Citation: 2020 RLLR 102
Tribunal: Refugee Protection Division
Date of Decision: November 26, 2020
Panel: Sarah Acker
Counsel for the Claimant(s): Marianne B Lithwick
Country: Ghana
RPD Number: TB8-30911
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000126-000135
REASONS FOR DECISION
[1] [XXX] (hereafter, “the claimant”) is a [XXX]-year old citizen of Ghana. He claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).[1]
ALLEGATIONS
[2] The claimant’s allegations are found in his Basis of Claim (“BOC”) form[2] and amended BOC forms.[3] In summary, the claimant fears persecution by the Ghanaian police and his community, particularly in the form of mob violence, on account of his sexual orientation as a bisexual man. The claimant fears that if he returns to Ghana he will be persecuted and/or killed.
DETERMINATION
[3] The panel finds that the claimant has established that he faces a serious possibility of persecution on a Convention ground, namely, his membership in a particular social group – individuals with non-heteronormative sexual orientations – upon return to Ghana.
[4] In making this determination, the panel has considered the Chairperson’s Guideline 9: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression (“SOGIE”).[4]
ANALYSIS
Identity
[5] The identity of the claimant has been established on a balance of probabilities through the certified true copy of his Ghanaian passport that was seized by the Minister,[5] in addition to a copy of his Ghanaian birth certificate.[6]
Credibility
[6] When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their veracity.
[7] Having reviewed all the evidence, the panel finds, on a balance of probabilities, that the claimant identifies as bisexual and fears persecution because of his sexual orientation if he returns to Ghana. While the panel also had credibility concerns about other parts of the claimant’s evidence, those concerns did not outweigh the allegations that were proven on a balance of probabilities. Given that the claimant has credibly made out key allegations and established a subjective fear of persecution, the other concerns are not determinative.
The claimant identifies as a bisexual man
[8] The claimant testified credibly about his relationship with his long-time same sex partner,
W.Y. The claimant met W.Y. when he was 9 years old through their mutual love for soccer, and grew up playing soccer together; they were the closest of friends. Eventually, their relationship became intimate when the claimant turned 15 years old. The claimant testified that even after their relationship became sexual, it took time for the two men to verbally acknowledge the nature of their relationship and express their feelings to one another. The claimant said that he was shy and needed to build up courage to tell W.Y. that he had feelings for him. When W.Y. said those feelings were reciprocal, the claimant was overwhelmed with happiness. The claimant submitted photos of himself and W.Y. attending community weddings together and in their soccer jerseys in support of his claim.[7] The claimant testified to the content of these photos spontaneously and clearly. The panel finds the photographic evidence of their relationship credible.
[9] The claimant spontaneously and clearly provided details about his relationship with W.Y. that were not found in his BOC forms. The claimant described W.Y.’s love of dance and music and W.Y.’s unparalleled ability to calm the claimant down and lift his spirits when he was feeling upset. The claimant described a physical and emotional attraction to his partner, and explained that he and W.Y. had a lot in common including their professional involvement in soccer and their religious upbringing. The claimant also testified credibly about the steps he and W.Y. took to hide their relationship, including their carefully timed visits, the claimant’s marriage to a woman, and their use of football’s masculine image in Ghana to hide their sexual orientations.
[10] Therefore, the panel finds, on a balance of probabilities, that the claimant has established that he identifies as a bisexual man and was involved in an intimate relationship with a man in Ghana named W.Y.
The claimant has a subjective fear of being persecuted in Ghana on account of his sexual orientation
[11] The claimant testified spontaneously about his country and community’s views towards homosexuality. When the panel asked the claimant about his upbringing, he explained that he and his family were deeply religious Muslims and there were rules dictating behavioural “do’s and don’t’s.” When the panel asked the claimant for an example of those “do’s and don’t’s,” the claimant immediately answered that a “don’t” includes two men sleeping together. The claimant explained that he was given a religious education as a young man, and learned that the Bible and Quran view male homosexual relationships as blasphemous and punish such behaviour by stoning. While the claimant never personally viewed members of the gay community being persecuted, he heard about instances of mob and police violence against gay people on the radio and in the newspapers. The claimant said that one radio station reported an instance of police violence against a gay individual and the commentators laughed during their reporting and agreed with the police abuse. The claimant added that both Christians and Muslims preached against homosexuality in his community.
[12] The panel asked the claimant why he did not make a claim for asylum in the United States when he was contracted to [XXX] in [XXX] from [XXX] to [XXX] of 2018.[8] The claimant answered that, during that time, he was on a work visa to [XXX]. He had not experienced any persecution because of his sexuality in Ghana and did not think anyone at home would discover him and W.Y. The claimant added that he did not even know about the concept of “asylum” at the time and the thought of seeking that kind of protection did not come to his mind.
