Citation: 2022 RLLR 5
Tribunal: Refugee Protection Division
Date of Decision: January 6, 2022
Panel: Hannah Gray
Counsel for the Claimant(s): Melissa Singer
Country: Zimbabwe
RPD Number: VC1-06581
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: So, I have considered your testimony and the other evidence in the case, and I will now give you my decision orally. Okay? You will also receive a written version of this decision in the mail, and that will have reference to documentary evidence and case law. So, I will begin by telling you that my decision is a positive one and I have accepted your claims. So, congratulations.
[2] CLAIMANT: Thank you so much.
[3] MEMBER: You’re welcome. I will now read you the reasons for my decision. They’re a bit lengthy, so just bear with me. This is the decision of the Refugee Protection Division, the RPD, in the claim of XXXX XXXX XXXX, the claimant, of Zimbabwe, who is claiming refugee protection pursuant to s. 96 and subsection 97(1) of the Immigration and Refugee Protection Act, the IRPA. I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution. I have also considered and applied the Immigration and Refugee Board’s Chairperson’s Guideline 9 on Sexual Orientation and Gender Identity and Expression and Sex Characteristics, the SOGIESC Guidelines.
DETERMINATION
[4] I find that the claimant is a Convention refugee pursuant to s. 96 of the IRPA based on her well-founded fear of persecution in Zimbabwe.
[5] The specifics of the claim are stated in the claimant’s Basis of Claim form and narrative in evidence. The claimant is a 38-year-old woman who identifies as bisexual. She faced threats and physical harm in Zimbabwe from her family members and general society due to her sexual orientation and her relationship with a woman. She was physically harmed on many occasions in public and in her home, and her home was burned down while she was inside. She soon — after this incident, she soon decided to move to South Africa, which she did in 2009 and remained there until 2018, where she lived on a work permit, which she renewed annually or biannually. In South Africa, she was also in a same-sex relationship with a woman named XXXX (ph) for four years, who she met at XXXX XXXX in Cape Town. Their relationship ended when the claimant moved to the USA in 2018 for employment on a cruise ship. The claimant relocated to the USA on a temporary work permit in XXXX 2018 and remained there until the end of 2018. While working on the cruise ship, she met her current partner, XXXX XXXX (ph), who is from Belize. They have been in an exclusive relationship since this time and they communicate daily. The claimant moved to Canada in early XXXX 2019 and made her refugee claim at that time. The claimant fears returning to Zimbabwe and being harmed or killed due to her sexual orientation.
IDENTITY
[6] I’m satisfied with the identity of the claimant as a citizen of Zimbabwe, which is established by her testimony and the copy of her passport with a USA visa, type C (inaudible) in evidence.
Credibility
[7] When a claimant swears to the truth of allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. I find no reason to doubt the truthfulness of the claimant. She testified in straightforward, forthright, detailed, and candid manner. There were no material inconsistencies, omissions, or contradictions between the claimant’s testimony and the other evidence in this case that were not reasonably explained. She did not exaggerate or tailor her evidence. In summary, her testimony was consistent with the other evidence on central aspects of her claim.
[8] I find the claimant also provided ample details to expand upon her allegations and she provided evidence in Exhibit 4 which included a letter from the XXXX, which is an LGBTQ+ support organization in Canada, a certificate of attendance at the XXXX XXXX XXXX XXXX XXXX XXXX from XXXX 2019 to XXXX 2020, a letter from her current partner, XXXX XXXX and as well as her identification document, and a letter of support from XXXX XXXX (ph) from XXXX 2021, and a letter of support from her partner in South Africa — her former partner in South Africa, XXXX XXXX (ph) as well as for identification document. During the hearing, the claimant was asked if she could provide any photographs or other evidence to substantially her relationship to her current partner. The claimant testified that she had photographs and spontaneously turned on her phone and pulled up multiple photographs of her and her partner, Janalie Cruz. She further testified in a candid manner that her partner was a female who considered herself to be male. However, she was not able to afford the gender-affirming surgery yet. She further testified that her and her partner speak daily over video chat and they have future plans to be together in person and even get married as they have been in a relationship since 2018.
[9] The claimant lived in South Africa from 2019 — sorry, 2009 to 2018, and then relocated to the USA on a temporary work visa for employment on a cruise ship. While in the USA, the claimant met her current partner. However, she feared making a refugee claim in the USA due to the Trump administration’s stringent policies on refugees. She therefore relocated to Canada in 2019 to make a refugee claim. Considering the particular circumstances of claimant, I find her explanation to be reasonable and I find that her failure to claim asylum in the USA is not indicative of her lack of subjective fear. As such, I do not draw a negative inference on her credibility.
[10] Due to the pandemic, the claimant has participated intermittently in LGBTQ organizations and events in Canada. There’s a support letter from the XXXX in Exhibit 4 which is a settlement organization, providing programs and services to the LGBTQ community, who confirm the claimant’s participation, and she participated in a number of XXXX hosted events.
[11] Given the claimant’s careful testimony and supporting documents, I find the claimant has established on a balance of probabilities the facts alleged in her claim, including that she has been threatened and harmed by her family in Zimbabwe as well as general society, as well as the allegations that she’s a bisexual woman who is currently in a relationship with someone named XXXX XXXX, and therefore the subjective fear she has of returning to Zimbabwe now. In sum, I find the claimant to be a credible witness and therefore believe what she has alleged in support of her claim.
