2023 RLLR 165

Citation: 2023 RLLR 165
Tribunal: Refugee Protection Division
Date of Decision: December 19, 2023
Panel: Joseph Berkovits
Counsel for the Claimant(s): Ariel M Hollander
Country: Kenya
RPD Number: TC3-18832
Associated RPD Number(s): N/A
ATIP Number: A-2024-00894
ATIP Pages: N/A

 

DECISION

 

[1] MEMBER: I am now going to give my reasons for file number TC3-18832.

 

[2] XXXX XXXX XXXX, the claimant, a citizen of Kenya, claims refugee protection, pursuant to
sections 96 and 97(1) of the Immigration and Refugee Protection Act, or the IRPA.

 

[3] I have considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics; and the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.

 

[4] The names of all third parties have been redacted to their initials for privacy and safety reasons.

 

[5] All citations from the objective evidence are from the National Documentation Package for Kenya, the August 31st, 2023 version, which is referenced in Exhibit 3.

 

[6] For the reasons given below, I find that you, the claimant, are a Convention refugee, because should you return to Kenya, you face a serious possibility of persecution, on the grounds of your membership in a particular social group, bisexual women.

 

[7] Your allegations are, in summary, that you cannot live safely and freely as a bisexual woman in Kenya; that you fear members of your community, certain members of your extended family, as well as the Kenyan State, who are all unaccepting of bisexual women, and can perpetrate and condone violence against them. You also fear legal sanctions from the Kenyan authorities, which have criminalized same-sex relationships, as well as from members of a criminal organization, known as the Mungiki, who are known to perpetrate acts of violence with impunity against the LGBTQIA2+.

 

[8] Your identity as a citizen of Kenya has been established by a certified copy of your passport.

 

[9] I, therefore, find that you have established your identity, on a balance of probabilities.

 

[10] Given your allegations, your claim will be assessed, pursuant to section 96 of the IRPA, with the nexus being your membership in a particular social group, bisexual women.

 

[11] In terms of credibility, when a claimant swears or solemnly affirms that certain facts are true, this creates a presumption that they are true, unless there is a valid reason to doubt their truthfulness.

 

[12] In terms of your general credibility, and in light of the evidence below, I found you to be a credible witness.

 

[13] And I, therefore, accept what you have alleged in your oral testimony and in your Basis of Claim form. 

 

[14] I have also found your corroborative evidence to be reliable and trustworthy. And as such, I have assigned it full weight in supporting your credibility.

 

[15] In your testimony today, and in your detailed written narrative, you have provided a credible account of your life as a bisexual woman in Kenya.

 

[16] You testified credibly about how you would hear statements being made about same-sex relationships not being very common, because it was illegal in Kenya. And how this, when you were attending high school, made you feel very scared.

 

[17] You testified credibly about a classmate you had in high school, R. M., with whom you were very close. And testified that you did a lot of activities together, and how you eventually started a relationship together. You testified credibly how R. M. was very kind, and when you told her about the hardships and abuse that you were going through in your personal life, you testified that she had a lot of empathy for you, and how she really helped you mask the feelings of pain that you were going through at the time.

 

[18] In your narrative, you detailed how you were compelled to become homeless for several years at a young age, as a result of your abusive uncle turning you out of his home. And how you, at first, had a relationship with a man, R. O., who became the father of your child. And then, sometime soon after, you met your female partner, F. K., who took you in with your daughter, and helped you achieve a measure of independence by teaching you about the XXXX business where you worked together, achieving your own business.

 

[19] You testified credibly about the hardships that you both went through, as a result of customers who were not tolerant of your relationship, making you experience feelings of fear. You also detailed how you were targeted and assaulted by a criminal cult, known as the Mungiki, who are known to attack the LGBTQIA2+. You testified that when your business was unfortunately and ultimately burned down, it could have been either by the Mungiki, or could have been by intolerant customers who did not want to see you in this business.

 

[20] You also testified how your abusive uncle remained a threat, and how he told the extended family about your sexual orientation, exposing you to danger in your community.

 

[21] After you described both the suffering that you and F. K. experienced in the business — sorry — after you described how the suffering that both you and F. K. experienced in the business world, became a factor in ending your relationship, you testified how you ultimately met your next female partner, L. M., whom you described as someone you were compatible with, and that you were similar with in so many ways. Somebody, you testified, who is kind and someone you could be open with. 

 

[22] You also testified of how L. M. took you to meet her parents, which meant a lot to you, given how your parents were no longer with you at this point. You also testified how, given that both of your birthdays were in XXXX, you celebrated your birthdays jointly, which was something that was special. 

 

[23] Your former partner, L. M., provided a detailed letter of support, where she corroborated much of your evidence. And where she described, much as you did, how you first met, and also confirmed how you both suffered attacks, which caused you to escape to another city. She also detailed how your extended family posed a threat to you, as well. She further described that she would testify to confirm that she continues to live, herself, in a state of hiding and in fear, as a member of the LGBTQIA2+. This letter is to be found in Exhibit 5. 