[13] The panel finds this explanation reasonable. In 2018, the claimant was a young man looking to further his [XXX]. He was in love with his same-sex partner in Ghana, had taken steps to hide this relationship from everyone he knew, and did not think he would be discovered. Therefore, the panel does not draw a negative credibility inference with respect to the claimant’s failure to make an asylum claim in the United States during his time in [XXX].
[14] The panel asked the claimant why he did not make an asylum claim in Chicago upon his arrival there in [XXX] 2018 after fleeing persecution in Ghana. The claimant testified that he was staying with a Ghanaian friend in Chicago, and although he was in the United States he was surrounded by the Ghanaian expatriate community and did not feel safe telling them why he left Ghana. The claimant said that he did not know anything about the formal process of seeking asylum when he arrived in the United States, and his primary objective was to leave Ghana for his personal safety. Once in Chicago, the claimant began researching how to be safe as an individual with a non-heteronormative sexual orientation and he found a Canadian Pride Parade website and reasoned that Canada would protect him. This is the reason he came to Canada for protection.
[15] The panel finds this explanation reasonable. At the time he fled Ghana, the claimant was a [XXX]-year old man. He testified that he stopped his studies at the age of [XXX] in order to pursue his soccer career. The claimant had no background in law and was not aware of the concept of “asylum” until he crossed the Canadian border and border services agents directed him to a lawyer. The claimant testified that he feared for his safety while staying with his friend in the United States because his friend’s community was Ghanaian. For that reason, the claimant did not perceive his situation in the United States as safe and sought refuge approximately two and a half months later in Canada. Given the claimant’s explanation, age, and level of education, the panel does not draw a negative credibility inference with respect to the claimant’s failure to seek asylum during his time in the United States from [XXX] to [XXX] of 2018.
[16] The panel finds, on a balance of probabilities, that the claimant was so fearful of being persecuted on account of his sexual orientation in Ghana that he did not even feel safe in the United States because he was living among the Ghanaian expatriate community.
[17] After assessing the claimant’s evidence about how the Ghanaian government and his community treat members of the gay community, the panel finds, on a balance of probabilities, that the claimant has a subjective fear of persecution in Ghana on account of his identity as a bisexual man. As a result, this claim is being assessed under s. 96 of the IRPA, and the panel finds the claimant has established a nexus to a convention ground, namely, his membership m a particular social group – individuals with non-heteronormative sexual orientations.
[18] While the panel had credibility concerns about how the claimant lost contact with W.Y. and the details surrounding how the claimant’s relationship with W.Y. was discovered, these concerns were insufficient to overcome the findings that the claimant was in a relationship with W.Y. and that he has made out his sexual orientation on a balance of probabilities.
OBJECTIVE EVIDENCE
[19] The objective evidence in this case supports the claimant’s allegations.
[20] Section 104 of the Ghanaian Criminal Code (“the Code”) criminalizes same-sex conduct between consenting adults, and refers to such conduct as “unnatural carnal knowledge.” Consensual same-sex intimacy with an individual over 16 years old is categorised as a misdemeanour, with a sentence of up to 3 years’ imprisonment.[9]
[21] Prominent Ghanaian politicians have voiced their opposition to and disdain for the gay community. In February and July of 2017, the Speaker of Parliament, Professor Mike Ocquaye, referred to homosexuality as an “abomination” and called for stricter laws against same-sex conduct.[10] During a radio interview in April 2018, the Second Deputy Speaker of Parliament, Alban Bagbin, said that “homosexuality is worse than [an] atomic bomb.”[11] In March 2020, an organizer for the main opposition party in Ghana, the National Democratic Congress, said: “Homosexuality is a disease. In veterinary [medicine] you don’t have to condone homosexuality; you have to kill all animals that attempt same-sex mating. Why should we humans do that?”.[12]
[22] Homophobic rhetoric is not limited to national and local government officials – it pervades Catholic, Evangelical, Islamic, and traditional religious institutions as well as Ghanaian media outlets. While these forces, along with the criminalization of same-sex activity in Ghana, rarely lead to prosecution of gay individuals, they contribute to a climate of discrimination, violence, arrests, threats, and punishment of the gay community both in public and private settings.[13]
[23] With respect to persecution of gay individuals in the private setting, the National Documentation Package (“NDP”) for Ghana, Item 6.2, documents numerous instances of parents disowning their children and forcing them out of their family homes upon discovering their sexual orientation. This aligns with the claimant’s evidence that, since his sexual orientation became known in his community, the claimant has lost contact with his parents due to their anger towards him for “shaming” his family due to his sexual orientation. Counsel submitted country documentation from February 2020, found in Exhibit 7, wherein the Ashanti Region Chief Imam, Sheikh Muumin Abdul Haroun, described homosexuality as an “evil that must not be countenanced in any way because it is despised by God.” This evidence also aligns with the claimant’s testimony about the deep-seated homophobia in his masque and Muslim community.
