Citation: 2021 RLLR 16
Tribunal: Refugee Protection Division
Date of Decision: December 9, 2021
Panel: Hannah Gray
Counsel for the Claimant(s): Preevanda K Sparu
Country: Bahamas
RPD Number: VC0-03669
Associated RPD Number(s): VC0-03670
ATIP Number: A-2022-00665
ATIP Pages: 000061-000065
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division, the RPD, in the claim ofXXXX XXXX XXXX, the principal claimant, and her partner, XXXX XXXX XXXX XXXX XXXX, the associate claimant of the Bahamas, who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, the IRPA. I have considered and applied the Chairperson ‘s guidelines on women refugee claimants fearing gender-related persecution. And I have also applied and considered the Chairperson’ s guideline nine (9) proceedings before the IRB involving sexual orientation and gender identity and expression in this decision. I find that the claimants are Convention refugees pursuant to section 96 of the IRPA based on their well-founded fear of persecution in the Bahamas.
ALLEGATIONS
[2] The specifics of the claims are stated in the claimants’ Basis of Claim forms and narratives and evidence. The claimants are a common-law couple from the Bahamas, who are aged XXXX and XXXX respectively. The principal claimant identifies as a masculine and transgender and the associate claimant identifies as a lesbian. While living in the Bahamas, the principal claimant realised that they were non-gender conforming at a very young age and later began to date women as they got older. The associate claimant began to identify as a lesbian around the age of XXXX. They experienced threats and harm while living in the Bahamas and most of their family members did not accept their sexuality.
[3] The associate claimant was robbed in her home and her private photographs were leaked publicly. The principal claimant was threatened and physically assaulted in a nightclub in 2019, causing her to Jose vision in her eye. The associate claimant and principal claimant both reported these incidents to the police. However, the police did not help. The associate claimant fled to Canada in XXXX 2019 as they feared for their safety and her godsister informed her that Canada was a safe haven for the LGBTQ community. She made her refugee claim at this time. The principal claimant had to recover from the assault in the Bahamas and then locate their passport and then they fled to Canada in XXXX 2019. They made their refugee claim in December 2019. They both fear returning to the Bahamas and being threatened or harmed by all of society due to their sexual orientation and gender identity.
ANALYSIS
Identity
[4] I am satisfied with the identity of the claimants as citizens of Bahamas, which is established by their testimonies and the copies of their passports in evidence.
Credibility
[5] When a claimant swears to the truth of allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. I find no reason to doubt the truthfulness of the claimants. They testified in a straightforward, forthright, detailed and candid manner. There were no material inconsistencies, omissions or contradictions between the claimants’ testimonies and the other evidence in this case that were not reasonably explained, and they did not exaggerate or tailor their evidence. In summary, their testimonies were consistent with the other evidence on central aspects of their claims. I find the claimants also provided ample details to expand upon their allegations and they provided documentary evidence, which included medical reports and photographs from the physical assault of the principal claimant in 2019, XXXX assessments, photographs of them as a couple as well as with their friends from the LGBTQ community, letters of support from family and friends as well as support organisations, and country condition articles to name a few.
[6] Both of the claimants travelled to the USA to visit family and friends between 2017 and 2018. When they were asked, if they considered making a refugee claim in the USA, the claimants testified that they did not. The associate claimant testified that she feared making a refugee claim in the USA as there had recently been a shooting at a gay club in Florida State and she feared that it would not be safe for them in the US. She further testified that her godsister who lived in Canada informed her that Canada was a country that offered refuge for the LGBTQ community. Based on their credible testimonies and reasonable explanation, I do not draw a negative inference on the claimants’ credibility based on their failure to claim refugee protection in the USA.
[7] Given the principle claimant’s careful testimony and supporting documents, as well as the associate claimant’s testimony and supporting documents, I find that both of the claimants have established on a balance of probabilities the facts alleged in their claims, including that the principal claimant identifies as masculine and non-gender conforming and that the associate claimant is a lesbian and they are in a lesbian relationship. I accept on a balance of probabilities that they have faced discrimination, a robbery, and an assault due to their sexual orientation, as well as general mistreatment from family members due to their sexual orientation and gender identity. I therefore accept the subjective fear they have of returning to the Bahamas. In sum, I find that the claimants are credible witnesses.
