Citation: 2021 RLLR 71
Tribunal: Refugee Protection Division
Date of Decision: June 24, 2021
Panel: Kristy Sim
Counsel for the Claimant(s): Mo Vayeghan
Country: Morocco
RPD Number: VC0-04508
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada being delivered orally on June 24th, 2021 in the claim of XXXX XXXX. I have considered your testimony and the other evidence in the case and I’m going to give you my decision orally. You will, however, receive a written transcript of this decision in the mail. Throughout the hearing and in in making my decision, I have considered and applied Chairperson’s Guidelines Guideline 9 as this case involved sexual orientation, gender identity and expression as well as Chairperson’s Guideline 4 which relates to gender-based persecution as that also relates to the nature of the allegations and the availability of a viable IFA.
[2] The decision I have reached is a positive one (1) and I accept your claim. I find that you are a Convention refugee, and my reasons follow.
[3] You are a citizen of Morocco and are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.
[4] To summarize your allegations which are set out in full in your Basis of Claim form at Exhibit 2. You are a 24-year-old woman originally from Rabat who identifies as a lesbian. Starting around the age of 13, you noticed that you were attracted to girls. Your family lived in various countries as you grew up due to your father’s job and when your family returned to Morocco when you were 15 years old, you began to attend what you’ve described as a liberal minded French high school. The school was a bit more open than society, but you still didn’t feel safe being open about your sexuality other than to a few friends of yours. Your first same-sex relationship was with a classmate at this school who was named XXXX and you were about 18 years old. You mostly hung out with her in her bedroom and would play video games and do other activities. Due to the criminalization of same-sex relationships, you two (2) were very careful when you went out together in public. You intended to go to school abroad because you felt the need to escape Morocco in order to not live-in fear or in secret. You came to Canada as a student in 2015, the same year that you graduated from high school; and have been on student visas in Canada since then.
[5] You filed for refugee protection in late 2020. You explained that you did so then because you knew that you liked living in Canada, that you could see yourself with a future here and because going back to Morocco was not an option for you given your sexual orientation. You have not told your father that you are a lesbian as you are afraid of his reaction and his possibly rejecting you. Recently, your mother asked you if you would be interested in dating women and when you told her you would, she moved on with the conversation and did not ask you any further questions which led you to believe that she wasn’t really ready or open to talk about that yet. You fear that if you return to Morocco, you will face persecution, possibly even arrest as well as other risks due to your sexual orientation.
Identity
[6] Your identity as a national of Morocco is established by your testimony as well as documents including your passport that has several visas in it which is Exhibit 1. You testified about the information in your identity documents is consistent. I have no reason to question their authenticity and so I’m satisfied of your identity.
Credibility
[7] There is a presumption that sworn testimony is true unless there are valid reasons to doubt their truthfulness and, in your case, I find there was no serious reasons to doubt the truthfulness of your testimony. Your testimony that was direct and spontaneous. You didn’t exaggerate or tailor your evidence. There were no material inconsistencies or contradictions. You testified about coming to realize your sexual orientation and about how it felt being with a girl versus being with a boy. You credibly talked about your first same-sex relationship in Morocco when you were still in high school and how XXXX went on to study in France. You also testified about a young woman named XXXX (ph) that you dated for about a year and a half in Canada and how your relationship ended, and she returned to Malaysia. You are no longer in contact with either of these women and so I accept that you are not able to get a declaration from them or have them testify on your behalf. You testified about a dating app for women that you used and how you met XXXX (ph) who you casually dated for a while in 2020 but that due to the pandemic, that ended, and you found it difficult to socialize or date since.
[8] You provided corroborating evidence to support your testimony in the form of a photograph of yourself at a pride event in Vancouver with some friends of yours. You also provided a letter from XXXX XXXX who has been your friend since you arrived in Canada in 2015. In his letter, he attests to you taking a while to tell him about your sexual orientation despite his telling you almost immediately about his being gay. He also attests to you attending a pride event with him and to his socializing with you and XXXX. He also explained how COVID has affected your ability to socialize and date in Canada. I accept that you’re a lesbian and that you have a subjective fear of persecution in Morocco due to your sexual orientation. In addition to which I accept that you found it difficult to live in that society as a result of your agnostic beliefs and being a woman there. Your claim has a nexus to a Convention ground by reason of your membership in a particular social group due to your sexual orientation therefore, I have assessed the claim under section 96 of the Act.
[9] The objective evidence in the National Documentation Package as well as the reports and articles that you provided at Exhibit 3, corroborate your fear of persecution on the basis of your sexual orientation. Sexual relations between people of the same sex are illegal in Morocco. There are no laws to protect LGBT persons against discrimination or hate crimes nor are they protected against being terminated from their employment on account of their sexuality. LGBT individuals also risk physical, societal and institutional violence and I’m citing NDP Item 6.3. More recently, members of the LGBT community have also faced internet-based abuse through online attacks against individuals who are presumed to be gay or lesbian who have been outed by people trolling same-sex dating sites which has led to their being ostracized by their family and community, expelled from housing, by relatives or landlords and dismissed from their employment and there, I refer to NDP Item 6.5. A research report by the IRB in 2013 cites one (1) source as saying that convictions for homosexuality are rare and that the criminal code provisions are infrequently enforced, and that homosexuality is tolerated in Morocco. That’s NDP Item 6.1. However, the same report cites an NGO which estimates that since independence in 1956, more than five (5) thousand individuals have been prosecuted for violating the criminal code provisions around same-sex relations. It also refers to lesbians being at risk of imprisonment, discrimination and violence in addition to being shunned by families or forced into heterosexual marriage.
[10] The US State Department report notes that 122 individuals were prosecuted for same-sex sexual activity in 2019. That’s NDP Item 2.1 and there is also a 2019 report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association found at NDP Item 6.2 which documents individuals being arrested and imprisoned for being gay quite recently. The article you disclosed at Exhibit 4 page 11 also lists numerous incidents of violence and arrest of individuals for being gay or lesbian. I also note that you provided a 2020 article by a lesbian woman from Morocco who stated much as you did that “my misogynist and oppressive Muslim society taught me one (1) thing, keep your sexuality and non-conformity to yourself, do not risk your safety and do not bring shame to your family”. And that was at Exhibit 4, page 9. I’m satisfied on the evidence before me that you would face a serious possibility of persecution in Morocco on account of your sexual orientation.
State Protection
[11] A state is presumed to be capable of protecting its citizens and to rebut this presumption, a claimant must establish on a balance of probabilities with clear and convincing evidence that the state’s protection is inadequate. In this case, it is the state that is the agent of persecution and you cannot be expected to seek the protection of a state where that state permits and even enables the persecution of LGBT individuals. I find that there’s clear and convincing evidence that the state is unwilling to protect you.
[12] And finally, turning to internal flight alternative. For an internal flight alternative or IFA to be viable in a section 96 analysis, there must be no serious possibility of a claimant being persecuted there. Further, the conditions in the IFA must be such that it would not be unreasonable in the circumstances for a claimant to seek refuge there. The IFA is not viable of either of these two (2) conditions are not met. Based on the evidence before me, LGBT, anti-LGBT laws and attitudes exists across the country. It is well established that being compelled to conceal one’s sexual orientation constitutes a severe interference with your fundamental human rights and that a claimant cannot be compelled to do so in order to avoid the serious possibility of persecution. As such, I find that you would be unable to live safely elsewhere in Morocco and therefore there is no viable internal flight alternative.
[13] Having considered all of the evidence, I find that there is a serious possibility of persecution if you return to Morocco and so I accept your claim under section 96 of the Act.
———- REASONS CONCLUDED ———-