2023 RLLR 184
Citation: 2023 RLLR 184
Tribunal: Refugee Protection Division
Date of Decision: February 14, 2023
Panel: K. Bainbridge
Counsel for the Claimant(s): Michael Korman
Country: Pakistan
RPD Number: TC2-14331
Associated RPD Number(s): TC2-14333
ATIP Number: A-2024-01010
ATIP Pages: 000010-000016
DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claims of
XXXX XXXX, the principal claimant or “PC,” and XXXX XXXX, the associate claimant or “AC,” who are citizens of Pakistan and are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the IRPA).1
ALLEGATIONS
[2] The specifics of the claims are set out in the Basis of Claim (BOC) forms2 of the claimants. The following is a summary of the allegations.
[3] The claimants allege that they cannot return to Pakistan because they face a risk of harm from the police and society at large due to their membership in a particular social group as bisexual men.
[4] Further, as this claim involved allegations regarding sexual orientation, I have considered and applied Chairperson ‘s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation Gender Identity and Expression, and Sex Characteristics (“SOGIESC Guideline”). This Guideline assists in assessing the key evidentiary elements when determining the harm individuals may face due to their sexual orientation or gender identity.
DETERMINATION
[5] I find that the claimants have established a serious possibility of persecution in Pakistan due to their membership to a particular social group as bisexual men. Therefore, I find that both claimants are Convention refugees pursuant to s. 96 of the IRPA.
ANALYSIS
Identity
[6] I find that the personal and national identities of the claimants as citizens of Pakistan have been established, on a balance of probabilities, through the supporting documentation filed, namely, certified true copies of their passports.3
NEXUS
[7] I find that there is a nexus between the harms that each of the claimants fear and one of the Convention grounds, namely that they are a both bisexual men who are in a relationship and intend to get married, and as such belong to a particular social group. Therefore, these claims will be assessed pursuant to section 96 of the IRPA. The test under section 96 is whether there is a serious possibility of persecution should the claimants return to Pakistan. I find that the claimants have met this test.
Credibility
[8] In considering credibility, I have considered all the evidence, including the oral testimony and documentary evidence entered as exhibits. I am cognizant of the difficulties faced by individuals in establishing their claims, including cultural factors, the milieu of the hearing room, and the stress inherent in responding to the questions put to them.
[9] When a claimant swears the truth to certain allegations, this creates a presumption that they are true, unless there is reason to doubt their truthfulness.4 The determination as to whether a claimant’ s evidence is credible is made on a balance of probabilities.5 An important indicator of credibility is the consistency with which a witness tells his story, and the existence of inconsistencies can be a valid basis for finding a lack of credibility.
[10] The panel notes that at the outset of the hearing, the AC explained that the PC had a medical condition which XXXX XXXX, however the PC was able to XXXX his answers to the AC, who then provided them to the interpreter, who interpreted for the panel. The panel notes that the PC was eager to answer questions and was very expressive throughout the hearing, which while not necessary, enhanced his testimony despite the modifications taken. The panel found that both claimants provided credible, spontaneous, and straightforward testimony about their relationship, their experience in Pakistan, as well as their current goals to marry in Canada. There were no major inconsistencies or omissions that went to the heart of these claims. As such, I believe what they have alleged, which is summarized below.