Nexus
[8] To qualify for refugee status under the refugee convention, an individual must demonstrate that they have a well-founded fear of persecution for reasons of race, religion, nationality, or membership in a particular social group or political opinion. Based on the totality of the evidence, I find that the claimants have established a nexus to a convention ground, namely their membership in a particular social group as a lesbian woman and a non-gender conforming woman. Further, I find that the claimants face more than a mere possibility of persecution if they return to the Bahamas now. I will therefore assess this claim under section 96.
Well-Founded Fear of Persecution and Risk of Harm
[9] I find that the claimants have a well-founded fear of persecution based on their sexual orientation and gender identity as a common-law couple who are non-gender conforming and in a same-sex relationship. In addition, the principal claimant testified that they are non-gender conforming and have intentions to undergo gender-affirming surgery in the future. The claimants both face threats and harm in the Bahamas in the form of a robbery, exposure of private information such as photographs, and an attack in a bar due to their sexual orientation. They also testified that they faced mistreatment from family members when they disclosed their sexual identities.
[10] The SOGIE guideline states under section 8.5.9.1 that individuals with diverse SOGIE may also face instances of harassment or discrimination that cumulatively amount to a well-founded fear of persecution. The SOGIE guideline goes further to provide a non-exhaustive list of factors to consider regarding cumulative discrimination amounting to persecution, including restrictions, unemployment, social services, health care, and harassment by the police. The objective evidence in the National Documentation Package for the Bahamas at item 6.1 indicates that there are no constitutional protections for sexual minorities in the Bahamas and no protection against discrimination on the basis of sexual orientation in employment legislation. This report further states that same-sex marriage is not recognised in the Bahamas.
[11] Homophobia permeates throughout cultural attitudes and it is culturally acceptable to exert violence against sexual minorities. This objective evidence also indicates that sexual minorities face violence, including killings in the Bahamas.
[12] Sources in the NDP at item 6.1, 6.2, and 6.3 further indicate that LGBT people are generally afraid to be open about their sexual orientation and gender identity in the Bahamas and they don’t live out in the sense. Activists and openly LGBTQ people are often perceived as having nefarious international agendas to spread and normalise homosexuality. They are marginalised from mainstream employment and other social and civic spaces, and young people who are LGBTQ reportedly are in many instances subjected to psychological, spiritual and physical violence at the hands of their parents, guardians, teachers, and peers.
[13] These sources indicate that the LGBTQ people in the Bahamas have been subject to violence, including killings and physical attacks. And indeed, the claimants provided a substantial amount of detail about some of the violence that they experienced or their friends experienced in the Bahamas. Therefore, I find that the claimants have demonstrated a well-founded fear of persecution on both a subjective and objective basis. I find the claimants would face a serious possibility of persecution in the Bahamas based on their membership in a particular social group.
State Protection and Internal Flight Alternative
[14] I find that there is clear and convincing evidence in the documentation that the state is unable or unwilling to protect… to provide the claimants with adequate protection. Homosexuality was decriminalised in the Bahamas in 1991. However, the government officials have conceded that a significant stigma against homosexuality still persists and there is no official mechanism to document and monitor human rights violations and no recourse available to victims of discrimination and violence based on sexual orientation.
[15] The objective evidence at item 6.1 of the NDP further indicates that there are no training programs or policies to counteract homophobia and sexual minorities do not have equal access to the law. There are also reports that the police insult and ridicule sexual minorities if they report crimes to them and their sexual orientation is discovered. Based on the totality of evidence, I find that, although there are some mixed evidence and some evidence of efforts by the state to make improvements, there continues to be an absence of operationally effective state protection available to sexual minorities such as the claimants.
[16] Further, the objective evidence indicates at NDP item 5.3 that, in addition to the high levels of violence against women in the Bahamas, interlocutors noted that concern the apparent normalisation of violence against women and girls across the country. This normalisation of violence against women often leads to underreporting, as well as ridicule and stigmatisation of victims who do come forward. Ending such violence against women is one (1) of the most serious challenges facing the Bahamas today and where underreporting remains a concern reflecting a lack of trust in the justice system, as well as fear of ridicule and stigmatisation.
[17] Given the absence of operationally effective state protection, as well as the small geographical size of the island country and the prevalence of homophobia and violence against sexual minorities and violence against women in the Bahamas, I find that the claimants would face a serious possibility of persecution throughout the Bahamas and it is not objectively reasonable in all the circumstances including those particular to the claimants for them to relocate. Accordingly, I find that there is no internal flight available to the claimants.
CONCLUSION
[18] For these reasons, I find that the claimants are Convention refugees under section 96 of the Act and I accept both of their claims. Thank you and thank you for sharing your experiences with me today.
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