Nexus
[12] To qualify for refugee status under the Refugee Convention, an individual must demonstrate that they have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion. The allegations establish a nexus to the Convention ground for the claimant based on her membership in a particular social group as a bisexual woman facing violence due to her sexual orientation. I will therefore assess this claim under s. 96. I find the claimant has a well-founded fear of persecution based on her sexual orientation.
[13] The claimant testified that she experienced frequent physical violence and threats in Zimbabwe due to her same-sex relationships. The country condition documents indicate that LGBTQI persons face societal and official harassment and discrimination, arbitrary detention, and sporadic violence in Zimbabwe. According to the National Documentation Package for Zimbabwe at Item 6.1, the atmosphere — it states that the atmosphere of severe sociopolitical hostility directed at sexual and gender minorities over the past year was described in the UK Home Office’s 2018 report. In fact, former President Mugabe’s anti-gay rhetoric has been backed up by many politicians, including a member of the Zimbabwe Human Rights Commission. This report further states that this is frequently reflected in the media where journalists report that it is risky if not deadly to be gay and lesbian in Zimbabwe, a country where such relations are beyond taboo. According to a source in the National Documentation Package at item 6.2, a report on laws applying to LGBT individuals in selected Southern African countries, OutRight Action International, it states that “An international LGBTIQ organization that seeks to advance human rights and opportunities for LGBTIQ people around the world,” and similarly states that in Zimbabwe, although the criminal law and Codification and Reform Act does not explicitly extend to homosexual women, in practice, lesbians are subjected to the same victimization, censure, and police harassment as gay men.
[14] Additionally, one of the UN Human Rights Council stakeholder submissions for the forthcoming 2016 universal periodic review stated that — GALZ stated that homophobia permeates Zimbabwean society unchecked and manifests itself in different forms, ranging from verbal and physical assault (inaudible) discrimination of lesbian, gay, bisexual, transgender, and intersex people on the basis of their sexual orientation or gender identity. NDP Item 6.3 states that refusal by duty-bearers and policymakers to address this issue has resulted in the public intolerance of lesbian, gay, bisexual, transgender, and intersex persons becoming deeply ingrained in the community and reinforces the general stigmatization of sexual minorities in society. With respect to treatment by state actors, the DFAT report from 2016 stated that the authorities more commonly harassed LGBTI persons using loitering, indecency, and public order statutes, although violations are underreported because of the stigma attached to the LGBTI community. In 2014, Gays and Lesbians of Zimbabwe, the GALZ, reported that — 41 cases of arbitrary arrest, violence, harassment, unfair dismissal, and forceful displacement involving LGBTI persons.
[15] The claimant has identified as a bisexual woman who has already experienced physical violence in Zimbabwe on the basis of her sexual orientation. The objective evidence indicates that she faces a well-founded fear of persecution. Therefore, I find the claimant has demonstrated a well-founded fear of persecution on both a subjective and objective basis. I also find the claimant would face a serious possibility of persecution in Zimbabwe based on her profile as a bisexual woman.
State Protection
[16] In all refugee claims, a state is presumed to be capable of protecting its citizens unless there is clear and convincing evidence to the contrary. In this case, I find that this presumption has been rebutted. To rebut this presumption, a claimant must establish on a balance of probabilities through clear and convincing evidence that their state’s protection is inadequate, and the onus is on the claimant to do this. According to NDP Item 6.3, there is a high level of official discrimination against LGBTI persons in Zimbabwe. Authorities continue to violate rights of LGBT people. A Zimbabwe Human Rights Commission report published in July showed continued hostility and systematic discrimination by police and politicians against LGBT people, driving many to live underground. At NDP Item 6.2, LGBTI individuals face arbitrary detention and torture at the hands of law enforcement officials. Police reportedly detained and held persons suspected of being gay for up to 40 hours before releasing them. LGBTI activist groups also reported police using extortion, threats, frequent beatings, mocking, and forced to pay bribes in order to escape custody. Where agents of the state are persecutors, a claimant’s effort to seek state protection need not exhaust all avenues and recourse. In light of the country condition evidence regarding the availability of state protection to those who are similarly situated, I find that the claimant’s efforts in this regard were reasonable and that on a balance of probabilities the state will not afford her adequate protection, and I find she has rebutted the presumption of state protection.
Internal Flight Alternative, or IFA
[17] The test for a viable IFA has two prongs, and I must be satisfied of both on a balance of probabilities in order for there to be a viable IFA. First, I must be satisfied that the claimant would not face a serious possibility of persecution and that she would not be personally subjected to a risk to life of cruel and unusual treatment or punishment or a danger of torture in the IFA. Second, I must be satisfied that it would not be unreasonable in all the circumstances, including those particular to the claimant, for her to seek refuge there. Once an IFA has been proposed, the onus is on the claimant to show that the IFA is unreasonable. As the Zimbabwean state is involved with the harm and is therefore the agent of persecution and is in effective control of all of its territory, I find there is no viable internal flight alternative for the claimant within Zimbabwe as she would face a serious possibility of persecution throughout the country.
[18] For these reasons, I find that the claimant is a Convention refugee under s. 96 of the Act, and I accept her claim. Thank you.
[19] CLAIMANT: Thank you.
[20] COUNSEL: Thank you very much.
[21] MEMBER: You’re welcome. Thank you for sharing your experiences with me today, and congratulations.
[22] CLAIMANT: Thank you.
[23] MEMBER: Have a nice afternoon, everyone. That is it for today.
——— REASONS CONCLUDED ———