Citation: 2022 RLLR 60
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2022
Panel: Christine Tam
Counsel for the Claimant(s): Robin Edoh
Country: Jamaica
RPD Number: TC2-09401
Associated RPD Number(s): TC2-09403, TC2-09406, TC2-09407, TC2-09408
ATIP Number: A-2022-01960
ATIP Pages: N/A
REASONS FOR DECISION
[1] This is the decision in the claim for refugee protection of XXXX (principal claimant or PC), XXXX (associate claimant 1 or AC1), XXXX and XXXX (associate claimant 2 or AC2) (collectively, the claimants). The claimants claim to be citizens of Jamaica and seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)[i].
[2] The claims were heard jointly pursuant to Rule 55(1) of the Refugee Protection Division Rules. The Refugee Protection Division appointed AC1 to be the Designated Representative for his two minor children XXXX and XXXX, the minor associate claimants in this claim.
ALLEGATIONS
[3] The allegations of the claim are found in the Basis of Claim form (BOC)[ii]. The adult claimants each filed their own BOC narratives, on which the minor associate claimants rely. Only the adult claimants testified at the hearing. In summary, AC1 alleges a fear of persecution at the hands of the Jamaican society at large because of his sexual orientation as a bisexual man. PC, AC2 and the minor associate claimants, being the wife and children of AC1, allege a fear of persecution at the hands of the Jamaican society at large because of their association with AC1. If returned to Jamaica, they fear that they would face harassment or would be beaten or killed.
DETERMINATION
[4] The panel finds that AC1 is not excluded under Article 1F(a) of the Refugee Convention. The panel further finds that the claimants have established a serious possibility of persecution if returned to Jamaica and therefore they are Convention refugees pursuant to section 96 of the IRPA. In rendering this decision, the panel has considered and applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC).
NOT EXCLUDED UNDER ARTICLE 1F(a)
[5] Pursuant to Rule 26 of the Refugee Protection Division Rules, the panel notified the Minister in writing of possible exclusion under Article 1F(a) of the Refugee Convention. Upon review of the file, the Minister indicated that it did not intend to intervene at the hearing[iii].
[6] For the following reasons, the panel finds that the principal claimant is not excluded under Article 1F(a) of the Refugee Convention. His testimony in this regard was straightforward and unembellished. The panel finds him a credible witness.
[7] AC1 was a XXXX with the XXXX 2001 to XXXX 2009. According to a table entitled “Details of XXXX”[iv], AC1 declared that this duties included XXX. He testified that, during his service, he was a XXXX and at certain periods, XXXX attached to the XXXX. His duties included XXXX and XXXX. When curfews were enforced, the police would be brought into joint operations with the Jamaica Defence Force to check citizens’ identification cards and maintain law and order. He further testified that he had neither committed a crime against peace, a war crime or a crime against humanity. There is insufficient evidence to establish that the actions of AC1, as a XXXX (including when he was engaged in operations with the XXXX),
led to any of the proscribed acts. Further, AC1 did not hold a high rank within the XXXX and his duties and activities do not demonstrate a link with any of the proscribed acts. Therefore, in consideration of AC1 ‘s credible testimony, the panel finds that there is insufficient evidence to establish that there are serious reasons for considering that he had made a knowing, significant and voluntary contribution or was complicit to a crime against humanity. As such, the panel finds that AC1 is not excluded under Article 1F(a) of the Refugee Convention.
ANALYSIS
Identity
[8] The panel finds, on a balance of probabilities, that the claimants’ personal and national identities have been established by their Jamaican passports, Elector Registration Identification Cards, birth certificates[v] and testimonies.
Nexus
[9] The panel finds that AC1 has established a nexus to section 96 of the IRPA by reason of his membership in a particular social group based on his sexual orientation as a bisexual man. The panel finds that PC, AC2 and the minor associate claimants have also established a nexus to section 96 of the IRPA by reason of their membership in a particular social group because of their familial relationship with AC1 (i.e. as the immediate family members of a bisexual man in Jamaica who have also been harassed and threatened).
