2023 RLLR 197

Citation: 2023 RLLR 197
Tribunal: Refugee Protection Division
Date of Decision: October 5, 2023
Panel: R. Jackson
Counsel for the Claimant(s): Ibrahima Bocar Thiam
Country: Senegal
RPD Number: TC3-16980
Associated RPD Number(s): N/A
ATIP Number: A-2024-01010
ATIP Pages: N/A

DECISION

[1] MEMBER: These are the reasons for the decision in the claim of XXXX XXXX, who claims to be a citizen of Senegal 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 Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics, that is SOGIESC for short. I also considered and applied the Chairperson’s Guidelines on women refugee claimants fearing gender related persecution. I took care not to ask any unnecessary questions that might bring up traumatic memories. I considered the various factors may affect a claimant’s ability to provide evidence such as the sensitive nature of the allegations, cross-cultural misunderstandings, social, religious, and economic differences. These Guidelines also state that gender is an innate characteristic, and it may form a particular social group, and I considered whether this applies to the circumstances of the claimant as well as any intersectional factors. 

[3] The claimant alleges that she was sent to the United States at the age of XXXX because her parents had arranged a marriage for her, and she was not given a choice. She also alleges that she is a lesbian, and she fears she will be forced to remarry or be killed or jailed upon her return to Senegal. The claimant is a Convention refugee as she has established a serious possibility of persecution on account of her membership in a particular social group of lesbians for the following reasons. 

[4] The claimant’s identity was established based on her passport. 

[5] The claimant testified in a straightforward manner and provided sufficient details and explanations as required at the hearing. There were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me, which have not been satisfactorily explained. She provided relevant supporting evidence such as witness testimony from her same-sex partner, a letter of support from another witness, and photos of the claimant and her partner. I found the claimant to be a credible witness and the supporting evidence and witness testimony to be generally credible as well. Therefore, I accept the allegation that the claimant is a lesbian and that her family is violently opposed to her sexual orientation and that her father has threatened to force her to remarry upon her return to Senegal. 

[6] Some of the references in the objective documentation which are pertinent to the claim, will refer to lesbians or bisexuals. The claimant initially wrote in her Basis of Claim that she was bisexual, but it was explained at the hearing that she wanted to acknowledge the fact that she had previously been married to men. But the claimant has now embraced the term lesbian, and that is what we are using now. 

[7] So, because — so, Item 2.1 of the NDP, the National Documentation Package for Senegal, says that among serious human rights issues in the country were the following problems that are relevant to this claim, but other things were mentioned. So, a lack of investigation and accountability for gender-based violence, including but not limited to domestic and intimate partner violence, child early and forced marriage and female genital mutilation, trafficking in persons, crimes involving violence or threats of violence against lesbian, gay, bisexual, transgender, queer, or intersex persons, and existence or use of laws criminalizing consensual same-sex sexual conduct between adults. 

[8] The law prohibits rape but does not address the gender of survivors. The law also does not address spousal rape. Offenders face 10 to 20 years in prison with possible life sentences in aggravated situations. Experts noted the need for the government to train more gynecologists and psychologists to assist survivors and raise awareness of the law among key actors in society, including police, judges, religious leaders, and media. 

[9] The government did not fully enforce existing laws, particularly when violence occurred within families. Although domestic violence that causes lasting injuries is punishable with a prison sentence and life imprisonment for murder, police usually did not intervene in domestic disputes. Several women’s groups and the Committee to Combat Violence Against Women and Children continue to report a rise in violence against women. NGOs noted the failure of some judges to apply domestic violence laws, and there were cases when judges claimed there was lack of adequate evidence, so they gave more lenient sentences. 

[10] NGOs also noted the government’s failure to permit them to bring suits on the behalf of survivors of domestic violence and the lack of shield laws for rape survivors. The number of incidents of domestic violence, which many citizens considered a normal part of life, were much higher than the number of cases reported. The Ministry of Justice is responsible for combating domestic violence, but it did not undertake any programs to address rape and domestic violence. 

[11] Item 5.2 of the NDP is a report of the United Nations Human Rights Council and it is about a decade old. But it does report that women — that violence against women and girls is one (1) of the foremost social problems in Senegal, taking the form of domestic violence, abuse, exploitation, sexual violence, female genital mutilation, and forced marriage. Moreover, they all deplored the severe shortage of all of the people who spoke up for this report, deplored the severe shortage of statistics, and disaggregated data on this issue, and stressed the alarming number of cases of rape, incest, sexual harassment, and domestic violence, verbal, psychological, physical, and sexual, unanimously recognizing that violence against women is a serious and widespread problem that requires urgent action at all levels. Also, lesbian women suffered from considerable violence, stigmatization, and exclusion, even within civil society organizations involved in the promotion of gender equality, and lesbians do not at all feel supported in their struggle. 

[12] Item 5.3 of the NDP reports that the UN is deeply concerned by the continued existence of forced marriages in Senegal, despite the practice being technically illegal. The report states that although it is more prevalent in rural areas, it is also a reality for some educated women living in urban areas. In summary, the objective evidence indicates that the claimant’s allegation of risk — allegations of risk in Senegal due to her gender and sexual orientation are well-founded. NDP Item 5.16 reports that women continue to face multiple barriers to obtaining access to justice owing to the following, limited access to legal aid and support of disadvantaged groups of women, including rural women, women living in poverty, women with disabilities, lesbian, bisexual, transgender, and intersex women, and women who are victims of sexual violence. Also, there are socio-cultural barriers such as illiteracy, stigmatization of victims, and stigmatization of women fighting for their rights, and that women may face problems because of all this gaining access to justice. There are other factors also that are involved, but those are most relevant to this situation. 

[13] So, I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances. And you know, obviously, since there are laws against being lesbian or same-sex sexual activity in Senegal. 

[14] I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Senegal. According to NDP Item 6.2, which cites various sources, people belonging to sexual minorities find themselves in a very hostile environment. The same researcher explained that there is a lot of physical violence against men and sexual violence towards women. Similarly, the vast majority of people belonging to sexual minorities live in insecurity and are subject to recurrent violations of their most basic rights by authorities and their fellow citizens. So, therefore, there is nowhere in the country where you could safely live openly as a lesbian. 

[15] Based on this analysis, I conclude that you are a Convention refugee. Accordingly, I accept your claim.

——— REASONS CONCLUDED ———