Citation: 2021 RLLR 41
Tribunal: Refugee Protection Division
Date of Decision: June 3, 2021
Panel: Elsa Kelly-Rhéaume
Counsel for the Claimant(s): Melissa Singer
Country: Rwanda
RPD Number: MC0-03009
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000079-000082
DECISION
[1] MEMBER: We are back on the record, it is 11:25 on June 3rd, 2021. The Board has heard the evidence with regards the claim filed by XXXX XXXX and is ready to render its decision from the bench. The claimant alleges she is a citizen of Rwanda and is seeking refugee protection under s. 96 and 97(1) of the Immigration and Refugee Protection Act. For the purpose of the present asylum determination analysis, the Board took into account the Chairperson’s guideline 9, entitled proceedings before the IRB involving sexual orientation, gender identity and expression. At the hearing, the claimant expressed a preference for the use of the pronoun “she”, which is what the Board will use in rendering its decision.
[2] The claimant alleges that she would face persecution if she were to return to Rwanda based on her sexual orientation. More specifically, she alleges that she always felt like a girl in the body of a boy, starting as a young teenager. In XXXX 2018, she met a guy on return to a trip to Uganda, with whom she had had an intimate relationship. On XXXX XXXX XXXX 2019, a family servant caught the two of them in the claimant’s bedroom, and they were subsequently beaten by the claimant’s family. However, they denied that they were in an intimate relationship. For this, the claimant was punished by her family. They took away her phone, limited her outings, but relaxed some of those restrictions when she obtained a visa to study in the United States as they considered that perhaps she would change if she went to study there. So, the claimant’s aunt sent her to study in the US in XXXX of 2019, after several months there, around the month of XXXX, the claimant got a call from her mom, where she was told that they had found nude pictures of the claimant and her former boyfriend in her old laptop, and that the family had called the police, that they had beaten her former boyfriend, and that basically they were so disappointed in her and were rejecting her completely. The claimant was cut off financially after this phone call and has not had any contact with her mother, father, or most of her siblings or her aunt. And the claimant tried to obtain a scholarship to continue her studies in the US, but no scholarship was forthcoming, therefore she decided to come to Canada on XXXX XXXX XXXX 2020, and her asylum claim was deterred three days later to the Refugee Protection Division.
[3] The Board finds, in this case, the claimant has established that she faces a serious possibility of persecution, on the basis of her membership in a particular social group, for being gay, and also for identifying with the gender is not their biological sex at birth.
[4] The claimant’s identity has been established on a balance of probabilities, by a copy of her passport, which was filed with the Board.
[5] With regards to credibility, the claimant was a credible witness, she provided details about growing up and feeling like a girl, being interested in hair and make up and being attracted to boys, contrary to the other boys that were around her. She testified about her relationship with her first boyfriend, XXXX, and how her family reacted when a servant found out that they were a couple. She also described the feelings of shame that she experienced when she realized she was different, since in her community it is considered to be an affront against Rwandan culture to be gay, and that she would potentially be spoiling, her words, people around her, this was the perception in her community. The claimant also described to the Board how her participation in the LGBTQ community centre in Montreal has helped her be more accepting of her own identity, and be more open about it, despite those feelings of shame in that cultural upbringing.
[6] The claimant also provided several documents to support her claim. C-1 is a letter from the LGBTQ+ centre, where they also refer to the claimant as “she” and describe her participation and the activities at the centre. C-2 is a letter from her former partner that she had in Montreal, and C-3 is a copy of an email from her sister who lives in Uganda, who, while expressing a disapproval for her sexual orientation, discussed her attempts to trace XXXX and see what had happened with him.
[7] The claimant’s failure to seek asylum in the United States when she studied there from XXXX 2019 to the end of 2019, is not — is justified by the claimant’s explanation. She said that once her family cut her off finically, her legal status in the US was tied to her status as a student, and she has tried to look into applying for asylum in the US, but when she discovered that there were no or fewer resources such as shelters for people who are awaiting the outcome of their asylum claim, she decided to come to Canada, as she felt that there were more resources available. And thus, no negative inference is drawn by the Board with regards to the claimant’s overall credibility due to this failure to seek asylum in the US, and the Board also notes that as soon as she came to Canada, she did apply for refugee protection.
[8] There is also an objective basis for the future risk that the claimant faces if she were to return to Rwanda. The document evidence that is found in the national documentation package does support the claimant’s allegations and the fact that she would face a serious possibility of persecution upon return to Rwanda. Now, it must be said that the evidence can be contradictory with regards to the treatment of members of the LGBTQ community in Rwanda, and like many neighbouring countries, same-sex relations are not prohibited by law in Rwanda. However, there was an attempt to legislate in that manner in 2009, and homosexuality remains highly stigmatized within society. Tab 6.2 states that members of the LGBT community can suffer violence, discrimination, and harassment in general because of the cultural and religious beliefs which are highly intolerant of homosexuality. Homosexuality is viewed as disease coming from the west, and as an immoral thing. And it is very rare in Rwanda to encounter people who are openly gay and who are able to live their identity freely, because being openly gay will normally cause total isolation and cause gay people to be rejected by their family and their friends, and the claimant’s testimony is in line with that reality, where she was rejected by her family upon them learning of her sexual orientation.
[9] Furthermore, tab 6.1 states that gay people in Rwanda will suffer discrimination in trying to get a job, in trying to get access to housing, because they can be evicted by landlords, or families will kick gay people out of the households where they have always lived. And so, the fact that gay people in Rwanda will face human rights violations with regards to their basic, fundamental rights, such as housing, lodging, on a systemic basis and a systematic basis for the Board amounts to persecution. So, in light of the way members of the LGBTQ community are treated in Rwanda as stated in this documentary evidence, and in light of the claimant’s past experience within her family where she was beaten for being in a relationship with another young man, she has established on a balance of probabilities that she faces a future risk of illegal detention, suffering violence, or persecution, if she were to be open about her sexual orientation in Rwanda.
[10] With regards to state protection, the Board finds that there is clear and convincing that the state is unable or unwilling to provide the claimant with adequate protection. 6.2 of the national documentation package states that it is possible to ask for state protection, but whether that protection will be forthcoming will depend on the individual who receives the complaint, and their own personal beliefs. Tab 6.1 has stated that while there are some ethical police officers who will help people from LGBTQ community, they can also be arrested on behalf of lies that the arrestees were stealing, or were causing insecurity, or that the LGBT community is the root cause of several social ills. So, in large numbers, police officers do not want to hear about the existence about the LGBTQ community, and that is true also within the judicial system. Furthermore, tab 6.1 states that the police can arrest and illegally detain gay people for indefinite time based on morality laws, and there are very few cases brought before the courts for cases of violence against people from the LGBT community. So, in light of this evidence, there is not adequate protection that can be provided to the claimant, were she to return to Rwanda, and she has rebutted the presumption of state protection.
[11] Finally, the Board analyzed whether the claimant could possibly relocate safely within her country of origin. However, the sentiment with regards to homosexuality is the same, all throughout the country, and as the Board has found that there is no adequate state protection available to members of the LGBTQ community if one is attacked or suffers discrimination or persecution due to their sexual orientation, the Board finds that the claimant would thus face a serious possibility of persecution anywhere in the country, and there is thus no viable internal flight alternative available to the claimant.
[12] In conclusion, the Board has analyzed evidence as a whole, and finds that the claimant has discharged her burden of establishing a serious possibility of persecution based on one of the grounds set out in s. 96 of the Immigration and Refugee Protection Act, and the claim is therefore accepted. This is the end of my decision.
———-REASONS CONCLUDED———-