2023 RLLR 127

Citation: 2023 RLLR 127
Tribunal: Refugee Protection Division
Date of Decision: December 12, 2023
Panel: Gino Vlavonou
Counsel for the Claimant(s): Deborah Samara Rachlis
Country: Bangladesh
RPD Number: TC3-39413
Associated RPD Number(s): N/A
ATIP Number: A-2024-00768
ATIP Pages: 000045-000053

DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) regarding the claim of XXXXX (the “claimant”), a national of Bangladesh. He seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

Guideline 9

[2]       The panel has considered and applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC)² in the conduct of the hearing into this claim, and in the substantive fact assessment of this claim.

ALLEGATIONS

[3]       The following is a synopsis of the allegations put forth by the claimant in his Basis of Claim (BOC) form³, and his BOC amendment.⁴

[4]       The claimant is a 25 years-old citizen of Bangladesh and of no other country. The claimant alleges that his father has been active member of the Bangladesh Nationalist Party (BNP). The claimant’ s father was elected XXXXX until XX 2019. The claimant alleges that he holds progressive views regarding freedom of speech, secularism, and personal autonomy; hence he disagreed from the conservative views of his father. The claimant tried speaking to his father about gay rights, but his father was very upset. The claimant always felt different regarding his sexual orientation but was unable to express it in Bangladesh. In Canada, the claimant discovered his sexuality and live openly as a bisexual man. The claimant alleges that if he returns to Bangladesh, there is a serious possibility that he will be persecuted by the Bengali society. The claimant alleges that there is no state protection for him or an internal flight alternative.

DETERMINATION

[5]       The panel finds that the claimant is a Convention refugee pursuant to section 96 of the IRPA as he faces a serious possibility of persecution in Bangladesh.

[6]       The claim is therefore accepted.

ANALYSIS

Identity

[7]       The claimant personal identity and country of citizenship have been established, on a balance of probabilities, by the documentary evidence on file, including the certified true copy of his Bengali passport.⁵

Nexus

[8]       Considering section 96 of the IRPA, the panel finds that there is a link between the claimant’s fear and one of the five convention grounds, namely membership in a particular social group based on his sexual orientation as a bi-sexual man. The claim is therefore assessed under

s.96. The test under s.96 is whether there is a serious possibility of persecution on a Convention ground should the claimant be returned to Bangladesh. The panel finds that the claimant met this test.

Credibility

[9]       In assessing the credibility of the evidence presented by the claimant, the panel kept in mind the decision of the Federal Court of Appeal in Maldonado⁶ wherein the Court stated, in part, that “when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.” The panel finds the claimant’s testimony was straightforward and spontaneous. The claimant was able to respond to questions posed by the panel and provide detail when asked to do so.

[10]     The claimant’s testimony regarding his awareness of his sexual orientation from an early childhood was straightforward. There were no obvious discrepancies between the claimant’ s oral testimony and allegations in his written narrative. The claimant made no apparent attempts to embellish his claim. Accordingly, the panel accepts, on a balance of probabilities, the allegations central to the claim, including those set out above in the “allegations” section of this decision.

[11]     The panel finds that the crux of the claim is that the claimant is a bisexual man who has progressive political idea in the context of a conservative Islamic society. When considering the Guideline 9 the chairperson recommends in section 8.5.2.1 that “that Some SOGIESC individuals may face differential risk due to additional factors such as race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education.” As the chairperson suggests, these intersectional factors should be considered when determining whether an individual has established a well-founded fear of persecution. In this case the panel considered the intersectional factors such as the sexual identity as a bisexual man and the progressive political views of the claimant regarding Islam.

[12]     The claimant testified that growing up, Bengali society was not welcoming to bisexual people. The claimant testified that he tried to come out to his parents, but he was beaten. The claimant testified that his parents grounded him for weeks when he tried to express his sexual orientation, advising him not to bring shame upon the family. The claimant testified that his father is a conservative Muslim leader who abide by Islamic law. Although the claimant’s father supports democracy, the father does not approve of people who do not support Islam. The claimant, once in Canada, started studying at XXXXX.⁷ At the University, the claimant registered and became a member of the New Democratic Party (NDP) campus club since the XX of 2018.⁸ At that time the claimant has had the opportunity to deepen and strengthen his progressive political views.⁹ The panel finds that on a balance of probabilities, the claimant holds political views that do not conforms to the political and social life in Bangladesh.

[13]     The claimant’s testimony regarding his awareness of his sexual orientation from an early childhood was straightforward. The claimant testified that he has had relationship with people who identify as female most of his life, but the claimant also had relationship with people who

identify as Male.¹⁰ It is in Canada that the claimant got intimate with a male partner, in 2019. The claimant testified that he was beaten by his father regarding his sexual orientation. The claimant testified about his inability to express his sexual identity. The claimant testified that in Bangladesh, he felt like he was being “slowly chocked”. Once the claimant was in Canada and that his parents were convinced of his sexual orientation, the claimant’s parents cut off their financial support to show their disapproval of the claimant’s sexual orientation. The panel finds that on a balance of probabilities the claimant established that he is bisexual.