Credibility
[10] The panel finds the adult claimants credible. Their testimonies were spontaneous, responsive, consistent with each other and in keeping with their BOC narratives and supporting documents. For the following reasons, the panel finds that AC1 has credibly established his sexual orientation as a bisexual man.
[11] AC1 provided detailed and specific testimony of his experiences in Jamaica as a bisexual man, including when and how he discovered his sexual orientation; how he feels when he is around the same sex as opposed to the opposite sex; how he had tried to keep his sexual orientation from his family and the community for fear of reprisal; and how he has intimacy issues with the opposite sex, including his former girlfriend and PC. His provided a realistically detailed account of the mistreatment and harassment he received from those who had suspicions about his sexual orientation, including staring and finger pointing, rumours, verbal abuse, segregation and death threats. He testified that he ended his service with the XXXX because fellow officers taunted him by saying that he was in breach of the buggery law. PC and AC2 also provided detailed and specific testimony about the difficulties of having a family member who is bisexual and how they and the minor associate claimants were stigmatized, bullied and threatened by the community because of their association with AC1. In particular, AC2 told the panel that she and the minor associate claimants have had to miss school due to the bullying and threats. The adult claimants were able to provide the kind and level of details one would expect from someone telling their own story. In support of their testimony, the claimants provided letters of support from family members and relatives and AC1 ‘s registration with the XXXX in Canada[vi]. The panel finds no valid reason to doubt the authenticity of these documents and affords them full weight. The letter of support from AC1’s mother is particularly compelling, considering how difficult it must have been for her to acknowledge and confirm her son’s sexual orientation. On a balance of probabilities, the panel finds that the persuasive testimonies of the adult claimants, coupled with their credible supporting documents, established that AC1 is a bisexual man and that the claimants were harassed and mistreated by the Jamaican society due to his sexual orientation.
[12] AC1 testified that he did not have any intimate same-sex relationships in Jamaica. He did, however, have a same-sex highschool friend, PS, whom he finds sexually attractive and wishes to be intimate with. AC1 explained that, given that the Jamaican society was homophobic, he had never engaged in any same-sex relationships because he feared for his life. In light of the objective evidence that members of the LGBTQ+ community in Jamaica face arrest, detention and prosecution for their sexuality under the law[vii], the panel finds this explanation reasonable. When asked why he did not have any letter of support from or photos or text messages with PS, AC1 explained that although he has PS’ telephone number, they do not speak often and PS does not know that he is currently in Canada. Given the homophobic climate of Jamaica and that AC1 had been concealing his sexual orientation for the most part of his life, the panel finds that it is not unreasonable for him not to have any corroborative evidence about his attractions towards PS and therefore no negative credibility inference is drawn against AC1 in this regard. On a balance of probabilities, the panel finds that AC1 has established that he is attracted to his same-sex friend, PS, which further supports his credible testimony that he is a bisexual man.
[13] AC1 also testified that he did not have any same-sex relationships in Canada. When asked why this is the case, AC1 explained that he is working on trying to suppress his same-sex urges so that he is able to build a connection with PC, given that she loves him and has been very patient with him throughout the years. The panel accepts this explanation, noting from Guideline 9 that a panel should not assume that (a) SOGIESC individuals would not have had heterosexual sexual experiences or relations or would not voluntarily enter a heterosexual marriage or have children; or (b) SOGIESC individuals would necessarily act upon their attractions by engaging in same-sex activity. The panel therefore finds the fact that AC1 chooses to maintain a relationship with PC instead of having a same-sex relationship does not detract from the credibility of his sexual orientation as a bisexual man. The panel accepts that departures from one’s true sexual orientation are not necessarily indicative of a lack of credibility and therefore no negative credibility inference is drawn against AC1 in this regard.
[14] Having considered the adult claimants’ testimonies and their supporting documents, the panel finds, on a balance of probabilities, that AC1 has credibly established his sexual orientation as a bisexual man. Correspondingly, the panel finds that PC, AC2 and the minor associate claimants are the immediate family members of a bisexual man and are at risk of persecution because family members of LGBTQ+ persons are targeted in Jamaica.
