Citation: 2020 RLLR 112
Tribunal: Refugee Protection Division
Date of Decision: November 10, 2020
Panel: Mary Truemner
Counsel for the Claimant(s): Deryck Ramcharitar
Country: Kenya
RPD Number: TB9-29346
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000185-000187
DECISION
[1] MEMBER: These are my reasons for my decision granting the applicant’s — sorry, the claimant’s claim for refugee status in file number TB9-29346, the claim of [XXX].
[2] The claimant is a citizen of Kenya on claim that he is bisexual. He is seeking refugee protection in Canada pursuant to s. 96 of the Immigration and Refugee Protection Act.
[3] The allegations of the claim are found in the Basis of Claim form. In summary, the claimant fears persecution by homophobic family members and other homophobic people in the future in Kenya. He claims that he cannot live openly as a bisexual man in Kenya because homophobia is widespread. Even if he were to live in secret having relationships with men, he fears being discovered. Kenya has laws against sexual relationships between men.
[4] I find that the claimant has satisfied his burden of establishing a serious possibility of persecution on a Convention ground upon return to Kenya.
[5] The identity of the claimant is established on a balance of probabilities through the certified true copy of his passport currently held by the Canadian Border Service Agency, CBSA.
[6] Regarding credibility, 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 truth. The claimant testified about his marriage to a woman in Kenya with whom he had three children, but also about his bisexual relationships in the United Arab Emirates and later with a Kenyan lover where he took a holiday in Tanzania and with whom he had romantic relations in Kenyan before he fled to Canada with a visa. His testimony was consistent with the narrative in his BOC — or, substantially consistent.
[7] In 2004, the claimant had his first sexual relationship with a man, a work colleague in the United Arab Emirates, which put the claimant in peril there so that he stopped working in the UAE and returned to Kenya. Back in Kenya in 2016, he began an affair with another man, again a colleague, and was again put in peril because of it when vacationing with his lover in Tanzania. His family in Kenya found out about his lover and threatened his life for — and threatened the claimant’s life for bringing shame to the family. The claimant’s testimony was materially consistent with the Basis of Claim.
[8] He also produced at the hearing an email to an agency here in Toronto which supports his testimony about his identity as a bisexual man. Also, he had testify a witness, his uncle, to whom he fled in Canada. The uncle substantiated his circumstances as a married man in Kenya and talked about what support he gave to the claimant here in Toronto.
[9] While there were some inconsistencies in the claimant’s testimony, the Basis of Claim, and the claimant’s witness’ testimony, they were not material to the issue of whether he is bisexual, and the claimant’s explanations for the inconsistencies have satisfied me that he is telling the truth regarding his sexual orientation. I find that the claimant is generally credible and that on a balance of probabilities he is bisexual.
[10] The overall objective evidence supports the claim. The claimant’s testimony was consistent with descriptions in the NDP, Exhibit 3, of widespread discrimination against men in Kenya who have same-sex relations, while the most recent item on the issue, item 6.6 from the UK’s Home Office, April 2020, reports that discrimination is lessening, it is still taboo in many families and communities in which violence will flare up. I find that in the documentary evidence there is an objective basis for the claimant’s fear of persecution and his fear is well founded.
[11] As well, the criminal law prohibits same-sex sexual relations between men with a maximum penalty of 21 years in prison. Therefore, with regard to state protection, I find on a balance of probabilities that rather than being protected from assaults by homophobic attackers, it is more likely that the claimant reporting to authorities that he is gay would be at risk of prosecution and would unlikely be protected. Given that the laws of the state have criminalized sexual relations between men, I find that it would be objectively reasonable for the claimant to seek protection of the state in his circumstances.
[12] Regarding an internal flight alternative, I find there is nowhere for the claimant to live safely in Kenya given that the criminalization of sexual relationships between men affects the entire country. I find that there is a serious possibility of persecution throughout Kenya given the pervasive discrimination against gay couples and I find that there is no possibility of adequate state protection in any part of the country. Therefore, a viable IFA does not exist for the claimant who, although bisexual, has testified that he is essentially bisexual and is — and will behave as a bisexual man.
[13] Having considered all of the evidence, I find on a balance of probabilities that the claimant is bisexual and given his profile, there is a serious possibility that he would face persecution with inadequate protection if he were to return to Kenya.
——————–REASONS CONCLUDED ——————–