2022 RLLR 128

Citation: 2022 RLLR 128
Tribunal: Refugee Protection Division
Date of Decision: October 18, 2022
Panel: Jessica Khalil
Counsel for the Claimant(s): Patrizia Ruscio
Country: Jamaica
RPD Number: MC2-02080
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A

 

REASONS FOR DECISION

 

[1]       The claimant, XXXX XXXX XXXX, a citizen of Jamaica, is claiming refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

 

DETERMINATION

 

[2]       The panel determines that the claimant is a “Convention refugee” under section 96 of the IRPA by reason of his sexual orientation, specifically his membership in the particular social group of bisexual men.

 

ALLEGATIONS

 

[3]       The claimant fears persecution at the hands of a group of individuals who have threatened him in the past in Jamaica because of his sexual orientation.

 

IDENTITY

 

[4]       The claimant’s identity has been established, on a balance of probabilities, by means of a copy of his passport submitted in evidence.[1]

 

ANALYSIS

 

[5]       The panel considered this claim under section 96 of the IRPA, as it is of the opinion that the harm in question constitutes persecution on one of the Convention grounds, namely membership in a particular social group, specifically by reason of sexual orientation.

 

[6]       The panel considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.[2] 

 

Credibility

 

[7]       The claimant’s testimony was sincere and spontaneous, though vague at times. The panel finds that the claimant was generally credible, in that his testimony was free of any contradictions, inconsistencies or omissions that were not explained to the panel’s satisfaction.

 

[8]       The claimant testified that he identifies as a bisexual man. He stated that he had been in relationships with women, but only until 2000. Since 2000, he has only dated men because he feels more comfortable with men. He stated that he discovered his attraction to men as a teenager. He had two children with his former spouse, but while he was in a relationship with her, he was also seeing a man named XXXX XXXX XXXX. in secret. He stated that he was in a relationship with this man for 12 years, but that he hid the relationship during this time because same-sex acts between men are considered a crime in Jamaica.

 

[9]       The claimant stated that he was first attacked by a group of individuals who saw him with XXXX XXXX XXXX XXXXand assumed they were a couple. After the attack, he fled to Suriname for five years. He stated that the perception of the LGBTQ community in Suriname is similar to how it is perceived in Jamaica. He was therefore discreet about his sexual orientation while he was there. He explained that he returned to Jamaica in 2018 because his father was seriously ill. After returning there, he was attacked a second time. Following this second attack, he took refuge in the city of Kingston, but travelled discreetly a few times to see his father. When his father died, he decided to come to Canada. He initially arrived in Canada on a work permit and claimed refugee protection a few months later.

 

[10]     The panel had some concerns, but the claimant addressed them satisfactorily. The panel asked why the claimant had returned to Jamaica in 2018 after having fled the country. The panel also asked why the claimant had not come to Canada earlier and why he had not claimed refugee protection immediately upon his arrival. The claimant stated that he had been forced to return to Jamaica in 2018 because his father was ill. He explained that his father was alone and that he was the only person who could look after him. He also stated that he had been looking for a way to leave Jamaica and had been researching ways to do so, but had not wanted to leave while his father was still alive. He explained that during the last months he spent in Jamaica, he had been sneaking around to avoid being spotted by the individuals who had previously assaulted him. As soon as his father died, he left the country for good. He also stated that he had travelled here on a work visa. When he left his job in Canada, he was told that he would have to return to Jamaica, and because he was afraid for his life, he decided to claim refugee protection. The panel is of the opinion that the claimant has provided satisfactory explanations in the circumstances and that his conduct does not demonstrate a lack of subjective fear or undermine his overall credibility.

 

[11]     Accordingly, the panel concludes that the claimant has established his sexual orientation as a bisexual man and his fear by reason of this profile, on a balance of probabilities.

 

Well-founded fear of persecution

 

[12]     The objective evidence in the National Documentation Package[3] indicates that homophobia is widespread in Jamaica and that members of the LGBTQI community face widespread persecution. As a result, SOGIESC individuals “face both general societal discrimination as well as discrimination in access to services, including healthcare, housing, and employment.”[4]

 

[13]     According to some sources, same-sex acts between men are illegal in Jamaica. Thus, SOGIESC individuals face arrest and detention because of their sexuality.[5] Physical and sexual violence, including beatings and even murder, are part of the real experiences of many SOGIESC individuals in Jamaica. The level of brutality leads many to fear what could happen if their sexual orientation or gender identity were discovered.[6]

 

[14]     With regard to employment, sources report that “employment discrimination continues to be a significant issue for the LGBT community” and that members of sexual minorities who live in the open are “basically unemployable.” SOGIESC individuals are also discriminated against with respect to housing, as there are reports of people facing evictions because of their sexual orientation.[7]

