2022 RLLR 114

Citation: 2022 RLLR 114
Tribunal: Refugee Protection Division
Date of Decision: March 14, 2022
Panel: Laurie Letheren
Counsel for the Claimant(s): Daniel Radin
Country: Turkey
RPD Number: TB9-31315
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A

DECISION

[1]       MEMBER: I have had an opportunity to review all of your evidence and all of your answers to my questions today, and I am now ready to deliver my decision orally. And I have found that you are a Convention refugee based on the risk that you face in returning to Turkey, the risk persecution as a gay man. So, I have accepted your claim today.

[2]       CLAIMANT: Thank you very much. Like, for saving my life, I do not know what to say. I really appreciate it.

[3]       MEMBER: You do not need to say anything. But I appreciate that, and welcome. I am glad that I was able to accept your claim. I do need to provide more fulsome reasons for my findings. You will receive a copy of those reasons in the mail, and your Counsel will also receive a copy. Mr. Radin, I just wonder would you like to have my more fulsome reasons fully interpreted?

[4]       COUNSEL: Madam Member, I think it is okay, because if the claimant has any questions, he can speak to me about the decision as well. So, that is not a problem. Whatever is better for the board. Thank you.

[5]       MEMBER: All right. So, if you could just explain to Mr. XXXX that I am going to be giving, just my full reasons, but that the main thing that he needs to know is that I am accepting his claim. My full reasons will not be interpreted today, but if you have any questions at the end, we will be happy to answer them. Okay. All right. Thank you. So, this is the decision in the claim for refugee protection made by XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, file number TB9 31315. I have considered your testimony and the documentary evidence, and I have found that you are a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act. The details of your claim are documented in your Basis of Claim form and the amendments to that claim at Exhibits 2 and 5. I have also reviewed all the documents that were entered at Exhibit 6. As I indicated, you will receive a notice of this decision in the mail, and your Counsel will also receive a copy. You, XXXX XXXX, claim to be a citizen of Turkey, and you are claiming refugee protection pursuant to section 96 and 97 of the Immigration and Refugee Protection Act. In reaching my decision, I have considered and applied the chairperson’s guideline number 9, proceedings before the Immigration and Refugee Board of Canada involving sexual orientation and gender identity and expression, the SOGIE guidelines.

[6]       In summary, you fear persecution in Turkey at the hands of your family, society, and the Turkish state, due to your membership in a particular social group as a gay man. You are a 27-year-old man who is a Turkish citizen. You indicated that you began to discover your attraction to boys when you were between the ages of 11 and 13 as you realized that you were different from the other boys that you knew. You were attracted to boys and men when they seemed to be attracted to girls and women. You could not share your understanding of your sexual orientation with others, and in fact, you tried not to believe it as it was difficult for you to be able to live in this way, and you knew that it would be difficult. You had your first sexual relationship with a man when you were about 16, who was a friend from school. Again, you could not share your relationship with anyone else, out of fear of what could happen to both of you should your relationship be discovered. You were aware that your father and other family members were homophobic and had often heard them express opinions that gay men were unnatural or unhuman. Your family is Muslim, and gay relationships are not accepted in the Muslim faith. You are also very aware of the expectations of men in Turkish society, and that you were to marry women and have children. Gay men were not to be tolerated as they tainted the Turkish society and so therefore, they should be killed.

[7]       When you were 16 or seven (7) (sic) you began to attend gay bars where you met another man and had a relationship. At that time, you also attended and supported the LGBTQ community at protests, and you were once detained by police who stopped you on your way to attend such a protest. At the time of these protests, you also heard your uncle and father make homophobic slurs while speaking about the protests. You had a number of casual relationships after your relationships when you were younger, and in 2018, you and some friends were harassed when you were leaving a gay bar, and you were threatened by the men who then damaged your friend’s car. You explained how you could not report this incident of damage to the car to the insurance, as this would require a police report. When asked why that would cause difficulty or danger to you, you indicated that the police would ask questions, and the answers to the questions would reveal where you had been, that you had been at a gay club, and therefore reveal that you were a gay man. You said this could then remain on your file, which could be released as information to future employers or to the military if you were called to serve. In 2019, you began a relationship with XXXX (ph). At time you and XXXX would exchange intimate photos through messages sent between your phones, and in XXXX 2019, XXXX was detained by police, who you learned took and examined his phone. You were called to the police station, and when you arrived, you were taunted by the police for being gay. You were called the wife of the gay man and you were only able to get XXXX released after paying a large amount of money as a bribe. After his release you went to XXXX home. Your brother called you and told you that he and your father were at the police station, had gone there to find you, and that the police had told your brother and your father that you were a gay man, and they had shown you the photos that they had from XXXX phone. Your father made homophobic slurs to you and threatened to harm you. Out of fear you went to stay with another friend. You later called your brother, and you were able to safely meet him. He warned you not to return to your home as your father and uncle were planning to kill you. He encouraged you to try to go to Canada, as he understood that you could live safely in Canada as a gay man. Your brother then assisted you in leaving Turkey, and you arrived in Canada on XXXX XXXX, 2019. Since your arrival in Canada, you have been surprised, as you indicated, you had been surprised to see the freedom of people with diverse sexual orientation and gender identity, and that they have the ability to openly express themselves and show their attractions to one another without being any risk to their safety, and they can do this openly and freely. You have expressed that due to COVID and the restrictions placed in society, you have not been able to get involved in any LGBTQ positive groups, but that you look forward to joining such groups and supporting others when things are open again and you are able to attend.

