2022 RLLR 82

Citation: 2022 RLLR 82
Tribunal: Refugee Protection Division
Date of Decision: January 31, 2022
Panel: Miranda Robinson
Counsel for the Claimant(s): Kes Posgate
Country: Barbados
RPD Number: TC1-12809
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A

DECISION 

[1]       MEMBER: I have considered your testimony and the other evidence in this case, and I am ready to render my decision orally. These are the reasons for the decision in the claim of XXXX XXXX XXXX, who claims to be a citizen of Barbados and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. In rendering these reasons, I have considered and applied the Chairperson’s Guidelines number 9, proceedings before the IRB involving sexual orientation and gender identity and expression.  

 ALLEGATIONS  

[2]       Your allegations are found in your Basis of Claim form and narrative in Exhibit 2 and in the oral testimony heard today. In brief summary, you allege persecution in Barbados for your sexual orientation as a self-identified gay male, and that you face additional risk due to the same-sex marriage that you had in Canada, which became known to the community in Barbados.  

DECISION 

[3]       I find that you are a refugee pursuant to section 96 of the Immigration and Refugee Protection Act, as there exists a serious possibility of persecution should you return to Barbados, on account of your membership in a particular social group, that is as a person that identifies as gay.  

ANALYSIS 

Identity 

[4]       I find that your identity as a national of Barbados is established by the documents provided. I’m relying primarily on the certified copy of your passports in Exhibits 1 and 4, but this is also corroborated by personal documents in Exhibit 5, including your birth certificate.  

Subjective Fear  

[5]       I do note that you first left Barbados in XXXX of 2018 for a brief visit to Canada, where you rekindled your relationship with your ex-partner. You returned to Barbados after this and then came back to Canada in XXXX of 2019. You did not seek Canada’s protection until XXXX of 2021. I note that you explained consistently that after returning to Canada in 2019, at that point you married your same-sex partner in Canada and you have given documents that confirm this in Exhibit 5. You stated that you had initiated a sponsorship application and were waiting for this processing and the next steps when the relationship ended in approximately XXXX of 2020. At this time, your now ex-husband told you that he was withdrawing the application, and at that point, you began to look for ways to seek protection and to remain in Canada. I note that this is also indicated in the WhatsApp correspondence given in Exhibit 5 with your ex-husband as well. This explanation is reasonable in your circumstances, and therefore does not raise significant concerns with respect to your subjective fear or your overall credibility.  

Credibility 

[6]       I did find you to be a highly credible witness and therefore believe what you have alleged in support of your claim. You testified in a candid and straightforward manner, and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. In particular, you spoke naturally about your understanding of your sexual orientation and how that developed, about gender norms in Barbados as well, which your behaviour and manners were not seen to be in line with. You discussed community views and a negative atmosphere for sexual minorities, which you personally experienced, and also spoke of the more general living conditions. You provided significant details about two (2) of your same sex relationships that took place in Barbados and in Canada, including the one (1) of your marriage and the details of that dissolution of that marriage after. You have also provided documents to corroborate the allegations, and after reviewing those, I have no reasons to doubt their authenticity.  

[7]       I do give weight to the following documents in establishing the allegations. Firstly, the marriage certificate confirms the same-sex marriage that took place in Canada. You have also provided the court documents that confirm the charges against your partner, which includes assault as you had described, and the release documents as well. Letters of support from close friends and ex-colleagues in the Barbados. These confirm details of the discrimination and of the violent treatment that you faced in Barbados. It also attests to the author’s knowledge of your same-sex relationships, and also the community knowledge of your sexual orientation and of your marriage in Barbados.  

[8]       You have given a letter from your ex-partner in the Barbados, which also confirms the details of that relationship, and later from a friend in Canada that introduced you to XXXX XXXX after your marriage ended and assisted you in that way. You have also given photographs of yourself and your same-sex partners, including at your marriage ceremony, celebrations and with partners in Barbados. These photos all appear to be natural and comfortable. And excerpts from text message or WhatsApp correspondence over a number of years with your ex-husband. These do not appear contrived, and they also confirm details such as him asking you to leave the residence, and withdrawal of the sponsorship in XXXX of 2020. I therefore find on a balance of probabilities that you are a gay man, that you have been in same-sex relationships in both Barbados and Canada, and that you were married to your now ex-husband in Canada. I also find that your sexual orientation and that this marriage has become known to the broader community in Barbados. I find your subjective fear is established.  

