Citation: 2020 RLLR 114
Tribunal: Refugee Protection Division
Date of Decision: October 19, 2020
Panel: Christine Medycky
Counsel for the Claimant(s): Aleksandar Jeremic
Country: Turkey
RPD Number: TB9-35318
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000192-000202
REASONS FOR DECISION
INTRODUCTION
[1] [XXX], a citizen of Turkey, is claiming refugee protection pursuant to sections 96(1) and 97(1) of the Immigration and Refugee Protection Action.[1]
[2] As this claim is based on sexual orientation, I have taken into consideration at the hearing and in rendering my decision, the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.[2]
[3] The purpose of the Guideline is to help decision-makers better understand cases involving sexual orientation, gender identity and expression (SOGIE) and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms. It addresses a number of issues, including the unique challenges individuals with diverse SOGIE face in establishing their SOGIE, and in presenting their refugee claims, the danger of stereotyping and inappropriate assumptions, as well as, what to consider when assessing credibility and evidence.
DETERMINATION
[4] Having considered the totality of the evidence, I find that the claimant is a Convention refugee for the following reasons.
ALLEGATIONS
[5] The details of the allegations are fully set out in the claimant’s Basis of Claim Form (BOC).[3] To summarize, the claimant alleges a fear of persecution at the hands of his family, society at large and the state authorities in Turkey, due to his sexual orientation as a gay person.
ANALYSIS
Identity
[6] The claimant’s personal and national identities were established, on a balance of probabilities, by his Turkish passport, certified true copy of which was provided by the Minister.[4]
Nexus
[7] I find that there is a connection between the persecution that the claimant fears and the Convention ground of membership in a particular social group, namely that of gay men in Turkey.
[8] I find the claimant to be a credible witness. His testimony was straight-forward, detailed and frank. The claimant did not embellish. There were no discrepancies, contradictions, or omissions in the claimant’s oral and documentary evidence, that went to the core of the claim. Therefore, on a balance of probabilities, I accept that the claimant has established he is a gay man.
Background and self-identification
[9] The claimant recounted that he comes from a family that is middle class and religious. His father is the head of the family, his mother is a housewife. The claimant has two older sisters whose marriages were arranged. The claimant self-identifies as a gay man. When asked what this term means to him, he stated that the meaning is different in Canada than in Turkey. In Turkey, he said it is synonymous to being “in prison” because there you cannot express your homosexuality openly, you must hide it and live your life “behind the scene” because it is unsafe to do so in public.
[10] He testified that he started to feel different around the age of 9 or 10 but did not understand why at the time. When he asked his mother what the homosexual meant, a word he had heard on the television, she replied that he did not need to know and not to ask her such things. In his community, people were warned to keep their children away from homosexuals because they have no morals, are ill, and spread disease.
First experiences
[11] The claimant was able to describe his first romantic encounters with the same sex. He was particularly affected by his experience with a high school student from another city. He provided details on how they met, what attracted him to the student, and where their ‘encounter’ took place. He was also able to express his emotions when the student’s cousin walked in on them, and describe the injuries he suffered as a result of the ensuing scuffle and how it explained them to his parents when he arrived back home. The claimant stated that after this incident he closed his Facebook account and changed his SIM card for his mobile to prevent from his friend’s cousin from finding him.
[12] I asked the claimant if he had ever disclosed to anyone in Turkey that he was gay, and he replied that he confided his secret to a close high school friend, but only after she had divulged to him that she was a lesbian. This was confirmed in a letter from the said friend. Otherwise, he concealed his sexual orientation. I questioned him why he had not opened up to his more liberal aunt who lived in a different city than his parents, and he replied that although she was more liberal, she was still homophobic. He did not trust her to keep his secret and feared the potential repercussions he would suffer at the hands of his family, especially his father, if she told them he was gay.
[13] The claimant testified that he some sexual relations with men during his university days, however he said they were not serious or long-term relationships.
Incident of abuse
[14] The claimant stated that on two occasions he was verbally and/or physically assaulted due to his sexual orientation. The first occurred at an eatery in Istanbul where he and his lesbian friend were accosted by men shouting, “People should be burned alive. Your women look like men and your men look like women. Because of you people the world is going to end soon.” Other patrons joined in. The owner sensing trouble asked them to leave. Angered by what happened, his friend called the police. The police came, but did nothing, they just told them to go to another café. A few months later his lesbian friend was violently attacked in Istanbul and required hospitalization. The friend confirmed what happened at the eatery and the attack on her in a letter submitted into evidence.[5]
Long-term relationship
[15] The claimant engaged in a long-term relationship with a man in Istanbul. The claimant moved to Canada with this man to pursue English language studies. After the relationship broke down, the man threatened to reveal the claimant’s sexual orientation to his family.
