Citation: 2021 RLLR 64
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2021
Panel: Warren Chin
Counsel for the Claimant(s): Ian Wong
Country: Pakistan
RPD Number: TC0-03936
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision for the claimant Mr. XXXX XXXX XXXX. File number TC0-03936. Hearing date is December 16, 2021. My name is Warren Chin, and I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. The claimant is claiming to be a citizen of Pakistan and is claiming refugee protection pursuant to Section 96 and subsection 97.1 of the Immigration and Refugee Protection Act.
DETERMINATION
[2] I find that the claimant is a Convention refugee on the grounds of his sexual orientation. Considering there is a nexus between what he fears and Section 96, namely on the grounds of his inclusion in a particular social group, I have assessed his claim under Section 96.
ALLEGATIONS
[3] The claimant’s allegations are found in his Basis of Claim form, which are found in Exhibit 2. In summary, the claimant alleges persecution from extremist groups, members of his external family, and the police due to his sexual orientation as a gay man.
[4] The claimant alleges that he was married as arranged by his family due to increasing pressure from them. The claimant alleges that he had an affair with his same sex partner which stemmed from 2004 in the UAE, which continued after his wife and his family returned to Pakistan in 2017.
[5] The claimant alleges after he returned to Pakistan on or about XXXX of 2019, he reunited with some former same sex partners, XXXX and XXXX, where they engaged in intimate acts. The claimant was caught by XXXX father and the altercation was overheard by members of the community. The claimant later learned that a Fatwah had been issued ordering the claimant to be killed for indecent acts contrary to Islam, and that he would be sought and killed by his family as well as the police.
[6] The claimant’s family subsequently went into hiding in Lahore. The claimant decided to flee to the United States and did so in XXXX of 2019. He went to Dubai to wind up his business and transited through Pakistan where he stayed for two days and then went to the United States. In July of 2019, the claimant learned that Muslim extremists had visited the home of XXXX, and harmed XXXX parents.
[7] The claimant arrived in Canada in XXXX of 2020 and made a claim shortly thereafter. The claimant alleges that he will be harmed or killed anywhere throughout Pakistan and he will not be protected.
IDENTITY
[8] The claimant’s identity has been established on a balance of probabilities as a national of Pakistan by his testimony and the supporting documents, namely the certified copies of his passport and national ID card, which are found in Exhibit 4.
CREDIBILITY
[9] I do find this claimant to be an overall credible witness and I therefore believe what he has alleged in support of his claim. He testified in a straightforward manner. He spoke naturally and didn’t embellish his story. He gave spontaneous details and there were no relevant inconsistencies in his testimony, or contradictions between his testimony and the documentary evidence before me which have not been explained in a satisfactory manner.
[10] In support of his claim he provided a copy of the Fatwah and an affidavit from his same sex partner XXXX, as well as affidavits from the claimant’s spouse and another close friend. After review of these documents I find that they are materially conformed to the claimant’s allegations.
[11] After coming to Canada the claimant had three same sex relationships which were causal in nature. In support of his activities in Canada, the claimant disclosed photographs of the claimant attending night clubs and photographs of the individuals who he claims to have had relationships with. He also disclosed letters from the executive director of the 519, and also a coordinator, as well as several donation slips. That can be found in Exhibit 8. I find that these documents also conform to the claimant’s allegations in respect of his sexual orientation, and that the same sex activity continues to the current date.
[12] I did have concerns with the claimant’s national ID card indicating an address in Lahore which was before the precipitating event which caused the claimant and his family to go into hiding of June 2019. The claimant explained that he used his in-laws address who had a home in Lahore in order to prevent the inconvenience of having to change it from the Pakistani embassy in Dubai. I accept this explanation as reasonable.
[13] I also had concerns about the claimant having seemingly reavailed himself of the protection of Pakistan after returning to Pakistan in XXXX of 2019 before travelling to the United States in XXXX of 2019. The claimant explained that his daughter was sick and during counsel’s questioning on this matter, the claimant explained that he had intentions to stay in the United States to possibly make a claim which the claimant understood to be a long-term endeavour. I accept that the claimant being a father would take a risk to see his children one last time before permanently relocating to another country despite the threats made against him.
