2023 RLLR 108

Citation: 2023 RLLR 108
Tribunal: Refugee Protection Division
Date of Decision: February 16, 2023
Panel: Andriy Rak
Counsel for the Claimant(s): Aidan Connor Campbell
Country: Rwanda
RPD Number: VC2-06589
Associated RPD Number(s): N/A
ATIP Number: A-2024-00593
ATIP Pages: N/A

DECISION

[1]         MEMBER: So, this is the decision of the Refugee Protection Division or RPD in the claim of XXXX XXXX, or the claimant, as a citizen of Rwanda who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act or the Act.

[2]         In assessing this case, I have considered and applied the Chairperson’s Guideline number 9, which is proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics. This guideline establishes guiding principles for decision makers in adjudicating cases involving SOGIESC, including an understanding of the challenges faced by the individuals with diverse SOGIESC.

ALLEGATIONS

[3]         The full allegations are contained in the claimant’s Basis of Claim form and are summarized basically very shortly that the claimant fears persecution in Rwanda because of the sexual orientation.

DETERMINATION

[4]         I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA. 

[5]         With regards to the identity, the claimant’s identity is established on a balance of probabilities by a copy of Rwandan passport on file. 

[6]         With regards to credibility, pursuant to the Maldonado principle, when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there would be reason to doubt their truthfulness. There were no material inconsistencies or contradictions between the claimant’s Basis of Claim form and other evidence before me. In this case, I have no reason to question the claimant’s allegations. The claimant has also adduced substantial documentary evidence to support allegations. These include letters from several LGBTQ organization attesting to the claimant’s membership and robust volunteer involvement in the organizations and in the events. I find that cumulatively these documents corroborate the claimant’s sexual and gender orientation and the allegations, and I accord substantial weight to these supporting documents, as thus, I find the claimant credible and find on a balance of probabilities that the claimant has established a subjective fear of persecution in Rwanda based under his sexual and gender orientation. 

[7]         With regards to nexus, I find that the persecution the claimant faces has a nexus to the Convention ground of — has — on the part of being membership in a particular social group of transgender, non-binary, and queer persons, and therefore this claim will be assessed under section 96. 

[8]         With regards to well-founded fear of persecution, the objective country conditions documentation, which is National Documentation Package for Rwanda, says that while same-sex relations are not criminalized in Rwanda, there are no laws that prohibit discrimination based sexual orientation or gender identity. One (1) report notes that which the Constitution provides for equal protection on the law, that protections under the following law, which is law number 95 2008 on the prevention and punishment of gender-based violence, does not provide adequate protection for people when addressing gender-based violence because it defines gender-based violence as violence or harmful to an individual because they are female or male. The recent report notes that in Rwanda, public order, public indecency, and vagrancy offences are used to target transgender and gender diverse people, and the report goes on to note those with diverse SOGIE face discrimination, social stigma, homophobia, and that there are still barriers to full acceptance of people with diverse SOGIE. A Reuters article also reports that LGBT+ does say they are often fired, evicted, labelled as satanic, or ostracized by family and friends if they come out, with violent threats forcing some to flee the country. So, despite the legal frameworks which do not allow charges for crimes based on sexual orientation or gender identity, other charges can be used to detain people of diverse SOGIE, and harassment and illegal arrest and detentions are still reported. Some police still perceive and treat people with diverse SOGIE as deviant people and these people are treated with de facto criminalization. Advocates report law enforcement officials routinely abused in transit centres with transgender persons targeted for particular severe hate speech and violence, and the government did not report investigating any of these cases. So, the evidence highlights that many of the claimant’s allegations that they — that the claimant has experienced discrimination, stigma due to their gender identity and sexual orientation, the claimant has established a well-founded fear of persecution based on the subjective fear and the objective evidence. 

[9]         With regards to state protection, states are presumed to be capable of protecting their citizens except in situations where the country is in state of complete breakdown. The responsibility to provide international protection only becomes engaged when national state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens. The claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life ineffective — to seek ineffective protection. In this case, the objective evidence highlighted before confirms with while there is some legislation protecting all persons that is in the place, state protection on the ground is inadequate. It is noted within much of the evidence that transgender people are particularly mistreated by authorities and that authorities do not effectively or consistently apply legal protections. I find that the claimant could not have effective state protection available and that the presumption of state protection is therefore rebutted. 

[10]      With regards to internal flight alternative, I have considered whether there would be a place anywhere in Rwanda where the claimant would be safe and could go to.  There is no such place. In this case, I note that Rwanda is geographically compact and that the attitude is prevalent in the society and authorities are the same throughout the country. I find there would be no place in Rwanda where the claimant could go to escape the discrimination, stigma, and harassment which are faced by members of the LGBTQ community in Rwanda. I find that the claimant faces serious possibility of persecution throughout Rwanda. 

[11]      In conclusion, based on the totality of the evidence, I find that the claimant has established on the balance of probabilities that they are a Convention refugee pursuant to section 96 of the IRPA, and accordingly, I accept the claim. 

——— REASONS CONCLUDED ———