2023 RLLR 199
Citation: 2023 RLLR 199
Tribunal: Refugee Protection Division
Date of Decision: November 15, 2023
Panel: Philip Schwarz
Counsel for the Claimant(s): Ohene K Andoh
Country: Ghana
RPD Number: TC3-19917
Associated RPD Number(s): N/A
ATIP Number: A-2024-01010
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division for XXXX XXXX. You are claiming to be a citizen of Ghana and are claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act. In coming to my decision, I have considered and applied the Chairperson’s Guideline 9 on Sexual Orientation and Gender Identity and Expression and Sex Characteristics. These guidelines assist in assessing the key evidentiary elements in determining the harm individuals may face due to their sexual orientation or gender identity and history of gender related violence.
[2] Your allegations are fully set out in your Basis of Claim form. In short, you fear persecution and a risk to your life in Ghana on the basis of your sexual orientation. You fear that if you were to return, you would be persecuted by your community and the Ghanaian police. You fear you would be forced to hide your identity as a lesbian or even killed if you were to return to Ghana.
[3] I find that you would face a serious possibility of persecution in Ghana, and you are a Convention refugee on the ground of your membership in a particular social group, namely lesbians.
[4] Your personal identity as a citizen of Ghana has been established on a balance of probabilities by your testimony and a copy of your passport found in Exhibit 1.
[5] I find that you have a nexus on a balance of probabilities to the Convention based on your membership to a particular social group due to your sexual orientation as a lesbian. The evidence in this case supports that you have been persecuted because of your sexual orientation and would be if you were to return to Ghana.
[6] In terms of your general credibility, I found you to be a credible witness and therefore believe what you have alleged in your oral testimony and Basis of Claim form. Your evidence was detailed and consistent both internally and with your documentation. Throughout the hearing, you were articulate, responsive, and forthright. You were able to elaborate on your narrative and gave explanations to the questions that I asked. There were no material inconsistencies, contradictions, or omissions that were not reasonably explained, such that the presumption of truthfulness could be rebutted.
[7] You spoke in detail about how you first discovered your sexual orientation when you were XXXX years old with another older girl in your community who tutored you in math and science. You explained how you had grown up hearing about LGBTQ individuals being beaten and arrested because of their sexual orientation and how this frightened you into keeping your sexual attraction for women a secret. You described how it was difficult for you to keep this part of your identity to yourself, but you refused to talk to anybody about it to try to hide your sexual orientation. Based on this credible testimony, I find on a balance of probabilities that you have established how you discovered your sexual orientation in Ghana.
[8] You spoke incredible detail about the two (2) relationships you had in Ghana with women. You explained how you met each one and how your relationships began. You were able to spontaneously describe what you did together or what you liked about each one and how they were different from one another. Based on this straightforward and detailed testimony, I find on a balance of probabilities that you have established that you have been previously involved in same sex sexual relationships.
[9] In the hearing, you were also able to spontaneously describe the incident that took place, your most recent partner’s home, which alerted neighbors and members of your community to your same sex relationship and sexual orientation. Based on your detailed and credible testimony, I find that you have established on a balance of probabilities that members of your community are aware and unsupportive of your sexual orientation.
[10] You further described how your life has changed now that you have been able to meet diverse individuals with similar and different sexual orientations through the 519 and how you feel that this is where you belong. You testified that you were gaining confidence when you meet new people to talk about your sexual orientation. Based on this spontaneous and credible testimony, I find on a balance of probabilities –
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[11] MEMBER: — that you continue to explore your identity as a lesbian and engage in activities in the LGBTQ community in Canada.
[12] According to section 7.1 of the Chairperson’s Guidelines 9, an individual’s testimony may in some cases be the only evidence of their LGBTQ. You testified about your relationship with your immediate family and how you no longer communicate with each one since they learned about your sexual orientation. I find that this explains the lack of supporting evidence from immediate family members. However, in spite of this, I note that your claim is nevertheless supported by personalized evidence found in Exhibits 5 and 6. This evidence includes a support letter from the uncle who supported you while you were in hiding and trying to free Ghana, a membership letter from the 519, pictures of you at Toronto Pride and other events hosted by the 519, as well as pictures of you with your former partner. They corroborate that you have been in same sex relationships in Ghana, that this led you to go into hiding for a period of time and that you were currently involved in the LGBTQ community in Canada.