 

[15]     Conditions for SOGIESC individuals in Jamaica have improved, although they remain a problem given the deeply rooted homophobia in Jamaican society. Human rights advocates in Jamaica have actively promoted respect, acceptance, and inclusion of sexual and gender minorities, leading The Guardian newspaper to report in December 2018 that Jamaica was “no longer the most homophobic place on Earth.”[8]

 

[16]     The latest US State Department report on human rights in Jamaica states that the law does not extend antidiscrimination protections to SOGIESC individuals and “legitimizes violence towards LGBTI+ persons.”[9] Harassment and violence against SOGIESC individuals are frequently ignored by the police, and discrimination is pervasive.[10]

 

[17]     Based on this objective evidence, despite recent progress, LGBTQ individuals continue to face widespread persecution in the country, and the country’s laws do not protect SOGIESC individuals from the discrimination they face in various aspects of their lives, including housing and employment. Furthermore, violence against SOGIESC individuals remains a major concern in the country and is frequently ignored by the police.

 

[18]     For these reasons, the panel considers that the claimant has established a well-founded fear of persecution as a bisexual man in Jamaica.

 

State protection

 

[19]     According to the objective evidence, although the situation for SOGIESC individuals in Jamaica has improved somewhat, sources reported as recently as 2020 that “[h]arassment and violence targeting LGBT+ people remains a major concern, and such instances are frequently ignored by the police.”[11]

 

[20]     While Jamaica’s police force implemented a diversity policy in 2011, which includes guidelines on the treatment of sexual minorities, Human Rights Watch reports that the police continued to make derogatory comments when people tried to report homophobic violence and failed or refused to take a report, “even well after the Policy on Diversity was established.”[12]

 

[21]     Given this objective evidence that Jamaican police officers often ignore requests for protection from SOGIESC individuals, the panel concludes that it is not reasonable to expect the claimant to approach the police.

 

[22]     In light of the objective documentary evidence mentioned above, the panel concludes that there is clear and convincing evidence that the claimant would not have access to adequate state protection. The presumption of state protection is therefore rebutted.

 

Internal flight alternative

 

[23]     As stated earlier, sexual relations between men in Jamaica are prohibited under the Offences Against the Person Act 1864, which criminalizes acts of “buggery” and “gross indecency.” This law carries a maximum penalty of 10 years’ imprisonment with hard labour.[13] The law is applied indiscriminately, and the state has full governance over the entire territory. Moreover, the claimant cannot be expected to conceal his sexual orientation in order to avoid persecution.

 

[24]     Accordingly, the panel concludes that the claimant would face a serious possibility of persecution throughout Jamaica and that he would have no viable internal flight alternative should he return to his country.

 

CONCLUSION

 

[25]     For these reasons, the panel determines that the claimant is a “Convention refugee” under section 96 of the IRPA.

 

[26]     Accordingly, the panel allows the claim for refugee protection made by XXXX XXXX XXXX.

 

 

Jessica Khalil

 

October 18, 2022

 

 

[1] Document 1 – Information package provided by the Canada Border Services Agency or Immigration, Refugees and Citizenship Canada: Passport.

 

[2] Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. Effective date: May 1, 2017. Revised on December 17, 2021: Proceedings before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.

 

[3] Document 3 – National Documentation Package (NDP) on Jamaica, May 31, 2022, Tab 6.1: Treatment of sexual minorities, including legislation, state protection and support services (2013-December 2015). Immigration and Refugee Board of Canada. February 12, 2016. JAM105416.E.

 

[4] Idem, Tab 6.1.

 

[5] Document 3 – NDP on Jamaica, May 31, 2022, Tab 6.7: Country Policy and Information Note. Jamaica: Sexual orientation and gender identity. Version 2.0. United Kingdom. Home Office. February 2017.

 

[6] Idem, Tab 6.7.

 

[7] Supra, footnote 4, Tab 6.1.

 

[8] Document 3 – NDP on Jamaica, May 31, 2022, Tab 6.5: Jamaica. State-Sponsored Homophobia 2019: A world survey of sexual orientation laws. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Lucas Ramón Mendos. March 2019.

 

[9] Document 3 – NDP on Jamaica, May 31, 2022, Tab 2.1: Jamaica. Country Reports on Human Rights Practices for 2021. United States. Department of State. April 12, 2022.

 

[10] Document 3 – NDP on Jamaica, May 31, 2022, Tab 2.3: Jamaica. Freedom in the World 2021. Freedom House. 2021.

 

[11] Idem, Tab 2.3.

 

[12] Supra, footnote 6, Tab 6.7.

 

[13] Document 3 – NDP on Jamaica, May 31, 2022, Tab 6.6: Jamaica: Types of criminalisation. Human Dignity Trust.