Citation: 2022 RLLR 61
Tribunal: Refugee Protection Division
Date of Decision: December 9, 2022
Panel: M. Bourassa
Counsel for the Claimant(s): Pierre-Luc Bouchard
Country: Sierra Leone
RPD Number: TC2-22296
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
REASONS FOR DECISION
[1] The claimant, XXXX claims to be a citizen of Sierra Leone and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act (‘IRPA”).
[2] In coming to its decision, the panel considered post-hearing written submissions received from counsel on December 9, 2022.
[3] The panel has considered and applied the Chairperson’s Guideline 9: Proceedings Involving Sexual Orientation, Gender Identity Expression, and Sex Characteristics.
DETERMINATION
[4] Having considered the totality of the evidence, the panel finds the claimant to be a Convention refugee under s. 96 of IRPA as he has established a serious possibility of persecution should he retum to Sierra Leone based on his membership in a particular social group based on his sexual orientation as a gay man.
ALLEGATIONS
[5] The claimant’ s allegations are set out in his Basis of Claim (BOC) form[1] and narrative, as amended.[2] In short, he alleges a fear of persecution in Sierra Leone due to his sexual orientation as a gay man.
[6] The claimant alleges a fear of persecution from his father who assaulted him with a knife, authorities in Sierra Leone and the community. The claimant alleges that there is no available protection in Sierra Leone. Same sex relations are criminalized in Sierra Leone and are disapproved of in society. He alleges that he could not live safely anywhere in Sierra Leone.
ANALYSIS
Identity
[7] The panel finds that the claimant’s personal identity and as a citizen of Sierra Leone have been established on a balance of probabilities through the claimant’s testimony and the supporting documents on file that include his passport, a certified true copy of which was provided to the Board by CBSA/IRCC.[3]
Nexus
[8] The panel finds that there is a link: between what the claimant fears and one of the five Convention grounds, membership in a particular social group, based on his sexual orientation. Therefore, his claim has been assessed under s. 96 of IRPA.
Credibility
[9] Overall, the panel finds the claimant is a credible witness.
[10] The panel finds, on a balance of probabilities, that the claimant has established his sexual orientation as a gay man through a combination of his testimony and supporting documentation.
[11] The claimant testified credibly that he did odd day jobs for an individual that he referred to as the “white man” who started to pay him for sexual favours. Intime, he asked the claimant to bring a friend. He testified that he brought a friend, XXXX and that they fell into a relationship as same-sex partners after the white man left in 2015. He described himself as the woman in their relationship. He testified that he was aware that consensual same-sex sexual activity is criminalized in Sierra Leone and of the prevailing cultural norms and attitudes.
[12] The claimant testified credibly about his same-sex relationship with XXXX that extended over several years, including what he liked about him and what they liked to do together. He added that no one was suspicious of their relationship. They were viewed as good friends. In support of his claim, the claimant submitted several photos[4] of himself and his partner explaining when each was taken. The panel finds the photos to be credible and trustworthy and gives them weight.
[13] The claimant testified credibly that he and his partner went clubbing on XXXX 2019, to celebrate XXXX. They stayed out late and returned to the claimant’s house. Uncharacteristically, they slept late. He testified that a step-sister came into his room which also acted as a storeroom, in order to get a bag of rice, and caught them having sex. She left immediately. He then locked the door after she left, adding that they may have forgotten to lock the door. His step-mother then knocked on the door and asked to come in and get the rice and then left. He overheard her asking the step-sister what she had seen and was told that she had seen them having sex.
[14] The claimant testified credibly that he and his partner went to sit outside waiting for his step-mother to finish cooking the rice. They were then approached by four men who identified themselves as Community Service Volunteers who told him that his step-mother had reported that he was gay and caught having sex. They also witnessed the claimant and his partner sharing a kiss. Two of the men proceeded to hit the claimant with batons and beat him. He was dragged to the front of the house where his father stabbed him with a knife in XXXX, vowing to kill him. The claimant managed to escape and made his way to his sister XXXX’s house. His partner who had tried to intervene, was beaten and apparently died.
[15] The claimant testified that he disclosed what had happened to his brother-in-law and to his sister XXXX who arrived home later. His brother-in-law told him that he would be killed if he returned home. His sister accompanied him to a clinic for medical attention. He left for Ghana
XXXX days later, and then travelled to Ecuador and eventually to the United States. The claimant testified that he has remained in regular contact with his sister XXXX, who informs him that his father remains angry and upset and has threatened to kill him.