Confrontation with father
[16] The claimant testified that his father called him on [XXX] 2019. He wanted to know where his son was. When the claimant told him he was in Canada, the father became angry and said, “you go to Canada and sleep with men?” He had heard about his sones “bad habits” from his friend and had seen photos. The claimant’s father told him the that he would purchase a ticket for him to return to Turkey and that once he was back in the village “we will solve your problems there”.
[17] The claimant testified that his father said he would bury him alive and once he knew his son had disappeared, he would kill himself because his son had dishonoured him, and he could not face people. The claimant said that his father was screaming and swearing at him on the telephone and that he hung up on him and has not spoken to him since. He changed his telephone number so his father could not reach him. He does however communicate with his eldest sister, with whom he is the closest, once a month to get updates on the situation at home, but that she deletes his number after each call. The claimant filed a claim in Canada for refugee protection on [XXX] 2019.[6]
[18] As to his involvement in the LGBT community in Canada, the claimant said he had registered with an LGBT NGO for a training but did completed it due to the COVID pandemic.
[19] I accept on a balance of probabilities that the claimant has a subjective fear of persecution.
Objective Basis
[20] Furthermore, I find on a balance of probabilities, that the claimant’s subjective fear has an objective basis.
Worsening situation
[21] According to the National Documentation Package and country conditions documentation submitted by counsel, homosexuality has been decriminalized in Turkey since 1858 and for many years the LGBTI community enjoyed much freedom. However, the situation has worsened since the 70s when a succession of conservative governments came into power and systemically targeted the LGBTI community with repressive measures.[7]
[22] Today, the situation of sexual minorities lags behind the standards of the European Union and the United Nations. Consequently, LGBT people in Turkey face discrimination, violence – both physical and emotional, stigmatization and marginalization.[8]
Freedom of assembly
[23] Following an attempted coup on 15 July 2016, the Turkish Government declared a state of emergency. During this period, human rights and fundamental freedoms were severely restricted or suspended. A ban was imposed on public assemblies and activities of various civil society organizations.
[24] In November 2017, Ankara’s governor imposed an indefinite ban on events organized by LGBTI associations because they risked “inciting hatred and enmity” and therefore the ban was needed to “prevent crimes being committed”, “protect public health and morality” and “protect other people’s rights and freedoms.” Pride events are also banned in Istanbul, Izmir, Antalya and Mersin. The NGOs Kos GL and Pink Life unsuccessfully challenged the ban in local administrative courts. Appeals to regional administrative court and to the Constitutional Court are pending. The ban violates Turkey’s national and International obligations to respect and protect rights to equality before the law and freedom of peaceful expression and association.
[25] The impact of the ban is that it stigmatizes and marginalizes LGBTI people and makes them very vulnerable to attacks. LGBTI people are cast as immoral and criminals. As a result of this, many experienced LGBTI activists have sought asylum abroad.[9]
Perception and Attitude of Turkish Society
[26] Although founded as a secular state, traditional Islamic values are deep-rooted in Turkey’s government and society. Turkish society is patriarchal and gender roles are clearly defined. While homosexuality is not banned in Turkey, it is largely viewed as immoral and unnatural behaviour. A global study conducted by Pew Research Center in 2013 reports that acceptance of homosexuality in Turkey remains at a mere 9 percent.
[27] The conservative AKP government considers the family to be the primary social institution and sees its values and traditions as essential to nation building and maintaining peace. Modem values are thus perceived as a threat to the disintegration of traditional social values. A majority of politicians do not support the LGBTI cause because this does not align with the values and morals of Turkish society. The Minister for Women and Family Affairs has publicly referred to homosexuality as “a biological disturbance” or ”disease and biological disorder in need of treatment”.[10]
[28] Furthermore, articles submitted by the claimant report that President Erdogan is tapping into strong nationalist and religious groups to bolster the sagging popularity of the AKP. In June 2019, Ali Erbas, who leads the Religious Affairs Directorate in Turkey, preached in a televised sermon on the coronavirus outbreak condemning homosexuality because it brings illness and decay. The head of the Turkish Red Crescent made a homophobic tweet in July of this year, which was sharply rebuked by the International Federation of Red Cross and Red Crescent Societies.[11]
Honour Killings
[29] So adverse is Turkish society to sexual minorities that many LGBTI individuals are killed by members of their own family for having ‘brought shame ‘to the family. Two well publicized cases of “honour killing” are that of 18-year old Ahmet Yildiz killed by his father in 2008, and 17-year old Rosen Cicek murdered in 2012 by his father and two uncles. LGBT advocacy groups closely followed the two trials and sought to become intervening parties in the proceedings. The courts rejected their requests. Honour killings are hard to document in Turkey because they are often covered up by families and police avoid investigating them.[12]
Discrimination
[30] Turkey does not have an anti-discrimination law perse, but anti-discrimination clauses are found in the Turkish constitution as well as various criminal, administrative and civil laws. The protected grounds explicitly enumerated differ from each other and are non-exhaustive.