[15] The panel notes that PC and AC1 had made multiple trips to the US and returned to Jamaica thereafter. PC explained that his trips were predominantly work-related and AC1 explained that she had made several trips to visit and help her friend who had just given birth to a newborn. Both testified that they did not know about the asylum process in the US and had returned to Jamaica because they still had their family and children there. The panel accepts these explanations because both PC and AC1 were raised in a society in which same-sex relationships are illegal and considered a taboo. This is not something that they would openly discuss and make inquiries about. Under such circumstances, it is not for PC and AC1 not to have claimed asylum in the US on the ground of AC1’s sexual orientation. It is also not unreasonable for a parent to return to their children, despite the dangers that exist in their country of reference.
[16] The claimants delayed leaving Jamaica and left at different time periods between 2020 and 2021. While PC and AC1 obtained their Canadian visas in XXXX 2019, AC2 and the minor associate claimants did not obtain theirs until XXXX 2019. It is understandable that a parent would delay leaving their country of reference until their children also secured valid Canadian visas. PC (who was pregnant at the time) and her youngest child (XXXX) left in XXXX 2020, followed by AC1 in XXXX 2020 and AC2 and XXXX in 2021. The COVID pandemic also contributed to their delay. In the light of the above circumstances and the uncertainties caused by the COVID pandemic, the panel does not draw any negative inference from the claimants’ delay in leaving.
[17] The claimants also delayed making a refugee claim until the entire family was reunited in Canada. They submitted their claims in February 2022. It is understandable for the claimants not to have made a claim until AC2 and XXXX arrived in XXXX 2021 because they are a family unit. In any event, the panel notes that delay is not determinative of a claim. Given that the panel finds that AC1 has credibly established that he is a bisexual man and that PC, AC2 and the minor associate claimants are the immediate family members of a bisexual man, the delay in claiming does not impact their forward-looking subjective fear of persecution based on their membership in a particular social group, namely bisexual men and family members of a bisexual man in Jamaica respectively.
[18] The claimants’ subjective fear is supported by the objective evidence in the National Documentation Package for Jamaica and the country documentation that they submitted to support their claims.[viii] According to the objective evidence, same-sex acts between men are criminalised in Jamaica. Therefore, members of the LGBTQ+ community face arrest, detention and prosecution for their sexuality under the law[ix]. Physical and sexual violence, including severe beatings and even murder, are part of the lived reality of SOGIESC individuals in Jamaica. The level of brutality leads many to fear what could happen if their sexual orientation or gender identity is disclosed[x]. Sources indicates that homophobia is widespread in Jamaica and is considered to be a “cultural norm”. As a result, members of the LGBTQ+ community “face both general societal discrimination as well as discrimination in access to services, including healthcare, housing, and employment”[xi].
[19] The U.S. Department of State’s most recent report on human rights in Jamaica states that the law does not extend anti-discrimination protection to SOGIESC persons, and the law “legitimizes violence toward LGBTI persons”[xii]. Harassment and violence against SOGIESC individuals are frequently ignored by the police and discrimination is pervasive[xiii]. The objective evidence also indicates that that family members of individuals with diverse SOGIESC are affected by stigma in Jamaica. According to a 2019 LGBT Community Experience and Needs Assessment Survey Report, 11% of respondents experienced blackmail and threats of exposure to family[xiv]. An official at J-FLAG, a prominent LGBT NGO, withdrew his petition against Jamaica’s buggery law due to threats against himself and his family[xv]. The above is in line with PC and AC2′ s testimonies of their experience of being stigmatized, bullied and threatened due to their association with AC1, a bisexual man.
[20] Based on the objective evidence which shows the persecution of SOGIESC individuals and their family members in Jamaica, the panel finds, on a balance of probabilities, that there is an objective basis for the claimants’ subjective fear by reason of AC1 ‘s sexual orientation as a bisexual man and their association with him. The panel therefore finds that the claimants have established a well-founded fear of persecution in Jamaica based on their membership in a social group, namely bisexual men and family members of a bisexual man in Jamaica respectively.