Objective Basis 

[9]       Given that there are no serious credibility issues with respect to your allegations, coupled with the documentary evidence, I do find that you have established a prospective risk and well-founded fear of persecution in Barbados. This risk is corroborated by the National Documentation Package for Barbados in Exhibit 3. The objective evidence in the NDP in Item 2.1 states that the criminalization of consensual same-sex activity between men is a significant human rights issue that faces Barbados. The penalty for this can include up to life imprisonment. Although it is noted that this is rarely enforced, it contributes to a homophobic atmosphere in the country. Item 6.1 explains that surveys have shown that approximately half of all Barbadians support the enforcement of these current laws banning same-sex activity. Although Barbados has recently passed anti-discrimination acts in 2020 that prohibit employment discrimination based on sex and sexual orientation, Barbados does not have any other laws that specifically prohibit discrimination against LGBTQI+ persons outside of the area of employment.  

[10]       Further, civil society groups report that the LGBTQI+ community still faces ongoing discrimination in areas including employment, housing, access to education, and healthcare. 6.1 also reports that the stigma and discrimination commonly manifests in the form of property damage, ostracism, and verbal abuse from strangers, friends, family and broader society, and LGBTQI+ persons also face immense pressure in the Barbados to simply conform to gender norms in order to appease society. It is also noted that those not fitting the traditional gender norms in Barbados are tremendously at risk of physical and sexual violence. The societal discrimination and police disapproval have also made LGBTQI+ persons more vulnerable to threats, crime, and destruction of property. I therefore find the objective basis for this claim is established.  

Nature of the Harm   

[11]       I have examined your claim under section 96 of IRPA, as I conclude the risk you described constitutes persecution based on one of the grounds in section 96. Again, your membership in a particular social group as a gay man. I find you are at risk of harassment, discrimination, physical harm, and possible arrest and prosecution for your sexual orientation, and an inability to live openly as a sexual minority.  

State Protection 

[12]       I find there is clear and convincing evidence before me that the state is unable or unwilling to provide you with adequate protection. As outlined above, consensual same-sex sexual acts are illegal and carry heavy sentencing. There are also limited legal protections for those who face discrimination as a result of their sexual orientation. As you discussed in testimony, there was an incident where you were physically assaulted, and when police became involved, they shifted their focus onto your sexual orientation rather than the crime itself. This is also confirmed in the documentary evidence in Item 6.1. It reports that most members of the LGBTQ community in Barbados do not report matters to the police out of fear of further negative repercussions and ridicule.   

[13]       Country reports in the UN Human Rights Councils also recorded that police in Barbados have been denounced as discriminatory in their treatment of LGBTQI+ victims, and that individuals attempting to make reports often face condemnation by police officers, and justice is very rarely served for members of the LGBTQ community. Often, charges that are made are dropped after years waiting or due to missing reports and incomplete investigations. I therefore find that the objective evidence on the persecution of and lack of state protection available to LGBTQI+ identified individuals in Barbados rebuts the presumption of state protection.  

Internal Flight Alternative 

[14]       I have also examined whether a viable internal flight alternative exists for you. Based on the evidence on file, I find that you face a serious possibility of persecution throughout Barbados. As the legal framework and the anti-LGBTQI+ atmosphere is consistent throughout the country, and coupled with Barbados’ small geographic size and population, I find there are no parts of the country where you would not face a serious possibility of persecution. Therefore, there is no internal flight alternative available to you.  

CONCLUSION  

[15]       In light of the preceding, I conclude that you are a refugee pursuant to section 96 of the Immigration and Refugee Protection Act. Accordingly, I accept your claim today. 

——— REASONS CONCLUDED ———