[11] The PC and AC are Shia Muslims and citizens of Pakistan. The PC and AC began their romantic relationship in XX 2017. The PC was married to his wife at the time; however, she found the PC and AC in a compromising position and left the PC in XX 2019. The PC and his wife later divorced. The PC and AC were regularly seeing each other in 2020, but things took a turn when the PC was staying at the AC’s family home with the AC, while his family was on vacation in XX 2021. Members from the Tehreek-e-Labbaik Pakistan (TLP) broke into the house and started beating the claimants. As a result of the commotion, someone called the police, and they arrived taking the PC and AC into custody. The TLP lodged a First Information Report (FIR) against the claimants. The claimants later learned from the PC’s father that members of the TLP demanded the police hand over the claimants to them so that they could be publicly stoned to death, however they dropped these demands after negotiations. In retaliation, the TLP filed another FIR against the claimants alleging blasphemy and homosexuality. The claimants were released from police detention upon payment of a bribe of XXXX rupees. Following this, they planned to flee the country. The AC relocated to a friend’ s home for the time being but was told to leave when he found out why the AC was facing problems. After this, both claimants went to stay at the home of the PC’s friend for a few days. The claimants found out that the TLP issued an edict seeking that they be stoned to death and that the police were looking for them to detain them as a result of the pressure from the TLP. What followed was a series of attacks by members of the TLP on the PC’s father and the AC’ s home. The claimants were eventually able to flee to Canada in XX 2021. However, on XX XX, 2022, members of the TLP went to the PC’s home looking for the claimants and shot and killed the PC’s father when he told them he did not know where the claimants were.
[12] The claimants provided a significant number of documents to support their claims, which included: documents relating to arranging their upcoming marriage in Toronto,6 photos of the claimants together in Toronto and at the Pride parade,7 as well as various affidavits supporting their account of events,8 a fatwa issued against the claimants,9 photos of the claimants volunteering at a mosque in Pakistan,10 and various letters of support.11 In addition, the PC’s brother, who they are living with, testified near the end of the hearing about the PC’s sexual orientation and his relationship with the AC. Therefore, based on the testimony of the claimants and the documents provided, I find that the claimants have established their sexual orientation as bisexual men and that they are in a relationship with a plan to get married in the near future.
OBJECTIVE BASIS
[13] I find that the fears that the claimants have of returning to Pakistan are supported by the objective documentary evidence. In Pakistan, sexual activity between men is illegal, and can receive punishment of two to ten years imprisonment under section 377 of the Penal Code.12 While Section 377 is rarely enforced, there are reports that police threaten LGBTI people with it to extract bribes or sexual favours.13 Homosexuality is also deeply taboo in Pakistani society and those who come out as gay or lesbian are likely to face ostracism from their families, be forced into heterosexual marriage, experience discrimination, bullying, and violence.14 Gay and lesbian people in Pakistan face a high risk of official and societal discrimination and a moderate risk of violence and that in order to avoid their risk of violence, individuals will hide their sexual orientation or gender identity to their family and others. When one’s sexual orientation is revealed, it leads to an increased risk and threat to safety and life.15
[14] Further, LGBTQ+ people face significant hostility in Pakistani society, including harassment and acts of violence when they disclose their sexual orientation or gender identity.16 There are also reports that individuals belonging to the LGBTQ+ community are often exploited in sex trafficking and that some victims are offered for sale in “physical markets.”17 Furthermore, the real danger for those in the LGBTQ+ community comes from relatives and Muslim conservative groups which state that homosexuality is unethical, unlawful, and a sinful act in the eyes of Pakistani society. The religious community does not support LGBTQ+ persons at all because the Quran openly declares it to be a sin.18 In addition, in June 2015 two men in Balochistan were arrested after getting married in a ceremony, which they later downplayed as a joke. However, they were arrested, as was the man who facilitated the ceremony.19
[15] In consideration of this objective evidence, I find that the claimants have established their objective fear of persecution should they return to Pakistan.
State Protection
[16] There is a presumption that, unless in complete breakdown, states are capable of protecting their citizens. However, I find that presumption has been rebutted by clear and convincing evidence in this case.
[17] The objective evidence supports a finding that there is not adequate state protection for the claimants, such that those in the LGBTQI+ community often face violence and discrimination and that crimes often went unreported, and police generally took little action when they did receive reports.20 This is in line with the experiences of the claimants because they were both arrested by the police and detained for being found together in a romantic way. The claimants were released upon payment of a bribe of XXXX rupees, and there is a FIR in place which indicates that the authorities wish to arrest the claimants due to their sexual orientation. I find that the state authorities, namely the police, are one of the agents of harm in this case, on a balance of probabilities.
