Citation: 2022 RLLR 16
Tribunal: Refugee Protection Division
Date of Decision: May 11, 2022
Panel: Katarina Bogojevic
Counsel for the Claimant(s): Mo Vayeghan
Country: Morocco
RPD Number: VC1-06901
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
REASONS FOR DECISION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX as a citizen of Morocco who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”).[1]
ALLEGATIONS
[2] The claimant’s allegations are contained in his Basis of Claim (“BOC”) form.[2] The claimant is a citizen of Morocco who fears harm at the hands of authorities, society and his family because of his sexual orientation and because he has refused to be a practicing Muslim. He also fears gang members who have threatened to kill him because his brother informed on them while he was in prison.
DETERMINATION
[3] I find that the claimant is a Convention refugee pursuant to section 96 of the Act.
[4] In making this determination, I have reviewed and applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.
ANALYSIS
Identity
[5] I find that the claimant’s identity as a national of Morocco is established on a balance of probabilities by his sworn testimony and the copy of his Moroccan passport and identification in evidence.[3]
Country of Reference
[6] There was a question at the start of the hearing concerning whether the claimant might have a right to Algerian citizenship. The claimant was born in Morocco, but his parents were both born in Algeria.
[7] The Algerian Nationality Law Article 6 (1) states that an individual born to an Algerian father is considered a national by descent.[4] As such, I would need to know the claimant’s father’s nationality to confirm whether the claimant has a right to Algerian citizenship.
[8] I questioned the claimant about his citizenship and that of his parents. The claimant indicated they are all Moroccan. He stated that his parents were born in Algeria but are Moroccan and during Algerian independence they were displaced and sent back to Morocco. He indicated that he does not know what their status was in Algeria or why they were there. He has only met one of his grandparents and she is Moroccan.
[9] During his counsel’s questioning, the claimant confirmed that his parents are not Algerian citizens. When I asked him how he knew this, he said that he had seen on his mother’s ID card when he was younger that she was born in Algeria and at that time he had asked her whether she had nationality there or a passport or any papers and she said no. He said he asked his father the same thing.
[10] The claimant has not provided any affidavits or information from his parents concerning their Algerian citizenship. However, given that his allegations identify his father as an agent of harm, I find this to be reasonable. I asked the claimant whether he had tried to go to the Algerian consulate to ask about his status and he said that he had not. The claimant was sent a copy of the Algerian Nationality Law prior to the hearing; thus he would have been aware the question of his Algerian citizenship was in issue. However, I acknowledge that this was only sent three days prior to the hearing of this matter and so I find it reasonable that the claimant did not take these steps prior to the hearing.
[11] Having reviewed all the evidence before me, I find on a balance of probabilities that Algeria is not a country of reference. While the claimant does not know much about his parents’ status in Algeria, he did testify that they told him when he was younger that they did not have any nationality there. He also testified that his parents were displaced by the Algerian government back to Morocco, suggesting that they did not have any form of permanent status in Algeria.
Nexus
[12] In order to satisfy the definition of a “Convention refugee” found in section 96 of the Act, a claimant must establish that he or she has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group or political opinion.
[13] The claimant has alleged three different risks in this case. However, I have found the claimant’s sexual orientation to be determinative of his claim. As such, for the purposes of this decision I have focused solely on the claimant’s allegation concerning his sexual orientation. This allegation is connected to the convention on the basis of membership in a particular social group, namely sexual minorities. As such, I have assessed his claim under section 96.
Credibility
[14] When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary. A finding that the claimant lacks credibility may be based on the failure of the claimant’s account to stand up to scrutiny, or unexplained inconsistencies, omissions or contradictions.
[15] In this case, the claimant provided a very sparse BOC narrative in which he identified that his father wanted to harm him because he was no longer a practicing Muslim and was gay, and that he was threatened by a gang member due to his brother’s involvement in the drug trade. In his narrative, he referenced back to a submission letter written by his former counsel. The letter provided by counsel was in the form of submissions and not written in the claimant’s words, as such, it could not be adopted by the claimant as his BOC narrative or evidence.
