Citation: 2020 RLLR 162
Tribunal: Refugee Protection Division
Date of Decision: November 12, 2020
Panel: Laura Lunasky
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Kenya
RPD Number: TB9-30268
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000152-000155
DECISION
[1] MEMBER: This is the decision for XXXX XXXX XXXX, file number TB9-30268. I’ve considered your testimony and the other evidence in your case and I’m ready to render a decision orally. You claim to be a citizen of Kenya. You are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act.
Determination
[2] For the reasons that follow, I find that you are a Convention refugee on the grounds of membership in a particular social group as a bisexual man.
Guidelines
[3] In deciding this claim, I have considered and applied the chairperson’s sexual orientation and gender identity expression guidelines.
Allegations
[4] Your allegations are found in your Basis of Claim form at Exhibit 2. To summarize, you allege that you face persecution at the hands of the state due to your sexual orientation.
Identity
[5] I find that your identity has been established on a balance of probabilities by your testimony and the certified copy of your Kenyan passport at Exhibit 1.
Nexus
[6] I find that there is a clear nexus between your fear and the Convention ground of membership in a particular social group as a bisexual man. I find that the test under s. 96, whether there was serious possibility of persecution should you return to Kenya, is met.
Credibility
[7] I find that you were a credible witness and I, therefore, accept your testimony and the statements you’ve made in your Basis of Claim. Your testimony was straightforward, very detailed, spontaneous, and mostly consistent with your Basis of Claim. I accept your explanation for the inconsistency in your testimony about the co-workers who saw you with another man in a party and outed you at work. I accept that you may have confused who said what at your two different workplaces. I accept that when asked about work, you focused on your later workplace and the co-worker who outed you there, as that was a more significant experience for you as you lost that job.
[8] You were able to provide detailed and credible testimony about your relationship with your current same sex partner, XXXX (ph), without any attempt to embellish. You were able to provide details about him and his life. You were able to provide details about your life as a bisexual man in Kenya, including the LGBTQ networks there and the negative experiences you had when you were outed at work.
[9] I also accept your explanation for the delay in leaving Kenya, that you’ve had a career there and you wanted to make it work. I accept your explanation for your delay in claiming, that you were originally planning to ask for permanent resident status on a spousal sponsorship before that relationship broke down and how you learned about refugee protection from your friend, XXXX (ph), just before you claimed. I note that you made a claim soon after learning of this option and within two months of separating from your former spouse.
[10] You testified credibly about your fear should you return to Kenya, that you would be detained or harassed by police or even killed. I, therefore, find it credible that you face a serious possibility of persecution from the Kenyan State. You’ve also provided several documents in support of your claim, including several detailed letters of support from your friends, former same-sex partner, XXXX (ph), and family members in Kenya, and a letter from your current partner.
[11] Since you have provided credible testimony as well as the corroborating documentation, I find that you have established on a balance of probability that you are bisexual. Accordingly, I find that you have established a subjective fear of persecution on a balance of probabilities.
Objective Basis
[12] I find that your fear of persecution has an objective basis. Items 2.3 and 6.1 of the National Documentation Package for Kenya state that sexual acts between people of the same sex are illegal and may be punished with imprisonment of up to 14 years under the laws of Kenya. The penal code criminalizes carnal knowledge against the order of nature, which was interpreted to prohibit consensual same-sex sexual activity and specifies a maximum penalty of 14 years imprisonment if convicted. Item 2.1 further stipulates that a separate statute specifically criminalizes sex between men and specifies a maximum penalty of 21 years imprisonment if convicted.
[13] The Freedom House report at Item 2.3 states that members of the LGBT community continue to face discrimination, abuse and violent attacks. The UN Committee of Economic, Social and Cultural Rights at Item 2.4 of the National Documentation Package has noted that lesbian, gay, bisexual, transgender, and intersex persons are stigmatized and socially excluded, as well as discriminated in gaining access to social services, particularly healthcare services.
[14] Since I have found you have — you to have a subjective fear and an objective basis for that fear, I find that you have established that you have a well-founded fear of persecution.
State Protection
[15] I find that you have established that there’s inadequate state protection available to you in Kenya as same-sex sexual acts are considered criminal and that the state authorities are the agents of persecution. I therefore find that you have provided clear and convincing evidence that the Kenyan state is unwilling and unable to provide adequate state protection.
Internal Flight Alternative
[16] I have also considered whether there is a viable internal flight alternative available to you. I find that you face a serious possibility of persecution throughout the country given that same-sex relations are illegal.
[17] Based on the totality of the evidence, I find that you have established a well-founded fear of persecution in Kenya because of your membership in a particular social group being a bisexual man. Accordingly, I find you are a Convention refugee.
[18] Your claim is accepted. Thank you.
CLAIMANT: Thank you so much.
COUNSEL: Thank you.
MEMBER: All right, so that concludes our hearing for today and I will go off the record.
——————–REASONS CONCLUDED ——————–