[18] Therefore, I find that the claimants have rebutted the presumption of state protection and there is no adequate state protection available to them in Pakistan, on a balance of probabilities.
Internal Flight Alternative
[19] I have also considered whether the claimants could safely live in another part of Pakistan. However, considering that the claimants have been exposed as having a same-sex relationship with each other, to the police, their families, and the community, I find that they each face a serious possibility of persecution throughout Pakistan. The objective evidence establishes that violence, harassment, threats, and discrimination towards the LGBTQ+ community is a risk throughout Pakistan, and it is not confined to a particular region of Pakistan.
[20] Therefore, based on the evidence before me, I find that there is no viable internal flight alternative for the claimants in Pakistan.
CONCLUSION
[21] Based on the totality of the evidence, I find that the claimants are Convention refugees pursuant to s. 96 of the IRPA due to their membership to a particular social group, as bisexual men. Accordingly, their claims are accepted.
——— REASONS CONCLUDED ———
1 Immigration and Refugee Protection Act, S.C.2001,c.27.
2 Exhibit 2.
3 Exhibit 1, Claim referral information from CBSA/IRCC, Certified True Copy of Passport.
4 Maldonado, Pedro Enrique Juarez v. M.C.I (F.C.A,no.A-450-79), Heald, Ryan, MacKay, November 19, 1979.
Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980]2 F.C.302(C.A.);31 N.R.34
(F.C.A.).
5 Orelien, Joseph v. M.E.I (F.C.A., no. A-993-90), Heald, Mahoney, Stone, November 22, 1991. Reported: Orelien v. Canada (Minister of Employment and Immigration) [l 992] 1 F.C. 592 (C.A); (1991), 151mm. L.R. (2d) 1 (F.C.A.).
6 Exhibit 6, pages 24-31.
7 Exhibit 6, pages 9-15.
8 Exhibit 6, pages 32-51.
9 Exhibit 6, pages 54-55.
10 Exhibit 6, pages 16-18.
11 Exhibit 6, pages 3-4, 8-9, and 52-53.
12 Exhibit 3, National Documentation Package, Pakistan, 31 January 2023, tab 1.13: DFAT Country Information
Report: Pakistan. Australia. Department of Foreign Affairs and Trade. 25 January 2022.
13 Ibid.
14 Ibid.
15 Exhibit 3, National Documentation Package, Pakistan, 3 1 January 2023, tab 6 .1: Treatment of sexual and gender
minorities by society and authorities; state protection and support services available (2017-January 2019).
Immigration and Refugee Board of Canada. 17 January 2019. PAKl 06219.E.
16 Exhibit 3, National Documentation Package, Pakistan, 3 1 January 2023, tab 6 .3: Pakistan. State-Sponsored
Homophobia 2019. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Lucas Ram6nMendos.
March 2019.
17 Exhibit 3, National Documentation Package, Pakistan, 31 January 2023, tab 6.1: Treatment of sexual and gender
minorities by society and authorities; state protection and support services available (2017-January 2019).
Immigration and Refugee Board of Canada. 17 January 2019. PAKl 06219.E.
18 National Documentation Package, Pakistan, 31 January 2023, tab6.8: Country Policy and Information Note.
Pakistan: Sexual orientation and gender identity or expression. Version 4.0. United Kingdom. Home Office. April
2022.
19 Exhibit 3, National Documentation Package, Pakistan, 31 January 2023, tab 6.2: Pakistan. Our Identities Under
Arrest: A global overview on the enforcement of laws criminalizing consensual same-sex sexual acts between adults
and diverse gender expressions. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Kellyn Botha.
15 December 2021.
20 Exhibit 3, National Documentation Package, Pakistan, 31 January 2023, tab 2.1: Pakistan. Country Reports on
Human Rights Practices for 2021. United States. Department of State. 12 April 2022.