Citation: 2021 RLLR 50
Tribunal: Refugee Protection Division
Date of Decision: February 3, 2021
Panel: Matthew Weston
Counsel for the Claimant(s): N/A
Country: Kenya
RPD Number: TC0-05375
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
[1] MEMBER: Okay, so this is the decision in the refugee claim made by XXXX XXXX and the file number is TC0-05375. So, sir, you claim to be a citizen of Kenya and you are claiming refugee protection pursuant to sections 96 and 97(1), the Immigration and Refugee Protection Act.
[2] In rendering my decision, I have considered the Chairperson’s guideline 9 on claims involving sexual orientation, gender identity and expression and for the reasons I follow, I find that you are a convention refugee. Your allegations can be found in your basis of claim form, found in Exhibit 2, but to summarise, you alleged persecution at the hands of state and non-state actors due to your sexual orientation, namely as a gay man.
[3] With respect to your identity, I find that you have established your persona! and national identities on a balance of probabilities and you have done this through your Kenyan passport, a certified true copy of which can be found in Exhibit 1. You also provided me with numerous identity documents both from Canada and from Kenya, but I also relied on your national identity card, which can be found in Exhibit 5 at annex 2.
[4] In terms of your credibility, there are certain aspects of your claim that I found that you have not established on a balance of probabilities. You alleged that you are wanted by the police in Kenya right at this time for having same sex relationship, so you testified that you had a one night stand with a man in Kenya and he sought medical attention and the doctor determined that he had engaged in same sex sexual conduct and the doctor was legally obligated to inform the police. Beyond this, you could not tell me how you were discovered by the police or how you became wanted by the police, you provided a charge sheet, two charge sheets actually, both are found in Exhibit 5 at annex 1. So, the charge sheet lists that you are charged with a natural offenses contrary to section 162 of the penal code. You also provided the same charge sheet for the man that you alleged that you had same sex relationship with. You testified that it was your mother who has given these documents and she is one who sent them to you, you were unable to tell me how your mother obtained the charge sheet for the other man and I don ‘t find it reasonable that your mother would have been given the charge sheet for your co-accused.
[5] I also had issues with the appearance of the charge sheets, as I questioned you on, there was a line going through that cuts off some of the writing, or goes through some of the writing. The stamp in the bottom right of both charge sheets appears to be printed on the page and then on top of that it signed in pen, so based on these concerns, I find that these documents are not credible or trustworthy and I give them no weight in establishing that you are wanted by the authorities in Kenya.
[6] You also provided the original version of an arrest warrant that is found in the same Exhibit in annex as the previous documents, it is Exhibit 5, annex 1. On the arrest warrant, I noted that the writing gets cut off from the side of the page, you testified that it was likely cut off because when making a copy. However, the arrest warrant that was provided to me was the original and it was written in pen, so I did not find it reasonable that the arrest warrants writing would be cut off on the side given the fact that it is original.
[7] The arrest warrants also list you and the man that you alleged that you had same sex relationship with and I don’t find it reasonable that two people who are unrelated would be listed on the same arrest warrant. So, again based on these concerns I find that this is not a credible or trustworthy document and I give it no weight.
[8] Lastly, you provided a post rape care form from the ministry of health, you couldn’t tell me why this was given to your mother or why it was provided, and I indicated to you that the form appears to have been altered in many places and that there are clearly two different forms of ink used, and that the writing in certain areas has been scratched out or whited out throughout the form. For instance the box that indicates the sex of the victim appears to have initially been checked off as female, but has been scratched out and the male box. The box that indicates the victim was a male was then checked off. The form also indicates that the victim who is a male, suffered vaginal injuries, again this is indicated by the check box on the side as well at the bottom there was a diagram for the medical professional to detail the injuries, and again the diagram and the details indicates that there were injuries to the female genitalia. You were unable to provide any sufficient reason as to why this would be the case and so I find that this is not a credible or trustworthy document and give this document no weight as well. As such I find that you have not established that you are wanted by the authorities in Kenya at this time on balance of probabilities.
