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All Countries Pakistan

2020 RLLR 172

Citation: 2020 RLLR 172
Tribunal: Refugee Protection Division
Date of Decision: January 9, 2020
Panel: Lesley Stalker
Counsel for the Claimant(s):
Country: Pakistan
RPD Number: VB9-03502
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000168-000172

— DECISION

[1]       PRESIDING MEMBER: This is a Bench decision of the Immigration and Refugee Board in the refugee claim of XXXX XXXX XXXX, file number VB9-03502. XXXX XXXX XXXX is a citizen of Pakistan who is claiming refugee protection pursuant ss. 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       In rendering my decision, I have considered the Chairperson’s guideline on proceedings before the Immigration and Refugee Board involving sexual orientation and gender identity and expression, more commonly known as the SOGI guidelines.

ALLEGATIONS

[3]       You detailed your allegations in your basis of claim form. You fear persecution in Pakistan at the hands of your father, civil society and state authorities given your sexual orientation as a bi-sexual man and your atheist beliefs.

DETERMINATION

[4]       I find that you are Convention refugee as you have established as a serious possibility of persecution in Pakistan on account of your membership in a particular social group, namely bi-sexual men.

ANALYSIS

Identity

[5]       I find that your identity as a national of Pakistan has been established by your testimony and by your passport, a certified true copy of which is on file.

Credibility

[6]       I find you to be a credible witness and, therefore, believe what you alleged in support of your claim. You testified in a straightforward manner and were spontaneous and you did not appear to exaggerate or embellish your claim.

[7]       When asked why you identify as a bi-sexual man, you explained that you are attracted to both men and women. You explained that this creates some isolation even within the LGBTQ community as you are neither fully accepted by the heterosexual community nor by the gay community. You said that when you sought support at Winnipeg’s Rainbow Resource Centre they questioned whether you might be confused about your sexuality.

[8]       You spoke movingly about your struggles to accept who you are and to love yourself. You are trying to overcome some of the early values that you learned about human sexuality and to come to terms with your family’s rejection of you.

[9]       You filed a number of documents which corroborate your allegations, these documents which are found in Exhibit 4 include letters from friends and acquaintances who confirm that you had spoken to them about your struggles with your sexuality.

[10]     Some of these letters indicate that you identified yourself as bi-sexual as early as 2016 or 2017. Some comment about the prevalence of homophobic remarks or jokes in their circle of friends which they believe affected your ability to disclose your sexuality more openly. On writer describes walking in on you in a compromising situation.

[11]     You filed a letter from the University of XXXX Student Counselling Centre which states that you spoke about your sexuality during a session in 2015 and about your fear for your safety if you return to Pakistan.

[12]     A recent letter from the XXXX XXXX Clinic indicates that you received an initial consultation with the clinic relating to XXXX XXXX XXXXand XXXX XXXX. Amongst the issues discussed was your fear that your father would disown you because of your atheism and your bi-sexuality. The clinic says that they referred you to a XXXX health centre for lower cost XXXX.

[13]     When asked why you call yourself an atheist, you testify that you do not believe in God and that you believe that religion was created as a tool to help greedy people attain political power.

[14]     Based on your testimony and the corroborative evidence before me, I find that you are a bi-sexual man and that you are an atheist.

Nexus

[15]     I find that the persecution you fear in Pakistan has a connection to two Convention grounds. First, your fear is based on your membership in a particular social group, namely bi-sexual men. Secondly, you have a fear of harm because of your atheist views which has a nexus to the Convention ground of religion.

[16]     As such, I have analyzed your claim under s. 96 of the Act.

Well-Founded Fear of Persecution

[17]     I find that you have established a well-founded fear of persecution by reason of your sexual orientation for the following reasons:

[18]     You testified that your father is a fundamentalist Muslim. Your father is your only surviving close relative as your mother passed away when you were 10. Your relationship with your father has long been difficult due to your clashing views on religion and sexuality. You asked when — you said that when you asked your father if it was wrong for the prophet to marry a 13-year-old girl, he became abusive and threatened to kill himself and your stepmother because of your blasphemist views. Your father arranged for an Imam to tutor you in Islamic studies. The Imam would beat you with sticks and other objects. You testified that your father also beat you with a cricket bat when you were 14 because you received a “XXXX” in religious studies.