[13] The documents do not have any apparent issues on their face and contain a level of detail one (1) would expect of said documents. There are no inconsistencies or contradictions between the support letter and your testimony. I therefore assign them significant weight in corroborating your core allegations. Accordingly, on the whole, in terms of your general credibility, I found you to be a credible witness and therefore accept what you have alleged in your oral testimony and Basis of Claim form. The evidence establishes on a balance of probabilities that you are a lesbian and have experienced harm because of this. I find that your subjective fear is established by your credible and corroborated testimony.
[14] I also find that your allegations are supported by the documentary evidence, namely the National Documentation Package, or NDP for Ghana, which is found at Exhibit 3 and dated August 31st, 2023. According to Item 2.1 of the NDP, which is the US Department of State Country Report on Human Rights Practices, the law in Ghana does not explicitly prohibit discrimination based on sexual orientation and gender identity. However, the law does criminalize the act of unnatural carnal knowledge, which is defined as sexual intercourse with a person in an unnatural manner. This offence covers persons engaged in same sex relationships and mentions reports of police violence against LGBTQ persons. Furthermore, LGBTQ persons face further widespread discrimination in education and employment. Stigma and discrimination made it difficult for them to find work and become productive members of the community.
[15] According to a 2018 survey, approximately 60 percent of citizens strongly disagree or disagree that LGBTQ persons deserve equal treatment with heterosexuals. Item 6.1 of the NDP goes on to further report that although the criminalisation of adult consensual same sex acts in the country rarely leads to prosecution, it does contribute to a climate of frequent discrimination and violence against LGBTQ2S+ people, both in public and in family settings. The report indicates that violence and responses to these incidents of violence have been profusely recorded in Ghana in the last few years. Item 6.2 states that homophobia is very common in Ghana, LGBTQ individuals and those supporting LGBTQ human rights are targets of homophobia. Disdain, and resentment against the LGBTQ community have grown in recent years and often lead to violence. Item 6.4 further describes how politicians are influenced by religious anti-LGBTQ sentiments. The director for an NGO in Ghana was further quoted saying, “You cannot be open about your sexual orientation and be protected by the state. The reason is because our leadership is very religious. The people behave due to their religious ideologies instead of common sense or science.”
[16] Based on your credible testimony as well as the objective evidence, I find that you have a well-founded fear of persecution in Ghana, and I accept that you would be targeted by the state and community agents because of your sexual orientation.
[17] In terms of state protection in this case, the state is one of the agents of persecution and has control over the entire country. According to Chairperson’s Guideline 9 , the existence of laws criminalizing non-conforming sexual orientation, sexual behaviors, gender identities, or expressions, or sex characteristics, and the enforcement of these laws by the state may be evidence that state protection is not adequate. I find on a balance of probabilities that the laws against LGBTQ individuals in Ghana, as referenced in the NDP, indicate that you may not have adequate state protection in your case as a lesbian. I find that based on your sexual orientation, as well as the objective evidence described earlier that establishes the mistreatment of LGBTQ individuals by the Ghanaian state. You have rebutted the presumption of state protection with clear and convincing evidence. I therefore find that adequate protection would not be available to you in Ghana.
[18] I have also considered whether a viable internal flight alternative or IFA exists for you in Ghana. The country documentation evidence referred to above indicates that the situation for LGBTQ individuals and circumstances like yours is the same throughout the country, and that you would face a serious possibility of persecution or risk to your life anywhere in Ghana based on your sexual orientation. As indicated in the Chairperson’s Guideline 9 is well established in law that an IFA is not viable if a SOGIESC individuals must conceal their SOGIESC in order to live in that location because it would be a denial of their human rights. I find that on a balance of probabilities, this would be the case in your situation, and you would be forced to conceal your sexual orientation if you were to relocate in Ghana. As the state is one of the agents of persecution, I find that they could find you anywhere in the country. As such, I find that there is no viable internal flight alternative for you in Ghana.
[19] In conclusion, based on the totality of the evidence in my analysis above, I find that you have established a serious possibility of persecution on a Convention ground in Ghana. I therefore find you to be a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act, and I accept your claim.
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