[16] The claimant testified credibly that he was detained in California for attempting to enter the United States (US) illegally. He was able to leave detention after XXXX months with the assistance of an organization that advocates for LGBTQ persons in US Immigration detention. In support of his claim, the claimant provided a letter of support[5] from XXXX of the XXXX who confirm that they paid the claimant’s XXXX immigration bond in coordination with XXXX and XXXX who provided temporary housing to the claimant and organized his transportation from detention to his sponsor. Mr. XXXX also states that the claimant has remained in touch with him and individuals that he worked with at XXXX and shared the danger he fears in Sierra Leone because of his sexual orientation. It is also noted that the claimant facilitated the retum of the-
bond to his organization. The panel finds the letter to be credible and trustworthy and gives it weight.
[17] The claimant testified credibly that since being in Canada, he has participated in some support programs and social activities with AGIR, a non-profit organization for migrants who self-identify as sexual and/or gender minorities. In support of his claim, he submitted a letter6 from AGIR confirming that that the claimant approached the organization and self-identified as a gay man and shared the danger he fears because ofhis sexual orientation from Sierra Leone, and has participated in 4 AGIR support groups and social events for LGBTQ+ migrants. The panel finds the letter to be credible and trustworthy and gives it weight.
[18] The claimant testified that he is currently involved in a same-sex relationship with a man called hat he was acquainted with in Sierra Leone and with whom he reconnected with
5 Exhibit 5, item P-8.
6 Exhibit 6.
while living in the US in different cities. He was able to provide information about his partner who remains in the US and details of their relationship. However, his partner did not appear at the hearing as a witness. When asked why his partner did not appear as a witness at the hearing, he responded that he did not know he could. His partner had provided a letter7 of support and proof of his identity. The panel noted that the letter is not signed and inquired whether the second page was missing. Counsel confirmed that the one page was all that he had received. The panel gives little way to the unsigned letter and notes that it is unfortunate that his partner did not attend the hearing to testify in support of his same-sex partner’ s claim, as one might reasonably have expected him to be available.
[19] The claimant also submitted a letter of support from hom he described as the husband of his stepsister, l his father’s daughter from another relationship. The claimant stated that his brother-in-law witnessed the incident at his father’s house. The panel noted some inconsistencies between his written and oral testimony and the letter. For instance, the claimant testified that he was stabbed in 1
and managed to escape, running uphill to eventually make his way to his sister house and later fled to Ghana. The brother-in-law states in his letter that the claimant was stabbed in the
and dragged unconsciously to a nearby drainage. He also refers to the claimant fleeing to Guinea, Conakry and having contributed to his travel. The claimant explained that his brother-in law may not have written it well and made a mistake about Guinea. He added that he had pretended not to get up in order to flee. The panel does not find his explanations to be reasonable. One might reasonably have expected someone who had allegedly witnessed the attack to recall basic facts. Furthermore, it is not clear from the letter that he witnessed the incident at the claimant’s father’s house given that he appears to reside in a different community. For these reasons, the panel does not find the letter to be credible and trustworthy and gives it no weight. However, there is other credible and trustworthy evidence before the panel.
[20] The panel finds, based on a balance of probabilities, the claimant has established his sexual orientation as a gay man and whose sexual orientation is known in Sierra Leone. The panel finds that the claimant has established a subjective fear of returning to Malawi.
7 Exhibit 5, item P-9.
Objective Basis
[21] The Board finds that the claimant’ s allegations are supported by the documentary evidence, namely the national documentation package for Sierra Leone8 and that the claimant would face a serious possibility of persecution should he return to Sierra Leone based on his membership in a particular social group, based on his sexual orientation as a gay man.