[16] Prior to the hearing, the claimant’s counsel was sent a letter identifying that former counsel’s letter would be considered advanced submissions and outlining the requirements of a BOC. The claimant did not submit an updated BOC statement prior to the hearing, and he did not indicate that he needed to make any amendments to the BOC at the start of the hearing.
[17] Despite this, I have found the claimant to be a credible witness concerning his sexual orientation. Both myself and his counsel questioned the claimant on his sexual orientation and the claimant’s testimony remained consistent throughout with no major omissions or contradictions. I have also relied on Guideline 9 in making my credibility findings.
[18] The claimant testified credibly about having a difficult childhood filled with mocking and sarcasm because of the way he dressed and spoke. This is supported by an affidavit from the claimant’s uncle (his mother’s brother).[5] This bullying increased when he was around 15 or 16, after which time the claimant was involved in weekly fights. He tried to change the things about him that made him look gay and avoided talking about his sexual needs. The claimant had only two friends in school, and they were gay. One left school and the claimant lost communication with him and the other one had to change schools because of the bullying, fights, and mockery.
[19] The claimant testified that he realized he was gay when he was around 14 or 15 years old. He had had feelings prior to this but was not sure. It was at this time that he noticed that he was attracted to another boy at his school and that he did not have the same feelings towards women that his friends did. The claimant was genuine when he described that the first impression that he had when he realized that he was gay was that there was something wrong inside of him. Later, when he came to Canada and saw how the LGBTQ community lived freely and happily, he realized that the problem was not with him but with his country and community.
[20] The claimant also credibly testified about his same-sex relationships. The first occurring when he was about 15 years old. The claimant and his boyfriend at the time had a difficult time continuing their relationship and keeping it secret. They decided to separate after a short time because of the pressure on their relationship and the concern that they would be found out. The claimant was nervous to start any other relationships in Morocco because he felt that they would end the same way as his first.
[21] The claimant had one relationship in Canada. He met this individual in the gym at the beginning of the pandemic. The relationship did not last because they were not able to meet very often, however they continue to be friends. The claimant credibility testified about how this individual did not know that he was gay when they first met and that he felt that their relationship was special because it helped him to realize his sexual orientation. I asked the claimant whether he had asked this individual to write an affidavit in support of his claim and he said he did not. He offered to obtain this affidavit post-hearing; however, I find that any weight that I could place on such evidence would be limited given it is being provided after the hearing has already been conducted.
[22] Initially the claimant did have some difficulties answering his counsel’s questions related to his sexual activities. He first stated that had not had sexual relationships with men, and then later said that he had. Then he stated that he was only able to meet with his boyfriend in Morocco during school hours and not outside of school. But he later said that they had sex at his boyfriend’s house but were not able to go out in public. I acknowledge these inconsistencies; however, I rely on Guideline 9 section 3.3:
Many SOGIESC individuals conceal their SOGIESC in their country of reference out of mistrust or fear of repercussion by state and non-stat actors, or due to previous experiences of stigmatization and violence. These circumstances may manifest themselves as an individual being reluctant to discuss or having difficulty discussing their SOGIESC with a member based on fear or general mistrust of authority figures, particularly where intolerance or punishment of SOGIESC individuals are sanctioned by state officials in an individual’s country of reference.
[23] In this case I found counsel’s questioning about the claimant’s sexual activity to be very direct and it appeared to make the claimant uncomfortable. The claimant comes from a background of having to hide his sexual orientation for fear of reprisal and physical harm. This is the first time that he was speaking openly to authority figures about his sexual orientation in a formal setting. The questions that he was being asked were very intimate. As such, I find on a balance of probabilities that the claimant’s difficulty in answering questions concerning his sexual activity can be attributed to the reasoning identified above and does not negatively impact his credibility concerning his sexual orientation. Further, I find that the claimant’s sexual activity is not determinative of his sexual orientation and that the claimant was credible concerning other elements of his relationships as outlined above.
