2023 RLLR 169

Citation: 2023 RLLR 169
Tribunal: Refugee Protection Division
Date of Decision: December 21, 2023
Panel: David Ang
Counsel for the Claimant(s): Kirk J Cooper
Country: Kenya
RPD Number: TC3-23950
Associated RPD Number(s): N/A
ATIP Number: A-2024-00894
ATIP Pages: N/A

DECISION

[1] MEMBER:  This is the decision for the claim of XXXX XXXX XXXX, file number TC3-23950.  You are claiming to be a citizen of Kenya and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.  In making my decision, I have considered and applied the Chairperson’s guideline 9 on sexual orientation, gender identity and expression, and sex characteristics.  Having considered your testimony and the other evidence in the case, I am ready to render my decision orally.

DETERMINATION

[2] I find that you are a Convention refugee as you face a serious possibility of persecution in Kenya on the grounds of your sexual orientation as a gay man.

ALLEGATIONS

[3] Your allegations can be found in your Basis of Claim form found at Exhibit 2.  You alleged that you face persecution in Kenya because you are a gay man.  You alleged that you and your same-sex partner, F, were discovered together by your roommate on XXXX XXXX, 2022.  You alleged that your roommate attempted to blackmail you for money, and that when you could not pay him, he reported you to the police.  You alleged that the police have charged you with committing unnatural acts contrary to the Kenyan Penal Code, that you were summoned to court, and that, when you did not appear at court, a warrant was issued for your arrest.

ANALYSIS

Identity

[4] I find that your identity as a Kenyan citizen is established by your testimony and a copy of your Kenyan passport.

Nexus

[5] I find that there is a link between what you fear and one (1) of the five (5) Convention grounds, namely membership in a particular social group based on your sexual orientation as a gay man.  Therefore, I have assessed your claim under section 96 of the IRPA.

Credibility

[6] I find that there were some omissions in your Basis of Claim.  However, I find that you testified in a straightforward manner, and overall, I found your testimony to be consistent with your Basis of Claim and supporting documents.  On the testimony and evidence before me, I find that you have established, on a balance of probabilities, a profile as a gay man.  You testified that you began to understand your sexual orientation in high school and that you were able to understand yourself much more once you were in university.  You testified that, during high school, you felt confused and were in denial because you were raised in a Christian Anglican background and your sexual orientation felt like sin.  However, once you were in university and you were away from home, you became more open-minded and you understood your sexual orientation was part of who you are and that there was no point in denying it to yourself.  I find that your testimony was forthcoming about how you discovered your sexual orientation.

[7] You testified that you have been in one (1) relationship with a woman and that you have been in five (5) relationships with men.  You testified that you have also had casual sexual relationships with other men.  You testified that you had a same-sex relationship with R from the XXXX of 2014 to the XXXX of 2017, with D from 2018 to 2021, and with F from 2021 to now.  I find that you testified about your relationships in a forthcoming manner and you were able to describe your partners and your relationships with them in detail.  You provided letters of support from R, D, and F and I find that their letters were consistent with your testimony.  During the hearing, you were able to show me your WhatsApp text messages with F and I could see that you were conversing as recently as yesterday and that your text messages were of an affectionate nature.  I accept that you have been in genuine same-sex relationships with these partners.

[8] You provided copies of the summons, warrants, and charge sheet from the alleged Kenyan criminal proceedings against you.  I asked you how you obtained these documents and you testified that, before leaving Kenya, you e-mailed the court registry, paid the fees, and copies of these documents were e-mailed to you.  I asked you why you did not provide copies of the e-mails to the court registry in your disclosure and you answered that you had deleted the e-mails when you left Kenya for the US because you were concerned that the US border authorities would find incriminating documents on your phone.  I asked you why you did not explain how you obtained these documents in your Basis of Claim and you answered that you did not know you were required to do that.  I find that you have not provided an adequate explanation for this omission.  I note that you have been assisted by Counsel in your claim.  It would be reasonably expected for you to explain how you were able to obtain these documents from the criminal proceedings in Kenya.  Therefore, I draw a negative inference from this omission.

[9] I also find that there were irregularities in the copies of the summons, warrants, and charge sheet from the alleged Kenyan criminal proceedings against you.  For example, the headers for the summons and warrant do not match each other with different-sized crests, the underlining of Republic of Kenya on one (1) document but not the other, and the mismatched justification of the text in the upper right corner of the header.  There is a typographic error on the summons that reads, you are hereby commanded to attend court at 8:00 a.m. on the XXXX day of XXXX 2022 and depart without leave of the court or until the case is finished.  The charge sheet is missing a signature on the Director of Public Prosecution stamp and there is a missing date on the Kenya police stamp.  I find that the authenticity of these documents is not established on a balance of probabilities and I give them zero (0) weight.

[10] Notwithstanding the omissions from the Basis of Claim and the question of the authenticity of the criminal proceeding documents, I find that you have established on a balance of probabilities the central allegation of your claim that you are a gay man based on your testimony and your other supporting documents.  Therefore, I find that you have established on a balance of probabilities a subject of fear of persecution as a gay man if you were to return to Kenya.

Well-Founded Fear of Persecution

[11] I find that the objective evidence supports your fear of returning to Kenya as a gay man.  This objective evidence is found in the National Documentation Package (NDP) for Kenya at Exhibit 3.  I refer to Items 2.1, 6.1, 6.4, 6.6, and 6.7 in the NDP.  Specifically, I note that same-sex activity is criminalised under Kenyan Penal Code.  This includes sections 162, which sets out that a sentence of up to 14 years for “carnal knowledge against the order of nature” and 165, which sets out a five (5)-year sentence for gross indecency between males.  This criminalisation of same-sex activity was upheld by the High Court of Kenya in a 2019 decision.  While there are some indications that attitudes towards SOGIESC individuals in Kenya are improving, stigma against sexual minorities remains deeply entrenched.  The stigma is reinforced by those who hold the highest levels of political office in Kenya including past President Kenyatta, who stated in a 2018 interview that “Kenya does not consider gay rights relevant as it goes against the cultural beliefs of Kenyans.”

[12] Sources also note that violence and discrimination against SOGIESC individuals in Kenya is widespread.  SOGIESC individuals also face difficulties in obtaining assistance from authorities with reports indicating that SOGIESC individuals have faced harassment, extortion, and sexual or physical assault by police in the past.  Sources indicate that, to maintain their safety, SOGIESC individuals often need to hide their sexual orientation or gender identity.  Based on this objective evidence, I find that there is, on a balance of probabilities, an objective basis for your fear.  As subjective fear and objective basis have been established, I find that you have a well-founded fear of persecution in Kenya.  Therefore, I find that you would face a serious possibility of persecution should you be returned to Kenya.

State Protection and Internal Flight Alternative

[13] As same-sex activity is criminalised throughout Kenya and homophobic violence continues with impunity based on the objective evidence already noted, I find that there is a clear and convincing evidence that state protection would not be available to you.  I, therefore, find that you have rebutted the presumption of state protection.  Likewise, based on the objective evidence already cited and the criminalisation of same-sex activities throughout Kenya, I find that there is nowhere in Kenya where you would not face a serious possibility of persecution based on your membership in a particular social group as a gay man.  As the test for Internal Flight Alternative fails on the first prong, I find that there is no viable Internal Flight Alternative for you.

CONCLUSION

[14] Having considered the testimony and evidence before me, I find that you have established that you face a serious possibility of persecution if returned to Kenya based on your particular social group as a gay man and that you are a Convention refugee pursuant to section 96 of the Act.  Therefore, your claim is accepted.

——— REASONS CONCLUDED ———