[14] On the basis of the documentary evidence combined with the claimant’s testimony, I accept the claimant’s allegations as set out in his Basis of Claim form. In particular, I find that the claimant is a homosexual male who has a Fatwah ordering in the claimant’s name, which would subject him to serious harm or persecution if he were to be discovered in Pakistan on account of his sexual orientation.
OBJECTIVE BASIS
[15] I also find that the objective country condition evidence supports the claimant’s allegations. The objective evidence indicates that it’s not uncommon for Pakistani men to live a dual life.
[16] The objective evidence states that most gay men spend their life in guilt carrying a burden of sins. In their society they only have two options. One is to come out of the closet and live a horrible life in being bullied, and the other is to conceal their sexuality for the rest of their lives and people usually choose the second option. They get married. They start a dual life. One for family and society, and the other for their own satisfaction.
[17] While sex between males is common, homosexual identity is not. So strong and widespread cultural, religious, and sexual intolerance of homosexuality means that it is not widely discussed or acknowledge in Pakistan. This is consistent with the claimant’s testimony in respect of his dual life, and in my view is a valid reason for his heterosexual marriage in 2008 in Pakistan.
[18] I also note that the objective evidence indicates that there are state sanctions against homosexuality in Pakistan. The objective evidence indicates that the Pakistan Penal Code does not specifically refer to homosexuality but deals with this in its’ description or definition of actions that go against the natural order, specifically Section 377 states that whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life, or with imprisonment of not less than two years and not more than ten years and shall also be liable for a fine. This definition is usually read as prohibiting non-heterosexual sexual activity. There are also grave consequences in Sharia law that’s evidenced by the objective evidence before me.
[19] Regarding the punishment for homosexuality, there is consensus among leading Sunni schools of thought, and most Islamic scholars that homosexual acts are a major sin and may be punishable by death. The IRB has noted in its’ report covering events between 2017 and 2019 indicate that according to sources, under Sharia law, homosexuals face the death penalty in Pakistan.
[20] The objective evidence goes on to state that Islamic scholars who consider that the punishment of homosexuality is the death sentence and that married men who are offenders face a mandatory death sentence as opposed to unmarried men who would be subjected to floggings. This information can be found in Exhibit 3, item 6.8 and paragraph 3.3 to 3.4, and paragraphs 5.2. I find that the claimant’s subjective fears has an objective basis.
STATE PROTECTION
[21] The claimant’s agent of persecution is the state and general society and the objective evidence indicates that most hate crimes against the LGBTQ people in Pakistan often go unreported or are out of the public spotlight. It also indicates that where gay men or lesbians are murdered, the family doesn’t often report the motive of the crime in order to not dishonour the family or they simply state that it was an honour killing or a suicide.
[22] USIDHR report dated 2018 notes that crimes against the LGBTQ community often go unreported and that police generally take little action when they do receive reports. During the recent years there have been reported cases of individuals who are arrested for crimes against members of sexual minorities.
[23] The objective evidence similarly states that regarding the obstacles for sexual and gender minorities to report incidents to the police, it states that having ones’ sexual orientation or gender identity revealed might increase risks and threats to the safety and the life of the individual.
[24] At a state level the Pakistani government has been vocal at the international level being vocal about the human rights council and various UN meetings in respect of its’ refusal to embrace SOGI in respect of various human rights claims. Given the objective evidence noted above, I find it objectively unreasonable for the claimant to seek out any state protection and that state protection cannot be seen as being reasonably forthcoming, therefore I find the presumption of state protection is rebutted in this instance.
INTERNAL FLIGHT ALTERNATIVE
[25] Given that the claimant’s agent of persecution is the state and in consideration of the objective evidence as stated above, I find that the claimant has established on a balance of probabilities that he would not be safe throughout Pakistan if he were forced to return. The first prong of the Internal Flight Alternative analysis is not met, and therefore an Internal Flight Alternative is not available to this claimant.
CONCLUSION
[26] I therefore find on a balance of probabilities that the claimant would face a serious possibility of persecution if returned to Pakistan on account of his sexual orientation, and therefore on the basis of the totality of the evidence I accept the claimant’s claim pursuant to Section 96 of the Immigration and Refugee Protection Act. I find that he is a Convention refugee. Sir, your claim is accepted.
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