Citation: 2021 RLLR 56
Tribunal: Refugee Protection Division
Date of Decision: January 28, 2021
Panel: Lindsay Trevelyan
Counsel for the Claimant(s): Subuhi Siddiqui
Country: Kenya
RPD Number: TB9-30161
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
[2] You are claiming to be a citizen of Kenya and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. In deciding this claim, I have taken into consideration all of the evidence, oral testimony, as well as the Chairperson’s Guideline 9 proceedings before the IRB involving Sexual Orientation and Gender Identity and Expression, the SOGIE Guidelines. I’ve also taken into consideration the Chairperson’s Guideline 4 Women Refugee Claimants Fearing Gender-Related Persecution. I’ve considered your testimony and the other evidence in the case and I am ready to render my decision orally.
[1] MEMBER: This is the decision for the following XXXX XXXX XXXX, file number TB9-30161.
[3] I find that you are a Convention refugee because you face a serious possibility of persecution on the grounds of your membership in a particular social group, namely as a bisexual woman, and also as a survivor of gender-based violence. My reasons are as follows.
[4] The allegations can be found in your Basis of Claim form at Exhibit 2. You allege you are a citizen of Kenya and that you fear the Government, non-government actors, and your ex-husband due to your sexual orientation. You also allege that there is no state protection for you, nor is there an internal flight alternative.
[5] Your personal identity as a citizen of Kenya has been established by your testimony and the supporting documents filed in the exhibits, specifically your copy of your Kenyan passport and your National Identity Card. I therefore find on a balance of probabilities that identity and country of reference have been established.
[6] I find that there is a clear nexus between your fear and the Convention ground of membership in a particular social group, that of a bisexual woman and a woman facing gender-based violence. I find that the test under Section 96, whether there’s a serious possibility of persecution should you return to Kenya, is met.
[7] In terms of your general credibility, I have found you to be a credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim form. You testified sincerely and emotionally as to your relationship with your same-sex partner in Canada, and your relief at being able to express your sexuality without fear in Canada.
[8] Your current same-sex partner also appeared as a witness at today’s hearing. She provided credible and corroborative testimony. You both spoke of gifts and celebrations together and time spent at St. Chad’s Church, at the Black Coalition for AIDS Prevention, as well enjoying meals together. You also provided a significant number of photographs of you and your partner and over 200 pages of text messages between you both over a period of several months. And this is in Exhibit 6.
[9] I find that your testimony, that of your partner, and this evidence establishes that you are in a same-sex relationship. I therefore find that you have established your identity as bisexual woman.
[10] You provided the following documents in Exhibit 6 to support your claim which I find relevant and credible. Letters of support from both your same-sex partner and your friend and community member in Canada; an affidavit and letter from your sister in Kenya attesting to your identity as a bisexual woman and the harm you have endured from your ex-husband; an affidavit from your friend in Kenya attesting to your identity as a bisexual woman and your same-sex relationship in Kenya and the threats that you had endured; an affidavit from your neighbour in Kenya attesting to the abuse you suffered at the hands of your ex-husband and an incident requiring him to take you to hospital; a XXXX XXXX from a counsellor you have seen for no less than eight counselling sessions which refers to your low mood, persistent feelings of guilt and shame, and the presence of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX; and a letter from the Refugee Settlement Coordinator at the Black Coalition for AIDS Prevention (Black CAP) in regards to your regular attendance at Foreign Integration Programming for LGBTQ newcomers and his knowledge of your same-sex partner and journey in Canada.
[11] Your Basis of Claim and your compelling testimony detailed your same-sex relationships in Kenya and the abuse and violence you suffered at the hands of your estranged husband and the community. Your testimony also detailed the discrimination and the threats that followed you after your ex-husband exposed your sexual orientation to the community. You provided spontaneous details about those events and were able to explain any apparent inconsistencies or omissions.
[12] I therefore find that you were in an abusive marriage and that your husband discovered you were having a same-sex relationship and that you and your partner were attacked and endangered in Kenya. I find your subjective fear is established by your credible testimony and I believe what you allege on a balance of probabilities.
[13] I also find that there is an objective basis for what you fear in Kenya. The objective evidence is provided in Exhibit 3, the National Documentation Package for Kenya from September 30, 2020. Your counsel has also provided additional country condition documentation in Exhibit 8.
[14] The Kenyan Penal Code, as amended by Act No. 5 of 2003, criminalizes consensual same-sex sexual activity carrying a maximum penalty of 14 years imprisonment. This is seen to justify the corollary homophobic police abuse, mob violence, harassment, and intimidation perpetrated on the LGBTQI community in Kenya, and this is Exhibit 3, Item 6.1.
[15] Though no legislation in Kenya specifically mentions sexual acts between women, LBQ women are frequently arrested, denied access to basic rights and amenities, and excluded from participation as citizens in Kenya. The Sexual Offences Act from 2006 criminalizes indecent acts between adults. The ambiguities of this clause and those in the Penal Code allow for arbitrary decisions and judicial discretion in issuing verdicts according to personal moral views, and this is Exhibit 3, Item 6.6.
[16] This evidence establishes an objective basis for fear of persecution. Based on this, I find that your fear of persecution in Kenya on the basis of your sexual orientation, namely as a bisexual woman is an objectively well-founded one.
[17] Given that the agent of persecution is the State and the persecution you fear would be at the hands of the authorities, you have rebutted the presumption of state protection in Kenya. This is corroborated by Item 1.6 which says, “Many LGBT victims of violence believe they have no recourse and that the police are just as likely to persecute them as to protect them.” The report goes on to describe an incident where an LGBT man was stabbed in the chest and reported the incident to police only to be arrested himself and charged with sodomy. I find that there is no state protection available to you.
[18] Further, since the same laws exist throughout Kenya, there is no safe alternative location in Kenya where one could live openly and freely as a bisexual woman. An internal flight alternative is not viable if it depends on the person concealing their sexual orientation. There is no IFA in Kenya.
[19] Based on the totality of the evidence, I find you to be a Convention refugee because you face a serious possibility of persecution on the grounds of your membership in a particular social group, that as a bisexual woman. Therefore, I accept your claim.
———- REASONS CONCLUDED ———-