 

[24] You also provided photos of you together with L. M. in various social situations, including celebrating your birthdays together. You also provided photos of you together with your former partner, F. K., in various social situations, and about which you testified credibly. These photos are to be found in Exhibit 5.

 

[25] Your older sister, who currently cares for your daughter, also provided a corroborative letter. This is to be found in Exhibit 5. She confirms much of the history of family hardships that you set out, and she states how she wishes you well, as you look for a, quote, “safe place in Canada, where you can fully express your sexual orientation without fear of persecution.” Unquote. She further states that she believes, quote, “beyond a doubt, that if you were forced to return to Kenya, you would be hurt by members of the community,” unquote, who know about your sexual orientation.

 

[26] You also testified credibly about how you undertook short trips to South Africa, Qatar, and Türkiye, at times that you experienced either threats or were recovering from traumatic homophobic incidents, hoping that these places might provide safe harbours from the treatment that you were experiencing in Kenya as a bisexual woman. But discovering that these were not safe alternatives for you to go to. You testified, for example, credibly, how you would go to visit a friend from the XXXX business who resided in Türkiye, but encountered hostile treatment from his family, who are not tolerant of bisexual women. 

 

[27] You also testified about how you attempted to find safety in various parts of Kenya’s south, living in Nairobi and in villages in its vicinity, as well as in Mombasa. At distances, for example, some eight (8) hours between Nairobi and Mombasa by car, as well as in your birth city of XXXX, which is some 

[28] two (2) hours away from Nairobi.

 

[29] You testified credibly that you never felt safe as a bisexual woman anywhere in Kenya. You also testified credibly that you fear that the police, even in the wakes of the threats and violence that you experienced, would only make your situation worse, as they would not be of assistance to an LGBTQIA2 person — would only punish you (ph), you testified, believing as they do, that it is against the law to be bisexual in Kenya, as well as being against their own religious beliefs.

 

[30] I found that all of this evidence that you provided of your life experiences in Kenya were supportive of your allegation that you are a member of a particular social group, bisexual women.

 

[31] As such, I find that your agents of persecution are the Kenyan government; and widespread elements of Kenyan society; as well as certain members of your extended family, including your uncle; as well as dangerously homophobic elements of your community, including the criminal group, the Mungiki, who all seek to express their tolerance of bisexual women by either harming them, or by stigmatizing them, or by criminalizing their relationships.

 

[32] You have also provided a detailed and credible account of your life in Canada, as a bisexual woman, and I find that this, too, supports your allegation of your personal identity as a bisexual woman.

 

[33] I am mindful of the Chairperson’s Guideline 9, which advises that Panels are not to rely upon such assumptions that members of the LGBTQIA2+ would actively participate in this culture. With this in mind, though, I do wish to acknowledge your credible testimony about your impressions of your life in Canada as a bisexual woman, as compared to your life in Kenya as a bisexual woman. 

 

[34] You testified today, credibly, that in Canada you can join communities that are not available in Kenya. And that you can feel free living in Canada, and can express your feelings without being judged. And that you can be who you are, and live your truth without fear.

 

[35] You testified about your impressions of the LGBTQIA2+ oriented XXXX XXXX in Toronto, where you made some friends and thought that you were being helped to accept who you are. You also testified credibly about your impressions of the LGBTQIA2+ positive XXXX XXXX XXXX, where you testified that you, quote, “felt loved” and felt that you have a family there. You also provided a number of photos, to be found in Exhibit 5, of you together with a senior pastor at the church, as well as a letter of reference from the church, to be found in Exhibit 6.

 

[36] You also testified credibly about your experiences of the recent Pride Parade, where you testified that you enjoyed seeing people expressing themselves openly, publicly, and without fear. And how they were able to talk about who they are. You provided a number of photos from the event, of which you provided credible testimony. 

 

[37] And in one of the photos, you pointed out a friend next to you, J. J., who is somebody with a similar background that you met at XXXX XXXX XXXX. And you described how you later undertook studies together. You testified about how you attended many meetings together. J. J. provided a corroborative letter, to be found in Exhibit 5, where she describes how you have both been, quotes, “supporting one another to overcome the trauma that you went through in your home country, Kenya,” unquote. You also provided corroborative letters from XXXX XXXX XXXX XXXX XXXX XXXX, as well as from other community organizations where you will volunteer. These letters are to be found at Exhibit 5.

 

[38] In light of your credible evidence and testimony about your life in Kenya, I find that you have provided further corroboration for your personal identity as a bisexual woman.

 

[39] I find, therefore, that in light of this credible and well-corroborated evidence, you have established your subjective fear of persecution, on the basis of your membership to a particular social group, bisexual women.

 

[40] In terms of the objective evidence, consensual same-sex activity is known to be punishable with up to 14  years in prison, pursuant to the Kenyan Penal Code, which deems such relationships to be, quote, “unnatural offences,” unquote, and to be, quote, “against the order of nature,” unquote. This is from Item 6.7.

