Citation: 2021 RLLR 57
Tribunal: Refugee Protection Division
Date of Decision: June 14, 2021
Panel: Roderick Flynn
Counsel for the Claimant(s): John W Grice
Country: Pakistan
RPD Number: TB9-31222
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
[1] MEMBER: I’ve reached a decision, I’d like to read it. Counsel, does your client need word for word translation of the decision?
[2] COUNSEL: I don’t – I don’t think so. I think based on his – his knowledge of the English language it doesn’t need to be word for word. I can certainly go through it with him afterwards as well.
[3] MEMBER: Okay. So then I’m going to suggest that Mr. Interpreter just take a break and I just read the – the decision in one fell swoop if that’s okay.
[4] INTERPRETER: Okay. Okay, so I’m on standby.
[5] MEMBER: Yes.
[6] INTERPRETER: This part.
[7] MEMBER: Is that okay, Counsel?
[8] COUNSEL: Yes, that’s fine.
[9] MEMBER: Okay, great. I’m just going to go to the decision now and if there’s any problems hearing me let me know. I’ve had a chance to consider the evidence, I’m prepared to render a decision in this matter orally.
[10] This decision will be sent to you following the hearing, it may be edited for spelling and grammar. This is a decision for in the claim by XXXX XXXX XXXX XXXX, file number TB9-31222. You are claiming to be a citizen of Pakistan and you’re seeking refugee protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act.
[11] The determination is based upon the totality of the oral and documentary evidence presented I find you to be a Convention refugee under Section 96 of the Immigration and Refugee Protection Act by reason of your membership in a particular social group as a gay man.
[12] A summary of the allegations is as follows. You have described you fear persecution in Pakistan because of your sexual preference. You have indicated that if you return to Pakistan you will face persecution and perhaps violence on the grounds of this sexual preference from the government, extremist groups and as well as individuals and society at large.
[13] You’ve outlined that after discovering your sexual preference in early adolescence you hid it particularly in light of teachings from Islam which – and other messages from society indicating that homosexuality and LGBT membership was a sin.
[14] You stated there’s no state protection for you as a member of the LGBT community in Pakistan and nowhere you can go in your home country to be safe.
[15] On the matter of your identity, your personal identity as a citizen of Pakistan has been established by your credible testimony, the copy of your passport and the other identity documents provided and entered into evidence for this hearing. Upon a balance of probabilities that identity and country of reference Pakistan have been established.
[16] On the matter of nexus, I find there is a link between your fear of persecution and your sexual preference as a gay man therefore your claim is being assessed under Section 96 of the Immigration and Refugee Protection Act.
[17] On the matter of credibility, I find you to be a credible witness. You have described persuasively your discovery of your sexual preference, your relationship, your history of same sex relationships and the persecution received as a result including arrest in 2016 after you were discovered having sex with a partner.
[18] You fled first to Denmark in 2019, shortly thereafter you came to Canada via the United States on XXXX XXXX XXXX 2019. I accept as credible that you are a gay man and that if you return to Pakistan as a member of the LGBT community you will face persecution on the grounds of this sexual preference and you would not be permitted to live openly.
[19] I find that you’ve been – you’ve candidly shared your relationship history, your history of facing stigma and arrest because you are gay and the threat you received from a terrorist group as a result. You’ve supported your oral evidence with credible supporting documents including your national identity card, a letter from the 519 group in Toronto, a corroborating affidavit from a friend, a corroborating affidavit from a former partner with whom you were arrested in 2016, a letter from your father supporting your testimony about the details of your arrest by police and the bribe which he paid to get you released.
[20] Based upon the evidence provided I find on a balance of probabilities you’ve established your subjective fear of persecution on the grounds of your sexual preference. Also I find on a balance of probabilities it is not appropriate in this case to make an adverse inference based upon any failure to claim in Hungry or Denmark.
[21] Turning to the objective evidence, the objective evidence from the NDP for Pakistan supports your credible testimony. It identifies that in your country, intimate relationships between members of the same sex are actually criminalized in Section 377 of the penal code.
[22] While the NDP acknowledges that same sex intimate contact is actually common, it never publicly – it is never publicly acknowledged for fear of reprisal from the state and particularly from members of the community at large.
[23] The NDP fully confirms your evidence that there’s a risk of violence to you as a member of the LGBT community in Pakistan from multiple sources including the state, although prosecutions under the penal code are actually rare. But also from members of the public who are greatly influenced by the society at large and the, quote, conservative Muslim community.
[24] The NDP also confirms that persecutory activity of the terrorist group that you had mention, Jamaat-ul-Ahrar which is identified as targeting minority groups and civilians such as yourself. Accordingly I find your subjective evidence concerning your fear of persecution as a gay man is supported by the objective evidence for the – from the NDP for Pakistan. I therefore conclude your subjective fear of persecution on the grounds of your sexual preference is well founded.
[25] Looking at the matter of state protection. NDP also – for Pakistan also confirms that state protection is not really available to members of the LGBT community such as yourself. As noted in the DFAT (ph) report of the NDP, police in Pakistan generally refuse to take complaints or requests for protection from members of the gay community.
[26] It is also reported that some police actually blackmail complaints who tell them that they are gay. Further, there are no laws in Pakistan which protect the LGBT community from persecution or discrimination despite longstanding calls from the international community to put these in place.
[27] Given that your oral evidence is supported by the NDP which confirms that there’s no official legal protection, the members of the LGBT community such as yourself and no practical protection either, I find on the balance of probabilities that the presumption of state protection is rebutted in your case.
[28] On the matter of Internal Flight Alternative, I’ve also considered whether there’s a place you can go in Pakistan and live safely. The conditions of intolerance and official systemic discrimination against members of the gay and LGBT community in Pakistan persist throughout the country.
[29] As such I conclude on a balance of probabilities there’s nowhere in the country you can go as a gay man and live openly. As such I’m satisfied on a balance of probabilities that you would face persecution based upon your sexual orientation throughout the country and there’s no internal flight alternative for you in Pakistan.
[30] In conclusion, based upon the totality of evidence before me both oral and documentary I conclude that you face a serious possibility of persecution based upon your sexual preference any place in Pakistan as a gay man and there’s no viable Internal Flight Alternative for you.
[31] I therefore find you to be a Convention refugee on the grounds of your sexual preference under Section 96 of the Immigration and Refugee Protection Act. I accept your claim.
[32] Thank you, sir. That decision that I’ve just read will be transcribed and sent to you and – and so that is basically our hearing. I’d like to give you the opportunity to say something prior to our close. Would you like to say something?
[33] CLAIMANT: I want to express my gratitude and want to tell him that I cannot return to Pakistan and can start my life anew as a normal person here in Canada. Thank you.
[34] MEMBER: Thank you for sharing that. Oh, sorry, I didn’t mean to interrupt.
[35] CLAIMANT: And many, many thanks to him for understanding my situation and giving me a chance to move ahead in my life.
[36] MEMBER: Okay, thank you. So thank you to you, I really appreciate you sharing your difficult story with me. Thank you to our interpreter and thank you to counsel. Thank you to everyone for staying a little later today and being patient throughout the document hunt that we engaged in a little earlier.
[37] INTERPRETER: Thank you, sir. Thank you, have a very nice day.
[38] COUNSEL: Thank you very much, Mr. Member.
[39] MEMBER: Okay. I’m going to stop the recording now and disconnect. Is there anything else before we leave?
[40] INTERPRETER: Nothing.
[41] COUNSEL: No.
[42] MEMBER: Thank you very much and have a good evening.
[43] COUNSEL: You as well.
———- REASONS CONCLUDED ———-