[31] Sexual orientation and gender identity are not listed among the protected grounds in the Turkish Constitution or other laws for example (the Penal Code, Labour Law, Basic Law on National Education, Law on Civil Servants, Civil Code, Law on Social Services, Regulation on Minimum Wages). Therefore, LGBTI persons’ rights are neither guaranteed, nor specifically protected under Turkish law. This critical gap in the law, which allows the courts to make rulings to the disadvantage of LGBTI persons.
[32] The Human Rights and Equality Institution of Turkey (HREIT) is mandated to investigate, ex-officio or upon applications made, all allegations of discrimination and to render decisions on such cases. Both the European Commission and the UN Human Rights Committee have expressed concerns about the independence of the HREIT.
[33] In 2019, the HREIT rejected complaints by trans persons of discrimination in accessing accommodations and services. A study by Mustafa Ozturk found that most LGBTI hide their sexual orientation in the workplace for fear of discrimination and those who do ‘come out’ experience severe discrimination or are terminated.
[34] The European Commission has reported cases where police officers, teachers, bank personnel, and city workers that have lost their jobs due to their sexual orientation.[13]
Hate Crimes
[35] Hates crimes target people for who they are or are perceived to be. Although Turkey does have a law against hate crimes (Article 22 of the Turkish Penal Code), it does not include sexual orientation and gender identity as one of the protected grounds.
[36] The OSCE Office of Democratic Institutions and Human Rights (ODIHR) reported that Turkey’s law enforcement agencies do not record the bias motivations of hate crimes and that violations of human rights of LGBTI persons, gender-based violence, hate speech and crimes remain a matter of serious concern. Furthermore, the mainstream media under reports such crimes.
[37] The lack of explicit legal protection for LGBTI persons and persistent discrimination against them amounts to a tacit endorsement of discrimination and violence against LGBTI persons. The documentary evidence shows that between 2010 and 2014, 41 murders of LGBTI personas were motivated by hate. Hate-crimes are not thoroughly and promptly investigated and often under punished in Turkey.[14]
[38] Courts frequently reduce sentences for hate crimes against LGBTI persons by applying Article 29 of the Turkish Penal Code (“Any person who commits an offence in a state of anger or severe distress caused by an unjust act shall be sentenced to a penalty of imprisonment for a term of eighteen to twenty four years where the offence committed requires a penalty of aggravated life imprisonment and to a penalty of imprisonment for a term of twelve to eighteen years where the offence committed requires a penalty of life imprisonment.) The Penal Code does not define what an unjust act is.[15]
[39] Having considered all of the evidence, I find on a balance of probabilities, that the claimant’s fear of persecution is well-founded. He would not be able to live openly as a homosexual in Turkey where he faces a serious possibility of persecution, and it is unreasonable to expect him to conceal his sexual identity or expression, in order to live free of persecution.
State Protection
[40] As one of the agents of persecution is the Turkish state, adequate state protection is not available to the claimant.
Internal Flight Alternative
[41] Neither does the claimant have a viable internal flight alternative. Turkey is in control of all of its territories and consequently there is no place he can go in the country that is safe.
[42] Considering the totality of the evidence before me, I find that the claimant, [XXX], faces a serious possibility of persecution at the hands of his family, society at large and the state authorities, due to his sexual orientation as a gay person, if he returned to Turkey.
CONCLUSION
[43] To conclude, I find that the claimant is a Convention refugee and therefore his claim for asylum is accepted.
[1] Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1)
[2] Chairperson’s Guideline 9 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017
[3] Exhibit 2
[4] Exhibit 1
[5] Exhibit 4
[6] Exhibit 2
[7] Exhibit 3, s.6.2; Exhibit 5
[8] Exhibit 3, s..6.1; Exhibit 5
[9] Exhibit 3, s..6.1-4; Exhibit 5
[10] Exhibit 3, s..6.3; Exhibit 5
[11] Exhibit 5
[12] Exhibit 3, s.6.3
[13] Exhibit 3, s.6.3; Exhibit 5
[14] Exhibit 3, s.1.14, 2.1, 6.2
[15] Ibid