STATE PROTECTION
[21] There is a presumption that states are capable of protection their citizens unless it is in a state of complete breakdown[xvi]. The claimants bear the burden of rebutting that presumption.
[22] Sources report that “harassment of and violence against LGBT+ people remains a major concern and is frequently ignored by the police”[xvii]. Human Rights Watch provides that police officers have continued to respond to reports of homophobic violence with derogatory comments and inaction[xviii]. The above supports AC1 ‘s testimony that he would be taunted by his fellow XXXX which was why he XXXX.
[23] In spite of procedures that the Jamaican government has put in place, it has so far failed to prevent and protect against violence and discrimination, or to punish the perpetrators of crimes
against LGBT persons. In some cases, rogue police officers themselves are perpetrators of violence and extortion against LGBT people. There remains a prevalence of homophobic attitudes within the police force and some police protection remains inadequate. Consequently, there is continuing evidence that LGBT people are not provided with adequate protection and that the authorities fail to punish those responsible for such human rights abuses[xix].
[24] Paragraph 8.6.4 of Guideline 9 also provides that “[t]he existence of laws criminalizing non-conforming sexual orientations, sexual behaviours, gender identities or expressions, or sex characteristics and the enforcement of these laws by the state may be evidence that state protection is inadequate. Even if irregularly enforced, the criminalization of the existence or behaviours of SOGIESC individuals may create a climate of impunity for perpetrators of violence and normalize acts of blackmail, sexual abuse, violence, and extortion by state and non-state actors”.
[25] The panel is persuaded by the objective documentary evidence that it would be unreasonable to expect the claimants to seek protection from the Jamaican police and authorities as, in some cases, they may be the agents of persecution. The claimants have therefore rebutted the presumption of state protection. Accordingly, the panel finds that there is no adequate state protection available to the claimants in their circumstances.
INTERNAL FLIGHT ALTERNATIVE (IFA)
[26] Jamaica is a small island country. It is clear from country documentation that LGBT individuals face persecution throughout Jamaica. If returned to Jamaica, AC1 would be forced to conceal his sexual orientation, which he has been doing for the most part of his life. Paragraph
8.7.1 of Guideline 9 states that it is well-established in law that an IFAis not viable if a SOGIESC individual must conceal their SOGIESC in order to live in that location. As such, AC1 cannot be expected to conceal his sexual orientation as a way to avoid persecution. Further, the homophobic climate and oppressive treatment towards the families of LGBT individuals are supported by objective evidence cited above. It would not be safe for PC, AC2 and the minor claimants to relocate within Jamaica, given their familial association with a bisexual man. The panel therefore finds that there is a serious possibility of persecution for the claimants throughout Jamaica and therefore they do not have a viable IFA.
CONCLUSION
[27] The panel finds that the AC1 has demonstrated that he faces a serious possibility of persecution in Jamaica on the basis of his sexual orientation as a bisexual man. The panel further finds that PC, AC2 and the minor associate claimants have demonstrated that they face a serious possibility of persecution in Jamaica on the basis of their familial association with a bisexual man. The panel finds that they are Convention refugees pursuant to section 96 of the IRPA. Their claims for protection are accepted.
(signed) Christine Tam
December 20, 2022
[i] Immigration and Refugee Protection Act, S. C. 200 I, c. 27.
[ii] Exhibits 2.1, 2.2, 2.3, 2.4 and 2.5.
[iii] Exhibit 10.
[iv] Exhibit 1.
[v] Exhibit 4.
[vi] Exhibits 5, 8, and 9.
[vii] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 6.7.
[viii] Exhibits 5 and 6.
[ix] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 6.7.
[x] Ibid.
[xi] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 6.1.
[xii] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 2.1.
[xiii] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 2.3.
[xiv] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 6.2.
[xv] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 6.6.
[xvi] Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), 2008 FCA 94.
[xvii] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, Tab 2.3.
[xviii] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 6.7.
[xix] Ibid.