Citation: 2020 RLLR 88
Tribunal: Refugee Protection Division
Date of Decision: August 28, 2020
Panel: Kerry Cundal
Counsel for the Claimant(s): Bashir A. Khan
Country: Kenya
RPD Number: VB9-09240
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000186-000191
DECISION
[1] MEMBER: Okay, welcome back, we’re now on the record again. Okay, good news, I am going to accept your claim, okay? And I’m going to give you my decision and reasons for doing so today, okay?
[2] All right, so it’s the beginning of the next chapter, I’ll give you the decision and reasons now.
[3] This is the decision of the Refugee Protection Division in the claim of [XXX], a citizen of Kenya, who is claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act. Your identity has been established on a balance of probabilities by a copy of your Kenyan passport found at Exhibit 2.
ALLEGATIONS:
[4] You fear return to Kenya because you fear persecution, including death threats and imprisonment because of your sexual orientation as a gay man. You left in [XXX] of 2019 and travelled directly to Canada. You provided significant details in your Basis of Claim form. Your passport is at Exhibit 1, and your Basis of Claim form is at Exhibit 2. I will highlight some of your details of your narrative and testimony today in this decision. I have also reviewed and applied the Chairperson’s Guideline Nine, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. And in particular I am mindful of the socio-cultural context of a sexual minority who has lived in a country where same sex activities are criminalized, and societal violence continues today against sexual minorities in Kenya.
DETERMINATION:
[5] I find that you have established that you are a Convention refugee pursuant to Section 96 of the Act for the reasons that follow.
ANALYSIS:
Credibility
[6] You testified in a straightforward and consistent manner today, and I find that you are a credible witness.
Well-founded Fear of Persecution and Nexus
[7] As I’ve indicated, you’ve testified in a straightforward manner today. You provided details with respect to your sexual orientation in particular. You gave details about your relationship with [XXX], which was a long-term relationship of approximately 11 years. You testified that you met [XXX] while you were both working for [XXX]. You testified that you and [XXX] kept this relationship secret because it’s illegal to be in an open gay relationship in Kenya. You testified that you would do weekend trips together, go watch rugby games together. You testified that your wife, [XXX], did not know about this. You testified that you married [XXX] in 2018, but you had known her and been with her since 2007, and your son with [XXX] was born in [XXX]. You testified that your understanding is that [XXX] did not, although she had suspicions, she did not fully know that you were gay until after you had already arrived in Canada when she understood why you had left Kenya.
[8] You testified that your career was going well and that you had a good life in Kenya. But as a result of threats, extortion, blackmail, from your former boyfriend, [XXX], that the threats became so significant up until before you left in 2019, that you feared for your life.
[9] You also testified that one of the threats that you returned by text was a photo of your son and an indication that the texter (ph) knew that – where your son went to school. And at that point you testified you understood that these threats were very serious. And you testified that the relationship ended with [XXX] in 2011, and subsequent to that [XXX] would ask you for money, as you testified he considered that you should look after him, paying rent, buying things for him, or he would threaten to out you or tell others that you were gay. And so out of fear you continued to financially support [XXX] over the years.
[10] You testified that you later learned that [XXX] was part of a larger group that was involved in extortion and threats against sexual minorities in terms of outing them if they did not pay rent according to the demand.
[11] You also provided genuine testimony today regarding your life experience as a gay man in Kenya, and the fears that you had in terms of making sure that no one ever knew about your sexual orientation. You testified about the struggles that you had in coming to Canada. You testified that you were homeless and had nothing when you first arrived in Canada and it was through the Mennonite Church and the Sunshine House where you felt welcome as a gay man and you were able to get on your feet and get a home.
[12] You testified that you’ve been able to open up about things that have happened to you and about your sexual orientation for the first time in your life here in Canada where you’ve been free. You’ve testified that you have issues because of the trauma because of this relationship with [XXX], and so you’ve testified that you have trust issues and you’re not ready for another relationship. You also testified that you spoke to your wife about a month ago and you testified that you have no idea where that relationship is at or whether she has any interest in the relationship with you. You testified that she was in disbelief and shock and not a positive response to coming to grips with the fact that you are a gay man, from your wife’s perspective, as you testified.
[13] Based on the totality of the evidence before me, I find that you have established a nexus to a Convention ground, membership in a particular social group due to your sexual orientation as a gay man. You also provided corroborative documents at Exhibit 4, including the letter from the Sunshine House with respect to your sexual orientation. As well as some of your employment documents, education documents, as well as identity documents including your marriage certificate to [XXX]. And this is found at Exhibit 4.
[14] The objective evidence supports your fear of return to Kenya as a gay man, and at the National Documentation Package, item 2.1, which is a U.S. Department of State Report it indicates that there is criminalization of homosexuality in Kenya. The National Documentation Package, item 6.1, which is a report from an international association supporting sexual minorities, and it specifically outlines section 162 of the Penal Code which criminalizes same-sex activities. It further gives more details regarding the persecution of sexual minorities in Kenya, including by the police officers. It indicates that police officers will do forced anal examinations with respect to finding proof that an individual is a sexual minority.
[15] It also indicates that there are reports of mob violence and beatings against sexual minorities throughout Kenya, and the police will then arrest the victim, the person who is a member of a sexual minority after the mob has beaten them. The penalty for same-sex activities in Kenya continues to be 14 years in prison. The National Documentation Package, item 2.2 which is a Human Rights Watch Report, also indicates that the human rights abuses in Kenya are perpetrated by security forces and the police. There continue to be extrajudicial killings and disappearances. And it also indicates that the High Court in Kenya upheld the laws against same-sex activities in Kenya. So, unfortunately, today the situation for sexual minorities in Kenya is very dire indeed.
[16] With respect to State protection and internal flight alternative. Given the objective evidence that the State is an agent of harm against sexual minorities, such as yourself as a gay man, I find that there is no State protection available to you as they are the perpetrator of the human rights abuses that you would face in Kenya.
[17] Further, given that the laws against sexual minorities cover all of Kenya, I find that it would be neither safe nor objectively reasonable in all of the circumstances, including your particular circumstances as a gay man, to try to relocate anywhere in Kenya to be safe. Accordingly, I find that there is no Internal Flight Alternative available to you.
CONCLUSION:
[18] For the foregoing reasons, I determine that you are a Convention refugee pursuant to Section 96 of the Act and the Board, therefore, accepts your claim.
[19] Okay. Thank you, Counsel, and, sir, I wish you all the best in all of your future endeavours, okay?
———- REASONS CONCLUDED ———-