 

[41] As such, that, I acknowledge that an agent of persecution is the State itself.

 

[42] It has also been noted that homophobia is solidly rooted within the Kenyan religious-political rhetoric. This is from Item 6.5. For example in 2014, a dangerous spike of violence against the LGBTQIA2+ in Kenya had been observed, following the foundation of a parliamentary “anti-gay” caucus, which called for citizens’ arrest of “gays and lesbians.” These incidents have dramatically increased. This is from Item 6.5.

 

[43] It has also been noted from an LGBTQIA2+ advocacy group in Kenya, that people who do not conform to society’s expectations about gender and sexuality are in danger. According to this organization, the LQBTQIA2+ are not only marginalised, but often face violence and discrimination when they are open about their sexual orientation and gender identity. This danger can also emanate from an individual’s family, or from the community, or from state officials. This is from Item 6.3.

 

[44] It has also been noted that members of the LGBTQIA2+ community can face arbitrary arrests, violence, and even murder. Studies have noted that lesbians, and by extension, bisexual women, face abuse from immediate and extended family members, and that they have experienced at least one incident of physical violence by relatives, according to one study. This is from Item 6.5.

 

[45] In terms of the threat that you have described from the Mungiki, the Mungiki have been depicted in the objective evidence as an “outlawed religious Kikuyu sect.” According to Freedom House and international scholars, the goals of the Mungiki are to defend the so-called “rights” of the so-called “traditional,” and supposedly, “disadvantaged members” of the Kikuyu group, making them an ethnically affiliated gang. It has been estimated that as of 2016, the Mungiki have about 500,000 members. Studies of the Mungiki have noted that they are prone to engage in gang violence, and they are also known to engage in killing and brutal ritualistic murders. This is from Item 7.10.

 

[46] As such, I find that there is objective evidence to corroborate your allegations that the Mungiki pose an additional threat to you, as a bisexual woman, and that these are one of the agents of persecution that you also face in Kenya.

 

[47] Overall, I find that there is an objective basis for your subjective fear of persecution, on the basis of your membership in a particular social group, bisexual women.

 

[48] Therefore, I find that your fear of persecution is well-founded.

 

[49] In terms of state protection, because it has already been noted that same-sex acts are prohibited by law, this has prevented LGBTQIA2+ (inaudible) persons from reporting crimes perpetuated against them, as they fear arrest themselves, abuse, or extortion by the police. This is from Item 6.6.

 

[50] Objective observers have also noted that the Kenyan police are one of the major perpetrators of violence and abuse against LGBTQIA2+ individuals, and that LGBTQIA2+ individuals are subject to arbitrary arrest and degrading treatment by the police. This is from Item 6.7. Hence, it has been noted that sexual minorities are afraid to go to the police. This is from Item 6.7.

 

[51] I, therefore, find that adequate state protection would not be available to you, on the basis of your personal identity, as a bisexual woman.

 

[52] You have, therefore, rebutted the presumption of state protection.

 

[53] In terms of internal flight alternative, or IFA, the test to be applied is two (2)-pronged. In plain language, I must be satisfied, on a balance of probabilities, that it would be safe for you to return to the IFA location, and that it would be reasonable for you to do so. Both of these prongs must be satisfied for a finding that a claimant has a viable IFA.

 

[54] I find that the test for IFA fails on its first prong, which is the safety part of the test, and that is enough for the test to fail in its entirety.

 

[55] By virtue of the criminalization of same-sex relationships, I find that an agent of persecution is the State itself.

 

[56] This position is mirrored by the homophobic attitudes of much of Kenyan society, as already documented above. 

 

[57] As a Kenyan human rights advocacy group has observed, individuals from the LGBTQIA2+ community are subject to discrimination, harassment, abuse, and violence. And they note that this treatment applies all across Kenya. This is from Item 6.7. It has also been noted that even in metropolitan cities, such as Nairobi, there has been homophobic treatment of the LGBTQIA2+, and that Nairobi is, therefore, not a safe city for the LGBTQIA2+. It has also been noted that harassment and violence against the LGBTQIA2+ occurs in every county in Kenya, from city centres to more rural areas. This is from Item 6.7.

[58] As such, I find that the test for viable internal flight alternative fails on its first prong, given that there is no place where you could reside safely in Kenya as a bisexual woman.

 

[59] And this is confirmed in many ways by your testimony about your travels within the country, in an unsuccessful attempt to find safety in Kenya.

 

[60] Therefore, I find that there is no viable IFA available to you, in your particular circumstances.

 

[61] Based on the totality of the evidence, I, therefore, find that you, the claimant, will face a serious possibility of persecution, pursuant to section 96 of the IRPA, should you return to Kenya.

 

[62] Your claim for protection is, therefore, accepted.

 

——— REASONS CONCLUDED ———