[19]     You became aware that you were attracted to men when you were a teenager. You remember experiencing feelings of remorse, shame and denial after a relatively innocuous encounter and you tried to pray the incident away.

[20]     When you came to Canada, you were allowed to be more open about your sexuality. You described your burgeoning awareness, and this was in your basis of claim form, that you were an atheist. Until you came to Canada, your experience of religion was an abusive manipulative tool. You learned that in Canada you could publicly say that you did not believe in God without repercussion.

[21]     When a Pakistani friend of yours came to Canada to study he informed your father that you were defying Islamic values. Your father told you that you had been brainwashed and accused you of being a cafer (phonetic) and on one occasion he gathered a group of neighbours and uncles who called you and collectively advised you to tum back to religion.

[22]     You say that your father has cut off your funding and has disowned you. You have been receiving hate messages from people in Pakistan by Facebook and text message. You have blocked the senders but the messages that you filed in evidence illustrate the level of hatred that you face in Pakistan.

[23]     The country condition documents on Pakistan provide an objective basis to your claim. The documents demonstrate that same-sex relationships are illegal and societal discrimination is severe and widespread.

[24]     The UK Home Office Report on sexual orientation and gender identity, which is found at Tab 1.13 states that:

Section 377 of the Pakistan Penal Code does not explicitly refer to same-sex sexual activity but provides that “carnal intercourse against the order of nature”, is punishable by a fine or imprisonment for a period of two years to life

[25]     An IRB response to information report on violence against sexual minorities, found at Tab 6.5 of the NDP, points to alarming rates of violence against members of the LGBTQ community. The violence is perpetrated by family members as well as members of civil society. Homosexuality is seen as a threat to the family stability and to its reputation as well as a threat to religious integrity.

[26]     UK Home Office report also highlights the extent of violence against members of the LGBTQ community and its activists. Groups — fundamentalist groups such as the Pakistani Taliban engage in threats, assaults, murders and beheadings of members of the LGBTQ community.

[27]     US Department of State report on Pakistan found at Tab 2.1 of the NDP states that:

Consensual same-sex conduct is a criminal offence. The penalty is a fine from 2 years to life imprisonment. Lesbian, gay, bi-sexual male, transgender and intersect persons rarely reveal their sexual orientation or gender identity.

[28]     The DOS, D-O-S, report states that:

Violence and discrimination continues against LGBTI persons and police generally refuse to take action.

[29]     Based on the objective evidence before me including the fact that same-sex relations are criminalized in Pakistan’s penal code, I find that you could not live openly as a bi-sexual man and have same-sex relationships without encountering legal sanctions or discrimination that is persecutory in nature. I find that you have established an objectively well-founded fear of persecution by reason of your sexual identity.

State Protection

[30]     I find that adequate state protection would not be reasonably forthcoming in this particular case given that same-sex sexual acts are prohibited in Pakistan it would be unreasonable to expect a person identifying as bi-sexual to seek protection from the authorities. As such, I find that you have rebutted the presumption of state protection.

Internal Flight Alternative

[31]     I have considered whether a viable internal flight alternative exists for you. The UK Home Office report at Tab 1.13 of the NDP states as follows:

Given that homophobic attitudes are prevalent throughout the country and state protection is generally not available, there is unlikely to be any place in Pakistan to which an LGBTI person could reasonably relocate without making fundamental changes to their behaviour.

[32]     Based on the totality of the evidence before me, I find that there is a serious possibility of persecution throughout Pakistan as the IFA fails on the first prong of the IFA test. I find that there is no viable internal flight alternative for you in Pakistan.

[33]     Given my finding with respect to your fear of persecution because of your sexuality, I have not considered whether you might also face a risk of persecution as an atheist.

CONCLUSION

[34]     Based on the analysis above, I conclude that you are a Convention refugee and I accept your claim.

— DECISION CONCLUDED