[24] I have also considered the claimant’s documentary evidence which is corroborative of his claim. Particularly the letters from his brother-in-law, sister, and friends and neighbours here in Canada which all identify the claimant’s sexual orientation.[6] I acknowledge that the claimant’s uncle’s letter does not explicitly state that the claimant is gay. I find that this is reasonable given the fact that the claimant hid his sexual orientation in Morocco. I have no reason to doubt the veracity of these support letters.
[25] The claimant submitted two letters from a deputy Imam at his mosque.[7] In one of these letters the deputy Imam describes that the claimant told him that he was “almost gay” and says that he was convinced at that time that he was gay. I place no weight on these letters as I find on a balance of probabilities that they are fraudulent. When questioned about them the claimant first said that he got them personally from the deputy Imam. When it was pointed out to him that the letters were dated after he was in Canada, he said that he must have been mistaken and that his mom obtained these letters. I find it unreasonable that the claimant would have forgotten whether he was the one that personally obtained these letters from the deputy Imam. When I asked why there were two, he said that the deputy Imam gave them two letters to choose from and that his sister accidentally sent both in as part of his evidence. The claimant was not able to explain why the deputy Imam provided two letters. I find that this puts these letters further into question as the claimant had testified that he did not have a strong relationship with the deputy Imam.
[26] For the foregoing reasons, I find that the letters are fraudulent and place no weight in them. However, while the claimant may have submitted these fraudulent letters to bolster his claim, I do not find that this alone is sufficient to rebut the presumption of credibility with regards to the claimant’s sexual orientation. While these letters briefly mention the claimant’s presumed sexual orientation, they mainly focus on the claimant’s allegation regarding not being a practicing Muslim. I therefore find that the fraudulent nature of these letters speaks more to the claimant’s credibility regarding his religion rather than his sexual orientation. There are several other supporting letters provided by the claimant from family, friends and neighbours in Canada that explicitly identify his sexual orientation which I find to be genuine. These letters are varied, each has a unique voice and uses different language, they are all signed and provide the contact information of the letter writer. Pursuant to Guideline 9 part 3, I find it reasonable that the claimant would be able to obtain more reliable information concerning his sexual orientation from individuals in Canada, given that he was concealing his sexual orientation in Morocco. Further the claimant’s testimony regarding his sexual orientation was authentic and consistent throughout the hearing. As such, I find the claimant to be credible regarding his sexual orientation.
Subjective Fear
[27] The claimant went to visit his sister in Canada in 2016. It was at that time when he first realized that he could live freely as a gay man in Canada. However, he was still in school, so he returned to Morocco, but thought about going back to Canada once he finished school. The claimant fled Morocco at the time that he did because things came to a head with his father. The claimant had been getting in regular fights at school and the principle contacted his father and told him about the rumours that the claimant was gay. It was at this time that the claimant’s father became convinced that the claimant was gay, and the claimant revealed his sexual orientation to his father. This resulted in a serious argument during which his father tried to beat him. He asked his sister for help, and she bought tickets for him and his mother (who was supportive of him) to come to Canada. The claimant did not try to leave earlier because he had not revealed his sexual orientation prior to this and was still trying to hide it to fit in with his community. I find the claimant’s explanation regarding why he did not leave Morocco sooner to be reasonable and that it does not negatively impact his subjective fear. The claimant was young and trying to hide his sexual orientation.
[28] When he came to Canada the claimant was not aware of the option to ask for asylum until he consulted with counsel sometime in 2019. The claimant’s visitor status expired on XXXX XXXX, 2020. The claimant applied for refugee protection on XXXX XXXX, 2021. The claimant testified that he had the intention of staying in Canada permanently and that was why he was trying to extend his visitor visa in order to prepare for asylum. While the claimant did not specifically mention it in his answer, I take notice of the fact that the period between when the claimant’s visitor status expired and when he applied for refugee protection as in the middle of the pandemic when a number of services were unavailable. Given this, I find the claimant’s delay in seeking protection to be reasonable.