[22] The documentary evidence9 indicates that the law criminalizes same-sex sexual activity between men under the Offences Against the Person Act, carrying a maximum penalty of life imprisonment. The law is not enforced.10
[23] The constitution does not offer protection from discrimination based on sexual orientation.11 No hate crime law covers bias-motivated violence against LGBTI+ persons.12 Although LGBTQI+ advocacy groups noted that police discrimination against LGBTQI+ individuals had not disappeared, they reported that police were increasingly treating LGBTQI+ persons with understanding.13
[24] The panel notes that Guideline 9 at Section 8.5.6.1 indicates that even where laws are not enforced in a country against same-sex relationships, they may create a climate of impunity for perpetrators of violence and contribute to discrimination against SOGIESC individuals as they may reinforce negative societal attitudes against this population as well. According to one source, even though the anti-buggery law is not actively enforced, it contributes significantly to the stigma and discrimination of people on the basis of their sexual orientation. 14
[25] There is significant societal discrimination based on sexual orientation in Sierra Leone in nearly every facet of life.
8 Exhibit 8, National Documentary Packager for Sierra Leone, 31 March 2020 version.
9 Exhibit 3, items 2.1 and 2.2.
10 Exhibit 3, item 2.1.
11 Exhibit 3.
12 Exhibit 3.
13 Exhibit 3.
14 Exhibit 3, item 6.1.
[26] LGBTQI+ advocates reported the community faced challenges ranging from violence, stigma, discrimination, blackmailing, and public attack to denial of public services such as healthcare and justice. According to one source,15 in 2019, two men were reported to the police by their family members after being caught having sex in their house. The couple was able to escape and managed to leave the country before they were arrested.
[27] Discrimination occurs in housing, in healthcare, also in employment in Sierra Leone and that there is a failure of the State to investigate or punish public entities and private persons complicit in abuses against LGBTQI+ persons.16
[28] It is difficult for LGBTQI+ individuals to receive health services; many chose not to seek medical testing or treatment due to fear their right to confidentiality would be ignored and their sexual identity would be compromised. According to a study, healthcare professionals have refused treatment or abused LGBT patients after discovering their identities.
[29] Obtaining secure housing was also a problem for LGBTQI+ persons. Families frequently shunned their LGBTQI+ children, leading some to tum to commercial sexto survive. Adults risked having their leases terminated if their LGBTQI+ status became public.
[30] The panel finds that the discrimination that LGBTQI+ persons including gay men face in Sierra Leone rises to the level of persecution. In making this finding, the Board has made reference to the UNHCR Handbook. The UNHCR Handbook indicates the discrimination rises to the level of persecution, where there are a number of discriminatory acts which are substantially prejudicial to the person concemed, that take place in a general atmosphere of insecurity, and which result in feelings of apprehension and insecurity with regard to the future existence of that person.17
15 Exhibit 4, item 6.2.
16 Exhibit 4, item 6.2.
17 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status ofRefugees of the United Nations High Commission for Refugees, at paras. 54-55.
[31] The Federal Court has noted that the Board must take into account the cumulative nature ofvarious acts ofharassment and attacks to determine whether they amount to persecution.18 Based on the objective evidence regarding Sierra Leone, the Board finds that this does amount to persecution in the claimant’s particular circumstances.
[32] Considering all of the evidence including the documentary evidence as well as the credible evidence of the claimant, the panel finds that the claimant would face a serious possibility of persecution in Sierra Leone as a gay man. The country conditions documentation supports the claimant’s allegations.
State Protection
[33] Based on the claimant’s persona! circumstances as well as the country documentation referred to above, the panel finds on a balance of probabilities that the claimant has rebutted the presumption of state protection with clear and convincing evidence. Adequate state protection is not available as same-sex activity is criminalized in Sierra Leone.
Internai Flight Alternative (IFA)
[34] Based on the objective documentary evidence as set out above, the panel finds that there is a serious possibility of persecution throughout Sierra Leone for the claimant as same-sex activity is criminalized throughout Sierra Leone and as such there is no viable IFA.
CONCLUSION
[35] Having considered the totality of the evidence, the panel finds the claimant to be a Convention refugee under s. 96 of IRPA as he has established a serious possibility of persecution should he retum to Sierra Leone based on his membership in a particular social group based on his sexual orientation as a gay man.
18 Mete v. Canada (MC/), 2005 FC 840 (CanLII), at paras. 5, 6; Canada (MC/) v. Munderere, 2008 FCA 84 (CanLII),
at para. 41.
[36] The panel finds the claimant to be a Convention refugee and accepts his claim.
(signed) Christine Tam
December 20, 2022
[1] Exhibit 2.0.
[2] Exhibit 2(a).
[3] Exhibit 1.
[4] Exhibit 5, item P-7.
[5] Exhibit 5, item P-8.