attitudes and discrimination in Jamaica against members of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community. According to the Country Reports on Human Rights Practices for 2016, homophobia is “widespread” in Jamaica.8 Furthermore:

other sources note that homophobia continues to be perpetuated by the country’s music, political and religious figures and by the media. According to Human Rights First, sexual minorities “face both general societal discrimination as well as discrimination in access to services, including healthcare, housing and employment.” [citations omitted]9

[18]     The documentary evidence indicates that violence and harassment against sexual minorities continue to be problems in Jamaica:

Human Rights Watch … states that physical and sexual violence is “part of the lived reality” for many members of sexual minorities and that “the level of brutality leads many to fear what could happen if their sexual orientation or gender identity is disclosed.”10

[19]     Based on the claimant’s testimony on her personal experiences and the documentary evidence cited above, the panel finds the claimant’s fear of return to Jamaica to be objectively well founded.

State Protection and an Internal Flight Alternative

[20]     The objective evidence supports the reasonableness of the claimant’s allegations and the conclusion that state protection would not be reasonably forthcoming in this particular case. With respect to the claimant’s profile as a lesbian woman, the panel finds that state protection would not be reasonably forthcoming to her.

[21]     The documentary evidence confirms that “citizens express mistrust towards the police and their effectiveness.”11 Further sources indicate:

“bias based specifically on gender identity or sexual orientation directly contributes to the inadequate police response”. Following interviews with LGBT persons in 2013, Human Rights Watch notes that most respondents indicated that they did not report incidents of violence to the police because they believed that police would not take any action…. [W]hile individual police officers “showed sympathy” and worked on cases involving sexual minorities, NGOs [non-governmental organizations] reported that “the police force, in general, did not recognize the extent and seriousness of bullying and violence directed against members of the LGBT community and failed to investigate such incidents.”

[22]     The documentary evidence also indicates “that police officers have perpetrated violence against sexual minorities themselves.”12 Further, according to the Inter-American Commission on Human Rights:

“[p]etitioners reported abuse and discrimination against LGBTI individuals who were either ignored or laughed at when they attempted to report acts of violence, or were themselves the direct victims of police abuse, including arbitrary detention, blackmail, extortion, threats and cruel and degrading treatment.”13

Human Rights Watch noted “that while cases of police violence appear to have decreased between 2004 and 2014, ‘the persistence of even isolated cases is of great concern given the police’s role as a source of protection. “‘14

[23]     I have considered whether there is a viable internal flight alternative for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Jamaica since homophobia as per the Department of State report is widespread.15

CONCLUSION

[24]     For the foregoing reasons the panel concludes that the claimant would face a serious possibility of persecution on the basis of her sexual orientation should she return to the Jamaica. Accordingly, the claim is accepted under Section 96 of the IRPA.

(signed)           O. Adeoye

January 29, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended.
2 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
3 Exhibit 1.
4 Exhibit 1, Notice of Seizure.
5 Exhibit 9.
6 Exhibit 3, National Documentation Package (NDP) for Jamaica (31 March 2017), item 2.1.
7 Exhibit 3, NDP for Jamaica (31 March 2017), item 6.1.
8 Exhibit 3, NDP for Jamaica (31 March 2017), item 2.1.
9 Exhibit 3, NDP for Jamaica (31 March 2017), item 6.1.
10 Ibid.
11 Exhibit 4, NDP for Jamaica (31 March 2017), item 6.1.
12 Exhibit 4, NDP for Jamaica (31 March 2017), item 6.1.
13 Ibid.
14 Ibid.
15 Exhibit 3, National Documentation Package, Item 2.1, Jamaica. Country Reports on Human Rights Practices for 2015, United States. Department of State, 13 April 2016.