[9] Despite this, I do find that you have established your sexual orientation on a balance of probabilities. You provided credible testimony that was detailed and spontaneous, you gave credible testimony about when you first noticed that you were attracted to men, and you even detailed your first same sex sexual relationship with another male, you mentioned that this was in high school when you were about the age of 14, you were able to give me spontaneous and very detailed testimony about what attracted you to him, what qualities of his you were attracted to, you also gave very detailed testimony about the struggles that you had regarding accepting and identifying your sexual orientation. I found this to be the most credible of your testimony.
[10] You testified that you often thought about this and you struggled with this for a very long time and you testified that it was a very long process for you to accept that you are a gay. You testified that you are your family’s only son and that this made even harder for you to accept yourself as being gay. You testified that you tried hard to supress these feeling, but you were eventually able to accept who you are. You testified that you opened up to your mother and she to your surprise even she accepted you and continues to love you and care for you as just as much as before.
[11] You testified that this was a great comfort to you and aided you in continuing to accept yourself. Again I find your testimony in this regard to be very credible.
[12] You also provided detailed testimony about some of your other same sex relationships that you had in the past. You provided detailed testimony and supporting documentation to establish one relationship in particular that you had from 2015 until 2018, to corroborate this you provided text messages and photographs, these can be found in Exhibit 5 at annex 4 and 7 respectively.
[13] You also provided text messages from a friend and another former partner which can be found in Exhibit 5 at annex 5 and 6 as well. Overall, I find that your testimony in this regard was consistent with the documentation that you provided and I find that you have established that you were involved in same sex relationships in the past on the balance of probabilities.
[14] You also provided detailed testimony about the struggle that LGBT people face in Kenya as the government does not accept you or grant you the rights guaranteed to all citizens in the constitution. You testified that it is difficulty to live openly and freely in Kenya and you testified that you do fear being arrested by the authorities. Despite my finding that you are not wanted by the police currently, I do find that the objective documentary evidence makes it clear that LGBT people do risk imprisonment if their sexual orientation is discovered.
[15] You also testified credibly about the overall attitude of the Kenyan society towards LGBT people. As a result I find that you have established on a balance of probabilities that you are a gay man and that you faced a serious possibility of persecution and that you have a subjective fear of persecution based on those grounds.
[16] I further find that there is a link between what you fear and one of the 5 convention grounds, specifically due to your membership in a particular social group, namely as a gay man. Therefore, I have assessed your claim under section 96 of the Immigration and Refugee Protection Act. I also find that you have an objective basis for your fear because of the documented conditions for Kenya as per the evidence in the national documentation package which is found in Exhibit 3. Item 6.1 of the NDP states that having sexual relations with people of the same sex is considered a crime and is punishable by up to 14 years in prison.
[17] Item 2.1 states that the constitution does not explicitly protect LGBTI persons from discrimination based on sexual orientation or gender identity. The penal code criminalises 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. The same report goes on to indicate that police have and do continue to detain people under these laws. This excerpt in particular is in line with your testimony about Kenya’s constitution and also you did testify that police continued to detain people under these laws and again this corroborates that.
[18] Continuing on item 6.2, states that the suicidal attitudes towards same sexual relationships are generally intolerant and LGBT people face gross human rights violations in Kenya. In item 6.6 states that the president has come out recently and said that he will not accept practices that are in conflict with Kenyan culture, he says that Kenya’s culture believes that homosexuality is not a human right and he considers gay rights a non-issue for the government to consider.
[19] Therefore, I find that your subjective fear has an objective basis and that you have a well-founded fear persecution due to your sexual orientation. I also found that you have rebutted the presumption of state protection. You fear the state as an agent of persecution because engaging in same sex sexual conduct in Kenya is considered a crime and is punishable with jail time.
[20] In Kenya, the police are also known to not provide protection to LGBT people in fact they are known to be just as likely to persecute LGBTI persons as they are to protect them. Item 6.1 of NDP details an incident where a gay man was stabbed and he reported this to the police only to be arrested himself and charged sodomy. So again, with this in mind I find that adequate state protection would not be available to you in Kenya.
[21] With respect to an internal flight alternative given the conditions that are documented in the country, I further find that there would be a serious possibility of persecution for you anywhere in Kenya, as there are laws criminalising same sex sexual conduct throughout the country. This would prevent you from living freely and openly in Kenya and therefore, I find that there is no viable internal flight alternative for you.
[22] In conclusion based on the totality of the evidence, I find that you are a convention refugee and I therefore accept your claim.
———-REASONS CONCLUDED———-