2023 RLLR 174

Citation: 2023 RLLR 174
Tribunal: Refugee Protection Division
Date of Decision: December 15, 2023
Panel: Marnie Hayes
Counsel for the Claimant(s): Talar Chit Jian
Country: Kenya
RPD Number: TC3-41507
Associated RPD Number(s): N/A
ATIP Number: A-2024-00894
ATIP Pages: N/A

DECISION

[1] MEMBER: These are the reasons for the decision in the claim of XXXX XXXX XXXX who claims to be a citizen of Kenya and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] In rendering my reasons, I have considered the Chairperson’s Guidelines on proceedings before the IRB involving sexual orientation, gender identity and expression and sexual characteristics that is the SOGIESC guidelines.

[3] The allegations of your claim are fully set out in your Basis of Claim forms and in the narrative in detail. Very briefly you alleged that you are a bisexual man and you cannot live openly and safely as an LGBTQ person in Kenya. You have a long time male partner whom you saw secretly, and you have a female wife. In XXXX 2022 your identity as a man who has sex with men became public. And you were shunned by your family, you were fired from your job and your wife left you.

[4] Fearing for your future in Kenya as a bisexual man you came to Canada in XXXX of 2023 and made a refugee claim. I find that you are a convention refugee as you have established a serious possibility of persecution if you return to Kenya, based on your membership in a particular social group, that being a member of the LGBTQ community as a man who is attracted to man.

[5] I find that your identity as a national of Kenya is established by your testimony and by a certified true copy of your passport. I find that you were generally a credible witness and I accept that you are attracted to man and that you had a long term sexual relationship with a man in Kenya as well as a wife.

[6] I also accept that your wife has accepted your sexual orientation and has reconciled with you. You testified in a straightforward manner, and in viewing the totality of your testimony I find that it was straightforward, internally consistent and there were no material discrepancies between your testimony and all of the other documents before me. I therefore accept the totality of your testimony and find that you’ve established that you are bisexual on a balance of probabilities.

[7] You provided three letters of support from your (A) your mail partner, (B) your wife and (C) a close friend in Kenya which confirm your sexual orientation. I have no reason to doubt the authenticity of the supporting personal documentary evidence that you disclosed and I find that it corroborates the central elements of your claim and I give it significant weight.

[8] You also provided photos with your male partner and a letter from XXXX XXXX showing that you have reached out to them in order to get involved in Canada.

[9] With regards to a nexus, I find there is a nexus between your fear of returning to Kenya and the convention ground of membership in a particular social group as a man who identifies as bisexual.

[10] With regard to your credibility, so based on the credibility of your allegations and the objective documentary evidence, I find that you’ve established a future risk that you’ll be subjected to discrimination, bullying and even violent mistreatment in Kenya by the authorities and by the community at large due to your sexual orientation.

[11] The fact that you will face these risks is corroborated by numerous documents and sources found in the most recent national documentation package for Kenya dated August 31st, 2023 including in Items 2.1 and 6.1 through 6.16.

[12] For example Item 2.1 the United States Department of State Report for 2023 states that the penal code criminalizes carnal knowledge against the order of nature, which was interpreted to prohibit consensual same-sex sexual conduct and specifies a maximum penalty of 14 years of imprisonment if convicted, and seven years for attempting said conduct. The law also criminalizes acts of gross indecency between men, whether in public or in private with five years’ imprisonment. Police detained persons under these laws, particularly persons suspected of prostitution.

[13] LGBTQI+ organizations reported police more frequently used general public order laws to arrest or harass LGBTQ individuals. NGOs reported police frequently harassed, intimidated, or physically abused LGBTQ persons in custody and they also reported police threatened gay men while in custody with forced anal examinations, which were outlawed in 2018. The DOS also says that violence against LGBTQ individuals and including non-state actor violence was widespread.

[14] Additionally, the UK Home Office Report for 2020 state at Item 6.6 states that NGOs reported police frequently harassed, intimidated, or physically abused LGBTQ individuals in custody. As well the UK Home Office report says some LGBTQ persons have experienced harassment, verbal and physical assault, blackmail, intimidation and discrimination in employment, education, housing and accessing healthcare. LGBTQ people have also been victims of violence including killings, rape and mob violence. And this source also states that violence and discrimination against LGBTQ individuals was widespread. So I find that the harm that you would face upon return to Kenya mistreatment at the hands of authorities and homophobic society at large clearly amount persecution.

[15] With regards to state protection, the preponderance of the evidence indicate that the police often refuse to act in cases involving the LGBTQ community. And as mentioned, the law in Kenya criminalizes same sex partnership and therefore I find it would be objectively unreasonable for you to seek the protection of the state and find therefore that you’ve rebutted the presumption of state protection.

[16] Where the state is the agents of persecution I find that it would not be reasonably forthcoming for the Principal Claimant to seek state protection in Iran. As such, I find that the presumption of state protection has been rebutted.

[17] Finally I find that there is a serious possibility of persecution in all parts of the country because the law, the authorities and the societal attitudes operate similarly throughout the whole country and therefore find there is no viable Internal Flight Alternative. So based on this analysis I conclude that you are a convention refugee and I accept your claim. So, that concludes our hearing.

——— REASONS CONCLUDED ———