[14]     Upon review of the exhibits on file, the tribunal has no reason to doubt the authenticity of any of the documents and accepts them as corroborative of the core allegations advanced by the claimant and places full weight on them.¹¹ The claimant submitted affidavits from his former partners in Canada, his brother in Bangladesh, as well as supporting friends. These documents help establish that the claimant had male and female partners, and that his progressive political views countered those of the Bengali society.

Well-Founded Fear of Persecution

[15]     The panel has sought guidance from the most recent National Documentation Package (NDP) for Bangladesh to assess the objective basis for the claimant’s fear of persecution based on his particular social group as a SOGIESC claimant.¹² The panel finds that the situation for the claimants in Bangladesh is very dangerous. Conservative attitudes prevail in Bangladesh and public displays of affection are not considered socially acceptable.

[16]     According to the objective evidence, sex between two men is illegal under section 377 of the Penal Code and carries a life prison term. Prosecutions are rare, which is probably why the LGBTI community is so hidden.¹³ The objective evidence also indicates that although the law that criminalizes homosexual relationships is not systematically applied, it reinforces a general climate of homophobia and impunity for those who persecute LGBT individuals. Moreover, the law is applied in an unofficial manner without recorded prosecutions by State and non-State agents.¹⁴ Furthermore, although a secular country, Bangladesh provides for Islam to be the state’s religion under which any sexual activity outside of a heterosexual marriage is prohibited.¹⁵

[17]     Social and cultural opportunities for LGBTI people in Bangladesh are limited, and many LGBTI people with the capacity to do so flee overseas.¹⁶ Male same-sex relationships are taboo but there is a general lack of awareness of female same-sex relationships. Almost all LGBTI people in Bangladesh keep their sexual orientation or gender identity secret. There is strong family and social pressure on gay men and lesbians to enter heterosexual marriages. LGBTI people must be very security aware; threats against them, including by religious extremists, are common. Homophobic hate speech is common on social media.¹⁷

[18]     The foregoing information militates in favor of a strong objective basis for concluding that the claimant would face a serious possibility of persecution based on his sexual orientation if he returned to Bangladesh. For that reason, the panel finds the claimant established a well­ founded fear of persecution.

State Protection

[19]     There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. ¹⁸ To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens.¹⁹ State protection does not have to be perfect as no state can guarantee perfect protection. Instead, the test for state protection is whether the protection is adequate at the operational level. As such, the claimant bears a heavy burden.

[20]     Police use that law to harass men perceived to be effeminate. Laws against pornography, drug or alcohol offences are often used to target gay men. Harassment includes using the Penal Code as leverage to extort bribes from individuals under threat of arrest, and to limit registration of LGBTI organisations.²⁰

[21]     A report by Human Dignity Trust²¹ states that in 2016 the levels of violence and threat from religious radicals that LGBT people have been exposed to have exponentially risen, and the State has not offered protection. As such, many have been forced to leave their homes and flee the country for fear of their lives.²²

[22]     In May 2017, police in Bangladesh arrested 27 men for “homosexuality”. The police stormed a community centre outside of Dhaka where they claimed students had been having a party. A Rapid Action Battalion spokesman told the press that the men had been arrested on suspicion of “homosexuality”, and that it had not been determined under which law they would be formally charged. It was later announced by police that the men were not engaged in same­ sex sexual activity, but arrested them for possession of prohibited drugs.²³

[23]     In XX 2019, in Canada, the claimant testified that that he posted video on his Facebook account where he was critical of the government. The claimant’s video caught the attention of the government because security personnel from the Bangladesh’s Rapid Action Battalion, contacted the claimant’s father regarding his videos. Subsequently, the claimant changed the privacy settings of his videos so that they are not visible by the public. The panel finds that on a balance of probabilities, the Bengali government is aware of the claimant’s progressive political views. The government was willing to exert pression on the claimant’s family to remove the videos.

[24]     The claimant submitted in his amended BOC that he participated in a student protest that was about road safety in the capital, Dhaka.²⁴ The protest morphed into rights protests and the

crowd was attacked by the student wing of the government. The police became involved, and the claimant was injured. The panel finds that on a balance of probabilities the state did not protect the protestors. The claimant submitted in his BOC that his father wanted to file a report but an officer, friend of the father, discouraged the father expressing that filing a report could make the claimant a government target.

[25]     The objective evidence presented was sufficient to demonstrate that, on a balance of probabilities, adequate State protection for the claimant in Bangladesh would not be reasonably forthcoming. Therefore, the presumption of State protection is rebutted with clear and convincing evidence.