[8]       On XXXX XXXX, 2019, after arriving in Canada, you received an email from your father, which you had submitted as part of your documents. You indicated that in this letter, your father uses many homophobic slurs and threats, and he threatened to kill you for disgracing your family, threatening that you cannot hide and that you will be found, and you will be killed. Given your circumstances, I accept that you are and have shown that you are a national of Turkey, and you have established on a balance of probabilities that you are a citizen of Turkey through a copy of your passport, which is at Exhibit 1, as well as your other national identity documents and your family registry. These are all at Exhibit 6.

[9]       With regard to credibility, I found you to be a very credible witness. You testified in a sincere and forthright manner about the difficulty you face as a man in Turkey, and things that you have experienced both from your family and from society at large, and how you have felt since coming to Canada after you have left that situation in Turkey. Your testimony was free of embellishments, there were no relevant inconsistencies in your testimony or contradictions between your testimony, the other evidence in your documents, and your allegations you made in your Basis of Claim form. Given that I found to you to be credible witness, I accept what you alleged in support of your claim and that you have provided us with evidence to demonstrate that you are a gay man. Some of the evidence you provided in support of your claim, which are at Exhibit 6, include witness statements from your friend who knew you and knew about your experiences when you lived in Turkey, from XXXX your former partner, medical documents, text messages between you and some other friends, which you revealed were just exchanges that you have on applications for gay men here in Canada, as well, as indicated earlier, you provided this email from your father. So, based on the totality of the evidence, I am satisfied that you have established your sexual identity as a gay man, and I find this on a balance of probabilities. I therefore find that you have credibly established your subjective fear in returning to Turkey.

[10]     With respect to the objective evidence, the National Documentation Package for Turkey, which is at Exhibit 3, the version of December 17th, 2021, they provide consistent account that members of the LGBTQ community face persecution and discrimination in Turkey. Item 6.5 of the NDP notes that while there is no legislation prohibiting sexual acts between people of the same sex in Turkey, same-sex marriage is not legal in Turkey, and same-sex relationships are not recognized by law. Further, there is no legislation to protect people from discrimination based on their sexual orientation or gender identity, and there are no hate crime legislation projecting LGBTQ persons. Item 2.1 of the NDP is the US Department of State Report for 2020. It states that LGBTQ individuals experience discrimination, intimidation, and violent crimes in Turkey. Human rights groups reported that police and prosecutors frequently failed to pursue cases of violence against members of the LGBTQ community for accepted justification for the perpetrator’s actions. Police rarely arrest suspects or hold them to pretrial detention as is common for other defendants. When arrests were made, defendants could claim unjustifiable provocation under article 29 of the penal code and request a reduced sentence. Judges would routinely apply the law and reduce the sentences of persons who killed LGBTQ individuals. Courts of appeal previously upheld these verdicts based in part on the immoral nature of the victim. Item 1.17 of the NDP, the Australian Department of Foreign Affairs and Trade report for 2020, notes that Human Rights Groups report police have used legal provisions relating to offences against public morality, protection of the family, and unnatural sexual behaviour to justify harassment of LGBTQ persons in Turkey. Human rights groups claim that LGBTQ individuals are vulnerable to street crime and general violence due to the lack of hate crime legislation for the LGBTQ community. Item 6.5 of the NDP is a July 2020 article from Politico, which confirms the above and notes that a lack of legal protection has created a culture of impunity around hate crimes directed at LGBTQ people, and there are many instances where crimes against the LGBTQ community are not fully prosecuted. Politico also notes that numerous LGBTQ organizations report that restrictions on the freedom of speech, assembly, and association continue. LGBTQ advocates also described a rise in hate speech following controversial remarks by the President of the Directorate of Religious Affairs, which was supported by the President of Turkey. High-level government officials employed anti-LGBTQ speech, and the president warned against those who exhibit all kinds of perversions that our god’s prohibit. Again, in Item 6.5 of the NDP, Freedom House March 2020 report states that LGBTQ person’s face discrimination, police harassment, and occasional violence. The government has targeted LGBTQ events in recent years, noting that in 2019, Istanbul’s pride parade was banned for the fifth consecutive year. Furthermore, LGBTQ face discrimination in employment, healthcare, and education. In Item 6.5, the May 2020 Kaos GL report indicates there is an increase in human rights violations against LGBTQ individuals in Turkey in 2019 that originated directly from authorities and law enforcement. As well, the Australian DFAT report notes that LGBT detainees are vulnerable to physical violence, harassment, and denial of medical services, and have complained about the use of solitary combined as a form of inhumane treatment.

[11]     In summary, I find that the objective evidence is consistent with and supports your allegations of persecution and harm that would come to you if you were to live openly as a gay man in Turkey, not just from your own family who have threatened to harm you, but also from society and state. Thus, having found that you have a well-founded fear of persecution from the Turkish authorities and society, I must consider whether the state protection is available to you, or whether you could safely live elsewhere in Turkey without facing such risks. With regards to state protection, the context of Turkey and in light of the objective evidence noted earlier, I find that there is sufficiently clear and convincing evidence that state protection would not be reasonably available to you as a gay man. In regards to internal flight alternative, in light of the objective evidence I have noted, I find that there is a serious possibility of persecution throughout Turkey, and therefore, a viable internal flight alternative does not exist.

[12]     So, given the above and having considered all of your evidence, I find on a balance of probabilities that there is a serious possibility that you would face persecution in Turkey because of your identity as a gay man. I therefore conclude that you are a Convention refugee, and I accept your claim. So, unless anyone has any questions, that concludes our hearing for today.

——— REASONS CONCLUDED ———