Citation: 2021 RLLR 63
Tribunal: Refugee Protection Division
Date of Decision: March 30, 2021
Panel: Miranda Robinson
Counsel for the Claimant(s): Adrienne C Smith
Country: Bahamas
RPD Number: TC0-03776
Associated RPD Number(s): TC0-03848
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
MEMBER:
INTRODUCTION
[1] I have considered your testimony and the other evidence in the case and I am ready to render my decision orally.
[2] These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX, the principal claimant, and XXXX XXXX XXXX XXXX, the associate claimant, who claim to be citizens of the Bahamas and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[3] In rendering my reasons, I have considered the Chairperson’s Guidelines 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.
ALLEGATIONS
[4] Your allegations are found in your Basis of Claim form and narrative in Exhibit 2, as well as the oral testimony heard today. In summary, you both allege persecution at the hands of the homophobic community in the Bahamas for your sexual orientation as gay men. You also allege to be in a common law same-sex relationship with one (1) another for approximately three (3) and a half years.
DECISION
[5] I find that you are refugees pursuant to Section 96 of the Immigration and Refugee Protection Act as there exists a serious possibility of persecution should you return to the Bahamas on account of your membership in a particular social group as gay men. My reasons are as follows.
Identity
[6] I find that your identities as nationals of the Bahamas is established by the documents provided. In particular, the certified copies of the passports and national identity cards in Exhibit 1. I also note that for the principal claimant, the USA biometrics showed variations of your name, which appear to be spelling errors and as you explained, you have no knowledge of why this would be inputted incorrectly. I also note the current passport does show stamps that match these dates with the fingerprints. In the other biodata, input is correct. It matches the passport and birth certificate. I also note the birth certificate shows your parents’ name and birthdate. And so, I accepted the principal claimant, XXXX XXXX XXXX XXXX identity as it is given in the passport.
Subjective Fear
[7] I note that neither claimant sought asylum after travelling to the United States. As the principal claimant explains, your trips to the USA were primarily for work supply trips for your job. Both claimants, you have stated that you were unaware of the ability to claim in the United States was even an option to you. Again, I accept this explanation in your circumstances and therefore, it does not raise significant concerns with respect to subjective fear or credibility.
Credibility
[8] I find you both to be credible and in particular, when considering the evidence, you have submitted to corroborate your allegations, I do find that, on a balance of probabilities, you are both gay men in a genuine same-sex relationship. To corroborate your allegations, you have provided significant documentation, and this includes a number of letters of support from both of you, from friends of both claimants, the principal claimant’s brother, as well, and these letters attest to the author’s knowledge of your sexual orientations and of your genuine relationship with one (1) another. You have also provided a number of screenshots of text message correspondence between you both, which indicates an authentic and ongoing relationship. And this is further corroborated by evidence of email transfers, which indicates the financial interdependence of your relationship. You have also given photographs of the both of you in the Bahamas, on vacation and in Canada and these are dated, labelled and take place over the course of several years of your relationship and they do appear to also show a natural and comfortable relationship with one (1) another. I therefore find that your subjective fear is established.
Objective Basis
[9] Given that there are no serious credibility issues with respect to your allegations coupled with the documentary evidence set out below, I find that you have established a prospective risk and a well-founded fear of persecution in the Bahamas. The risk is corroborated by the National Documentation Package, the NDP for the Bahamas, the April 30th, 2020, version given in Exhibit 3.
[10] Item 6.1 of the NDP indicates that,
[As Read] The Bahamas shares the same strong anti-gay attitudes as other Caribbean islands and that homophobia has permeated throughout cultural attitudes and is expressed in religion and in music.
In the British Caribbean, hypermasculinity is valued and openly gay men are seen as betraying manhood and it is culturally acceptable to exert physical violence against men who betray these gender norms. This also includes physical and psychological attacks and killings.
Sources further indicate that members of the LGBTQ community are generally afraid to be open about their sexual orientation or their gender identity in the Bahamas and are unable to live out freely.
Members of the LGBTQ community are often perceived as having a “nefarious international agenda” in order to spread homosexuality and are marginalized from employment and other social and civic spaces.
[11] Item 2.1 indicates that, the Bahamian constitution does not include protection against discrimination based on sexual orientation. I, therefore, find on a balance of probabilities that the objective fear is also established.
Nature of the Harm
[12] I have examined your claim under Section 96 of IRPA as I conclude that the risk you describe constitutes persecution based on at least one (1) of the grounds in Section 96. In this case, for your membership in a particular social group as gay men and in particular, in a same-sex relationship.
[13] So, the risk you face is of being subjected to social abuse, discrimination, and inability to live freely. As well as mistreatment and violence at the hands of the homophobic community in the Bahamas.
State Protection
[14] I find there is clear and convincing evidence before me that the state is unable or unwilling to provide you with adequate protection. As you stated in your narratives, you had made attempts to seek the protection from police and that these were not followed up with by authorities, and there was no positive outcome.
[15] This is corroborated by the NDP as well. Item 6.1 states that,
[As Read] While homosexuality itself was decriminalized in the Bahamas in 1991, there continues to be a significant stigma against homosexuality that persists.
There is no official mechanism to document and monitor human rights violations against the LGBTQ community and there is no recourse available to victims of discrimination, based on sexual orientation.
Authorities in the Bahamas have not developed policies to counteract homophobia and across the region, there is a major problem of crimes against the LGBTQ community, remaining unsolved.
[16] The evidence indicates that this lack of resolution to solve these crimes is due to either discrimination or incompetence or a general apathy in the police force. Further, crimes that are investigated face difficulties as the community itself and at times, friends and families of victims do not provide sufficient information to resolve matters.
[17] Item 1 also indicates that in the judiciary, there is a pattern of believing the person to be straight over the person perceived to be LGBTQ, and in cases of murder of LGBTQ persons, the accused often goes without conviction and uses a penal code justification of force against a person in situations of extreme necessity, which includes forcible unnatural crime. And this causes the statute to be used to discriminate against LGBTQ people and to justify killings in response to alleged advances. I, therefore, find the presumption of state protection, in this case, is rebutted.
Internal Flight Alternative
[18] I have examined whether a viable internal flight exists for you. Based on the evidence on file, I find that you both face a serious possibility of persecution throughout the Bahamas as the anti-LGBTQ attitudes and homophobic community is prevalent throughout the country. Therefore, there is no part of the Bahamas where you would be safe. And so, there is no internal flight alternative available to you.
CONCLUSION
[19] In light of the preceding, I conclude that you are refugees, pursuant to Section 96 of the Immigration and Refugee Protection Act. Accordingly, I accept your claim.
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