2023 RLLR 189
Citation: 2023 RLLR 189
Tribunal: Refugee Protection Division
Date of Decision: April 11, 2023
Panel: Warren Chin
Counsel for the Claimant(s): Ian Robert Joseph Wong
Country: Pakistan
RPD Number: TC2-26424
Associated RPD Number(s): N/A
ATIP Number: A-2024-01010
ATIP Pages: N/A
DECISION
[1] MEMBER: We are back on the record. All parties are present. This is a decision for the claimant XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. File number TC2-26424. Hearing date is April the 11th, 2023, and it is Warren Chin rendering the decision. I have considered your testimony and the other evidence before me, and I am ready to render my decision orally. The claimant is claiming to be a citizen of Pakistan and is claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act. The
DETERMINATION
[2] I find that the claimant is a Convention refugee on the grounds of her sexual orientation.
ALLEGATIONS
[3] The claimant’s allegations are found in her Basis of Claim form and related narrative. In summary, the claimant alleges persecution from the government, her family and the general public due to her sexual orientation as a lesbian.
Identity
[4] The claimant’s identity has been established on a balance of probabilities as a national of Pakistan by her testimony and the supporting documents, specifically, the certified copies of her passport, which are in Exhibit 1.
Credibility
[5] I do find this claimant to be an overall credible witness and I therefore believe what she has alleged in support of her claim. She testified in a straightforward manner. She spoke naturally, she did not embellish her story. She gave spontaneous details and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me, which have not been explained in a satisfactory manner. The claim is also supported by the documentary evidence. In support of her claims, she provided an affidavit from the claimant’s previous same-sex partner in South Korea and another partner in Pakistan. There are photographs of the claimant and her same-sex partners. There is a court document indicating that her marriage has been dissolved. The letter from the 519 which is LGBTQ support group in Canada and a letter from a friend in Canada confirming her sexual orientation. And after reviewing these documents I find that they materially conform to the claimant’s central allegations. On the basis of this evidence combined with her testimony, I accept the claimant’s allegations, in particular I find that the claimant is — has established on a balance of probabilities that she is a lesbian which would subject her to serious harm or persecution if she were to be discovered in Pakistan on account of the sexual orientation.
Objective Basis
[6] I also find that the objective country condition supports the claimant’s allegations. There is subjective evidence that indicates that it is not uncommon for Pakistani residents or that are non-heterosexual to live a dual lie. According to Item 2.1 of Exhibit 3, which is the United States Department of State report, it indicates that crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender or intersex person can occur by non-state actors as well as the use of laws which criminalize consensual same-sex conduct between adults, and that there are significant human rights issues in this respect. Violence and discrimination among LGBTQ persons continued throughout 2021 and crimes often go unreported, and police generally take little action when they do receive such reports. The LGBTQ community in Pakistan operates behind closed doors. Sexual minorities cannot live openly because there is a clear risk of discrimination, violence, social boycotting and degradation in social class and rank. I also note the objective evidence indicates that there are state sanctions against homosexuality in Pakistan.
[7] The objective evidence indicates that the Pakistan penal code does not specifically refer to homosexuality but deals with this in its description of definition of actions that “go against the natural order”. Specifically, section 377 states that whoever voluntarily has carnal intercourse, against the order of nature with any man, woman or animal shall be punished with imprisonment for life or with imprisonment of not less than two (2) years and not more than 10 years and may also be liable for a fine. This definition usually reads as prohibiting non-heterosexual activity. There are also grave consequences in Sharia law, that is evidenced by the objective evidence before me. There are no laws to protect against discrimination on the basis of sexual orientation and seeking police protection on the grounds of sexual orientation is not possible. When one’s (1) sexual orientation is revealed, it leads to an increased risk and threat to safety and lives. The LGBTQ persons face significant hostility in Pakistani society, including harassment, acts of violence when they disclose their sexual orientation or gender identity. On the basis of this objective evidence, I find that the claimant’s subjective fear has as an objective basis.
State Protection
[8] The claimant’s agent of persecution includes the state and general society, and the objective evidence indicates that most hate crimes against LGBTQ persons in Pakistan go unreported or out of the public spotlight. Indicates that when gay men or lesbians are murdered, the family does not often report the motive of the crime in order not to dishonour the family or they simply state that it was an honour killing or suicide. USHDR report in 2018 indicates that crimes often go and reported. Generally, when they are reported, police generally take little action, and during the recent years there have been reported cases of individuals who are arrested for crimes against members of sexual minorities. The objective evidence similarly indicates that there are obstacles for sexual and gender minorities to report incidents to the police. It states that having one (1) sexual orientation or gender identity revealed might increase the risk and threats that one (1) may be exposed to in Pakistan. At the state level, the Pakistani government has been vocal, at the international level about human rights and various UN meetings in respect of its Pakistani’s official’s refusal to embrace SOGIE — or persons with diverse SOGIE in respect of the various human rights claims. So, given this objective evidence, I find that it is objectively unreasonable for the claimant to seek out any further protection and that state protection in this instance cannot be seen as being reasonably forthcoming. I, therefore, find providing the presumption of state protection is rebutted in this case with clear and convincing evidence.
Internal Flight Alternative
[9] Similarly, given that the agent of persecution includes the state, and that the claimant would be — it is probable that the claimant would receive similar treatment throughout Pakistan even if she were to relocate. I find that the claimant’s internal flight alternative analysis fails at the first prong of the test and therefore a viable internal flight alternative is not available to this claimant.
[10] In conclusion, I, therefore, find on a balance of probabilities that the claimant would face a serious possibility of persecution if returned to Pakistan an account of her sexual orientation and therefore, on the basis of the totality of the evidence, I accept her claim pursuant to section 96 and I find that she is a Convention refugee. Ma’am, your claim is accepted.
——— REASONS CONCLUDED ———