[29] Ultimately, while I acknowledge issues with the claimant’s evidence outlined above none of these issues rebut the presumption of credibility with regards to the claimant’s sexual orientation and are insufficient to reject his assertions about his sexuality. Given my finding concerning the claimant’s credible testimony and credible supporting letters from friends and family in Canada, I find on a balance of probabilities that the claimant is a gay man.
Well-Founded Fear of Persecution and Risk of Harm
[30] To be considered a Convention Refugee, the claimant must demonstrate that he has a well-founded fear of persecution which includes both subjective fear and an objective basis for that fear. Based on the claimant’s BOC, testimony, documentary evidence and the National Documentation Packages (“NDP”) for Morocco[8], I find that the claimant does have a well-founded fear of persecution in Morocco.
[31] Morocco criminalizes same-sex sexual activity with a maximum sentence of three years in prison for violations. In 2019, 122 individuals were prosecuted under this law. Societally there are reports of overt discrimination based on sexual orientation or gender identity in employment, housing and health care.[9] The Danish Immigration services cites that “parts of the population in Morocco are very hostile towards LGBTQ persons including public demonstrations, violent intrusions into private homes and public denunciations.” Gay men, especially those who are perceived as effeminate are most likely to be victims of physical assaults. LGBTQ people report being cautious about how they walk, talk and behave in public places in order to avoid homophobic violence.[10] This is corroborative of the claimant’s experiences as a gay man hiding his sexuality in Morocco.
[32] Guideline 9 states, an individual’s profile may be sufficient to demonstrate a well-founded fear of persecution in their country of reference given conditions that may include discriminatory laws, or at atmosphere of intolerance and repression. It also states that being compelled to conceal one’s sexual orientation constitutes a serious interference with fundamental human rights that may amount to persecution and a claimant cannot be expected to conceal their sexuality to avoid persecution.
[33] I find on a balance of probabilities that LGBTQ people face a significant risk of violence, arrest and conviction in Morocco due to their sexuality and that these conditions would compel the claimant to conceal his sexual orientation in an attempt to protect his physical safety. For these reasons, I find the claimant faces a serious possibility of persecution for reason of his sexual orientation in Morocco.
State Protection and Internal Flight Alternative
[34] There is a presumption that countries can protect their citizens. The claimant bears the burden of rebutting that presumption.
[35] In this case, the state is one of the agents of persecution and they have effective control over all their territory. The Danish Immigration service has identified that it is almost impossible for an LGBTQ person fearing for his or her safety to obtain efficient protection by police in Morocco and that they would face arrest or stereotypical questions and prejudice.[11] I therefore find that the presumption of state protection is rebutted and there is no viable internal flight alternative for the claimant.
CONCLUSION
[36] For the forgoing reasons, I find that the claimant is a Convention refugee pursuant to s. 96 of the Act. The claim is therefore accepted.
(signed) Katarina Bogojevic
May 11, 2022
[1] Immigration and Refugee Protection Act,S.C. 2001, c. 27.
[2] Exhibit 2.
[3] Exhibit 1.
[4] Exhibit 4.
[5] Exhibit 7.
[6] Exhibits 7 to 9.
[7] Exhibit 7.
[8] Exhibit 3.
[9] National Documentation Package, Morocco, 31 May 2021, tab 2.1: Morocco. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021.
[10] National Documentation Package, Morocco, 31 May 2021, tab 6.2: Morocco. State-Sponsored Homophobia 2019. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Lucas Ramón Mendos. March 2019; and National Documentation Package, Morocco, 31 May 2021, tab 6.3: Morocco: Situation of LGBT Persons, Version 2.0. Denmark. Danish Immigration Service. September 2019.
[11]National Documentation Package, Morocco, 31 May 2021, tab 6.3: Morocco: Situation of LGBT Persons, Version 2.0. Denmark. Danish Immigration Service. September 2019.