2022 RLLR 76

Citation: 2022 RLLR 76
Tribunal: Refugee Protection Division
Date of Decision: March 3, 2022
Panel: Tim Crowhurst
Counsel for the Claimant(s): Ariel M. Hollander
Country: Kenya
RPD Number: TC1-19134
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision in the claim made by XXXX XXXX XXXX, who is seeking refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act, IRPA.

Guidelines Applied

[2]       The Panel considered and applied the Chairperson’s Guideline 9 for Sexual Orientation and Gender Identity Expression.

ALLEGATIONS

[3]       The allegations are set out in the claimant’s Basis of Claim form and were detailed further in his oral testimony. In summary, the claimant fears persecution at the hands of the (inaudible) Kenyan society, police, and state authorities due to his sexual orientation as a gay male. In assessing the claim, the Panel focused on the credibility of the claimant’s allegations and of the risk of persecution or harm he might face upon his return to Kenya because of his sexual orientation.

Identity

[4]       The claimant’s personal and national identity has been established through his testimony and through documentation filed, namely a certified copy of his Kenyan passport.

Nexus

[5]       The Panel finds that there is a nexus between the harm the claimant fears and his sexual orientation. This claim will, therefore, be assessed pursuant to section 96. The test under section 96 is whether there is a serious possibility of persecution should the claimant be returned to Kenya, and the Panel finds that the claimant has satisfied this burden.

Credibility

[6]       Maldonado stands for the assertion that when a claimant affirms to tell the truth, this creates a presumption of truthfulness, unless there is evidence to the contrary. The Panel found the claimant’s testimony to be highly consistent and credible in his evidence. He provided spontaneous detail in support of his allegations, and was straightforward in his testimony, which was provided in English without the assistance of an interpreter. There were no relevant contradictions or omissions that would go to the core of the claim. The Panel finds the claimant to be a credible witness and, therefore, believes what he has alleged in support of his claim.

[7]       During the hearing, the claimant described his longstanding realization of his sexual orientation in a spontaneous way and has provided details of the public discovery of his sexual orientation, the abuse he experienced at the hands of the police and society, and the subsequent decision made to find a safer country where he could experience a normal life given his sexual orientation. He testified candidly about what it was like to live in a homophobic society and the pressures that caused him to be fearful of a return to Kenya. The claimant further testified about the longstanding same-sex relationship he has been involved in with XXXX XXXX (ph) XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, in Kenya. He has provided realistic and credible details as to the ongoing nature of his relationship and his awareness of the difference between LGBT experiences in Canada versus abroad. He was candid in his testimony and the Panel finds that he did not attempt to embellish his testimony to further his claim.

[8]       In addition, the claimant has provided credible evidence about the violent persecution he suffered as a result of his sexual orientation while in Kenya. The Panel is satisfied, on the balance of probabilities, that the claimant is of a minority sexual orientation, namely a gay male and has suffered persecution while in Kenya as a result. Based on the credible testimony and the supporting documentation, I find, on the balance of probabilities, that the claimant is a member of the LGBTQI community in Canada as alleged. On the whole, the evidence was internally consistent and inherently plausible and consistent with the documentary evidence on country conditions in Kenya. Furthermore, the allegations are corroborated by personal documents and the Panel finds no reasons to doubt the evidence put before it. Based on the documents on file and the testimony of the claimant, I find the evidence is credible and that the allegations in this case are as alleged. The Panel, therefore, finds the claimant does have a subjective fear of persecution in Kenya as a gay male.

Objective Evidence

[9]       The Panel notes the documentary evidence found in the National Documentation Package clearly illustrates the ongoing persecution of gay people in Kenya. In particular, Items 2.1 and 6.1 referenced the state’s use of mistreatment against those belonging to the LGBTQI community. The NDP also indicates that the state authorities continue to engage in arrests under section 1.62(a)(c) of the Kenyan Penal Code, which prohibits individuals from engaging in same-sex relations and activities, and this law is effective throughout the country. The Panel, therefore, finds that the claimant’s fear has an objective basis and that it is well-founded.

State Protection

[10]     The Panel finds that state protection would not be available to the claimant if he were to seek in Kenya, where agents of the state, themselves, are sources of persecution, the presumption of state protection may be rebutted without exhausting all avenues of recourse in the country. In this case, the primary agent of persecution is the state. Considering the objective country documentation, as well as the claimant’s personal experiences, the Panel finds that he has rebutted the presumption of state protection and that adequate state protection would not be available to him in Kenya.

Internal Flight Alternative

[11]     Panel has also considered whether a viable internal flight alternative exists for the claimant. Based on the objective evidence in Item 2.1 of the National Documentation Package, the Panel finds, on the balance of probabilities, it would not be reasonable for him to relocate in Kenya as a gay male, as persecution of those belonging to the LBGTQI community is widespread.

CONCLUSION

[12]     Based on the totality of the evidence before the Panel, the Panel concludes that the claimant faces a serious possibility of persecution based on his belonging to a particular social group of gay males in Kenya. And therefore, the claimant is a Convention refugee pursuant to section 96 of IRPA and the Refugee Protection Division accepts his claim.

——— REASONS CONCLUDED ———