[24] NDP Item 6.2 documents instances of violence perpetrated against members or perceived members of the gay community. In January 2016, a mob of students at a high school in Kumasi, the claimant’s home town, attempted to lynch three male students who were accused of engaging in homosexuality. The attackers were armed with clubs, machetes, and stones. The school responded by expelling the three intended victims. According to NDP Item 6.6, in August 2019 police briefly detained a young man reporting a robbery because the man mentioned he was gay.[14] In August 2014, a mob in Walewale threatened to lynch a 21-year old male student because he was gay. Police responded by arresting the intended victim.[15] An article submitted by counsel notes that, as recently as October 2020, a mob stormed an area of Accra armed with machetes, stones, and sticks in search of a suspected gay person, and the mob leader said: “We want to make Ghana a hell for gay practitioners and their supporters.”[16]
[25] The panel therefore finds, on a balance of probabilities, that the claimant’s subjective fear of persecution in Ghana on account of his identity as a bisexual man has an objective basis, and is well-founded.
STATE PROTECTION
[26] There is a presumption that a state can protect its citizens unless the state is in a situation of complete breakdown. A claimant can rebut this presumption with clear and convincing evidence to the contrary.
[27] In this case, the agent of persecution is the state because the forward-facing persecution the claimant would face in Ghana is, in part, at the hands of state authorities – that is, members and supports of the Ghanaian government and police force.
[28] The NDP reflects mixed evidence with respect to the availability of state protection for members of the gay community. Item 6.6 states that certain individuals in the Ghanaian Police Force have made efforts to protect members of the gay community, such as Assistant Commissioner of Police Jones Blantari.[17] The NDP adds that some gay rights activists have noted that police attitudes towards protecting members of the gay community are slowly changing, “with community members feeling more comfortable with certain police officers whom they could turn [to] for assistance” [emphasis added].[18]
[29] However, despite evidence of individual members of the Ghanaian police force making positive efforts to protect members of the gay community, the objective country evidence depicts an overall lack of adequate state protection for members of the gay community in Ghana.
[30] NDP Item 6.6 indicates that, as recently as 2019, there were reports of police reluctance to investigate claims of assault or violence against members of the gay community. While there were no reported cases of police or government violence against members of the gay community in 2019, the NDP notes that stigma, intimidation, and the attitude of the police toward gay persons were factors in preventing victims from reporting incidents of abuse.[19] Other reports cited instances of members of the gay community being arbitrarily arrested by police when seeking their help, and being subject to extortion as well as sexual and physical abuse by police.[20]
[31] Based on the claimant’s personal circumstances as well as the objective country documentation, the panel finds, on a balance of probabilities, that the claimant has rebutted the presumption of state protection with clear and convincing evidence. As someone who identifies as bisexual, there is no state protection available to the claimant in Ghana.
INTERNAL FLIGHT ALTERNATIVE
[32] The panel has also considered whether a viable internal flight alternative exists for the claimant.
[33] Given that the state is one of the agents of persecution, that homosexual activity between consenting adults is criminalized in Ghana, and there is no objective evidence that shows the state does not have control over the entire country of Ghana, the panel finds, on a balance of probabilities, that the claimant would face a serious possibility of persecution throughout Ghana and therefore a viable internal flight alternative does not exist for him.
CONCLUSION
[34] The claimant testified credibly that he identifies as a bisexual man and spent many years in a same sex relationship with a fellow soccer player, W.Y. The claimant also provided reasonable explanations about why he did not make asylum claims in the United States. While the panel had credibility concerns with certain parts of the claimant’s evidence, those concerns did not speak to the heart of the claim and were not sufficient to rebut the presumption of truth in this case.
[35] Having considered the claimant’s testimony, the supporting evidence presented, and the objective evidence, the panel finds there is a serious possibility that the claimant would face persecution at the hands of the Ghanaian state, its agents, his family, community, and the Ghanian community at large if he returned to Ghana.
[36] For the aforementioned reasons, the panel concludes that the claimant is a Convention refugee pursuant to s. 96 IRPA.
[37] Therefore, the claim is accepted.
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
[2] Consolidated List of Documents (CLOD), Exhibit 2.
[3] CLOD, Exhibits 5, 10.
[4] Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.
[5] CLOD, Exhibit 1
[6] CLOD, Exhibit 6, p.1.
[7] CLOD, Exhibit 6, pp. 4-12, 32-33.
[8] The claimant provided evidence to support his employment as a [XXX] in [XXX] during this time. See CLOD, Exhibit 6, pp.23-30.
[9] National Documentation Package (“NDP”) for Ghana, dated 30 March 2020, Item 6.6.
[10] Ghana NDP, Item 6.1.
[11] Ghana NDP, Item 6.6
[12] Ghana NDP, Item 6.4.
[13] Ghana NDP, Items 6.1, 6.2.
[14] Ghana NDP, Item 6.6.
[15] Ghana NDP, Item 6.2.
[16] CLOD, Exhibit 9, pp. 5-7.
[17] Ghana NDP, Item 6.6, p. 24.
[18] Ibid.
[19] Ghana NDP, Item 6.6.
[20] Ghana NDP, Items 6.3, 6.4.