Internal Flight Alternative

[26]     The panel raised the issue of an IFA at the beginning of the hearing and proposed one potential IFA to the claimant: Dhaka. The Federal Court of Appeal held, in Rasaratnam, that there is a two-pronged test for assessing an IFA.²⁵

[27]     In assessing an IFA, the panel must apply a two-pronged test.

a) The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.

b) Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claim, for the claimant to seek refuge there.

[28]     Both prongs of the test must be satisfied to find that a claimant has an IFA. Once the issue of IFA has been raised and potential IFAs identified, the burden of proof rests with the claimant to show that she does not have an IFA.

[29]     The claimant testified that the agent of persecution is the Bengali society in general, including his father who is a political actor. The claimant testified that his father is currently on the party list to be voted as a XXXXX. Considering the intersections of the discrimination that the claimant would face going back, the panel finds, on a balance of probabilities, that the claimant faces persecution throughout the country.

[30]     With respect to an internal flight alternative, the panel does not find that the claimant could live safely in other any parts of Bangladesh considering that the persecutory laws and the mistreatment by society in general exists throughout the country. As such, the panel finds that the claimant would face a serious possibility of persecution throughout Bangladesh. Accordingly, the panel finds that there is no internal flight alternative available to the claimant.

[31]     Through an intersectional lens, the panel finds that the claimant has demonstrated a serious possibility of persecution on the Convention ground of membership in a particular social group – bisexual men. This serious possibility exists throughout Bangladesh and there is no adequate state protection for him there.

CONCLUSION

[32]     Having considered all the evidence, the panel finds that the claimant is a Convention refugee as set out in section 96.

[33]     The claim is accepted.

——— REASONS CONCLUDED ———

¹ Immigration and Refugee Protection Aet, S.C. 200 I, c. 27.

² Chairperson’s Guidelines on Proceedings Before the IRE Involving Sexual Orientation, Gender Identity and

Expression, and Sex Characteristics (SOGIESC). Guidelines issued by the Chairperson pursuant to section 65(3) of

the Immigration Act, IRB, Ottawa, May I, 2017 (revised in December 2021 ), under the authority found in section

159(1) (h) of the Immigration and Refugee Protection Act.

³ Exhibit 2, Basis of Claim Form -TC3-39413.

⁴ Exhibit 4, Corrected Basis of Claim narrative.

⁵ Exhibit I, Claim referral information from CBSA/IRCC.

⁶ Maldonado, Pedro Enrique Juarez. MC.I. (F.C.A. no. A-450-79) Heald, Ryan MacKay, November 19, 1979.

⁷ Exhibit 6, Package of personal documents, 10 items, 22 pages, C-1; C4.

⁸ Exhibit 6, Package of personal documents, 10 items, 22 pages, C-1; C-5; C-8.

⁹ Exhibit 6, Package of personal documents, I 0 items, 22 pages, C-7.

¹⁰ Exhibit 6, Package of personal documents, 10 items, 22 pages, C-8.

¹¹ Exhibit 6, Package of personal documents, 10 items, 22 pages, C-8.

¹² Exhibit 3, National Documentation Package, Bangladesh, August 31, 2023 Version.

¹³ Exhibit 3, National Documentation Package, Bangladesh, August 31, 2023, tab 1.17.

¹⁴ Exhibit 3, National Documentation Package, Bangladesh, August 31, 2023, tab 6.5: Country Policy and

Information Note. Bangladesh: Sexual orientation and gender identity and expression. Version 4.0.

¹⁵ Exhibit 3. National Documentation Package, Bangladesh, August 31, 2023, tab 6.5.

¹⁶ Exhibit 3, National Documentation Package, Bangladesh, August 31, 2023, tab 1.17.

¹⁷ Exhibit 3, National Documentation Package, Bangladesh, August 31, 2023, tab 1.17.

¹⁸ Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

¹⁹ Flores Carrillo, Maria Del Rosario v. MC.I. (F.C.A., no. A-225-07), Letourneau, Nadon, Sharlow, March 12,

2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4

F.C.R. 636 (F.C.A.), at para 38.

²⁰ Exhibit 3, National Documentation Package, Bangladesh, August 31, 2023, tab 1.17.

²¹ Exhibit 3, National Documentation Package, Bangladesh, August 31, 2023, tab 6.4: Bangladesh. Types of

criminalisation: Criminalises sex between men. Human Dignity Trust.

²² Exhibit 3, National Documentation Package, Bangladesh, August 31, 2023 Version, tab 6.4

²³ Exhibit 3, National Documentation Package, Bangladesh, August 31, 2023 Version, tab 6.4

²⁴ Exhibit 6, Package of personal documents, 10 items, 22 pages, C-9.

²⁵ Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91 ), Mahoney, Stone, Linden, December 5, 1991.

Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [ 1992] I F.C. 706 (C.A.)