Citation: 2021 RLLR 74
Tribunal: Refugee Protection Division
Date of Decision: June 14, 2021
Panel: Jennifer Smith
Counsel for the Claimant(s): Kate Forrest
Country: Malawi
RPD Number: VC1-02500
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
[1] MEMBER: Alright we are back on the record.
[2] These are the reasonsfor decision in the claim of XXXX XXXX XXXX a citizen of Malawi who is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[3] In rendering my reasons I have considered and applied the chair person’s guidelines on women refugee claimant’s fearing gender related persecution and the chair person’s guidelines on proceedings before the IRB involving sexual orientation and gender identity and expression.
[4] Miss XXXX you are Zambian born citizen of Malawi and allege that you are at risk of harm in both Zambia and Malawi because you are a lesbian and you have been recently diagnosed with HIV. You believe you are at risk in both countries from family members, the state and civil society.
DETERMINATION:
[5] In my determination I find that you are a Convention refugee in accordance with Section 96 as you have established a serious possibility of persecution.
[6] I note that Canadian jurisprudence and the gender guideline makes it clear that RPD members are to consider the interplay between multiple grounds of persecution advanced by a claimant. I find the persecution you face has separate and intersecting connections to the convention on account of your membership in particular social groups based on both sexual orientation and HIV status.
IDENTITY:
[7] With respect to identity, I find that your identity as a national of Malawi is established by the passport and other identity documents in evidence at Exhibits 1 and 5.
COUNTRIES OF REFERENCE:
[8] With respect to countries of reference in your claim, you through your counsel have agreed that you also have access to citizenship in Zambia.
[9] I note that this position is consistent with the country conditions evidence before me, specifically the National Documentation Package for Zambia at Tab 3.3, which indicates that a person born in Zambia to a parent with Zambia citizenship also has access to Zambian citizenship.
[10] Because a refugee claimant must demonstrate that they have a well founded fear of persecution in all countries of nationality before they can receive refugee protection in Canada, I must assess your claim with respect to both countries of reference in your claim these countries of reference are both Malawi and Zambia.
CREDIBILITY:
[11] With respect to credibility, I find you to be a credible witness and I believe what you have alleged in support of your claim.
[12] I note as well that you have provided significant corroborative documentary evidence in relation to both aspects of your claim and I find that through your testimony and the supporting documents at Exhibits 5 and 6 you have established on a balance of probabilities both your sexual orientation and your HIV status.
OBJECTIVE EVIDENCE:
[13] To establish your status as a convention refugee you had to show that there was a serious possibility that you would be persecuted if you were removed to either of your countries of nationality and I find that you have met that burden.
[14] As noted just a moment ago, I accept that you have established that you are a lesbian woman with a HIV diagnosis.
[15] In my view it is important to assess the objective evidence relating to the prospective or forward facing risk for you in each country with the express acknowledgement that your claim engages inter-related grounds of persecution and that each increases the risk of persecution in relation to the other. In other words, they are not truly separate or separable.
[16] First with respect to Malawi, the country conditions evidence reflects a nation in which state institutions are deeply impacted by corruption, where the law criminalizes sexual minorities and where person’s living with HIV are mistreated by civil society, state and medical system actors.
[17] Sources in the National Documentation Package from Malawi at Chapters 2, 5 and 6 and your own documents at Exhibit 5 confirm that consensual same sex activity is illegal and the law does not prohibit discrimination against LGBTI persons.
[18] Sexual minorities risk mob attacks, routine violence and discrimination in almost all aspects of life, according to a Human Rights Watch report that is located at Tab 6.1 of the NDP.
[19] As well, very recently the Malawi Parliament in amending the penal code to expand criminalization of same sex sexual activity to women as well.
[20] I find that the risk you face in Malawi is further magnified by your HIV status. The country conditions documents, also demonstrates severe stigma, ostracism and discrimination for persons living with HIV, including in accessing and receiving medical care.
[21] I find that your HIV status alongside rapid, official and social homophobia in Malawi amounts to persecution and I find there is a serious possibility of persecution for you if you were to return to Malawi.
STATE PROTECTION MALAWI:
[22] I also find there is clear and convincing evidence before me to rebut the presumption of adequate state protection in Malawi. According to the sources already cited, you fear state actors with good reason, given the criminalization of homosexuality and the fact that you are a lesbian. The presumption of state protection in Malawi has been rebutted.
INTERNAL FLIGHT ALTERNATIVE MALAWI:
[23] I have also considered whether a viable internal flight alternative exists for you and given the illegality of your sexual orientation in Malawi I find that you face a serious possibility of persecution throughout the country.
[24] Second with respect to Zambia, the country conditions evidence it Exhibit 5 is similarly clear about the National Documentation Package for Zambia and your documents at Exhibit 5 is similarly clear about the existence of laws criminalizing same sex, sex acts and a context of social and state sponsored homophobia.
[25] In Zambia sexual minority persons living with HIV are further stigmatised in relation to healthcare and have been expressly excluded from the countries national framework for addressing HIV. Both persons with sexual minority identities and persons living with HIV are severely mistreated and stigmatised in all aspects of life in Zambia and the risk of persecution is even greater for persons with both of these identities, that is persons that are both sexual minorities and living with HIV.
[26] Because of your identification as a lesbian and your HIV diagnosis, I find there is a serious possibility of persecution for you if you were to return to Zambia.
STATE PROTECTION ZAMBIA:
[27] With respect to state protection I find it would be objectively unreasonable for you to seek protection in the state for Zambia, given the current legislation and the fact that the government is an agent of persecution. The presumption of state protection has been rebutted in Zambia as well.
INTERNAL FLIGHT ALTERNATIVE ZAMBIA:
[28] And finally I have considered whether a viable internal flight alternative exists for you in Zambia. I find that it does not, on the evidence before me I find there is a serious possibility of persecution throughout the country, since the laws apply across the country and you cannot be expected to hide from the state.
CONCLUSION:
[29] So for the reasons I have just outlined I conclude that you are a Convention refugee in accordance with Section 96 of the Immigration and Refugee Protection Act. I accept your claim.
[30] So that is the end of my decision and just before we leave today Miss XXXX I want to say thank you very much for your testimony and good luck to you.
[31] CLAIMANT: Thank you, thank you so much for accepting me.
———- REASONS CONCLUDED ———-