2023 RLLR 202

Citation: 2023 RLLR 202
Tribunal: Refugee Protection Division
Date of Decision: December 5, 2023
Panel: Ayoni Shaibu
Counsel for the Claimant(s): Hart A Kaminker
Country: Pakistan
RPD Number: TC3-24156
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 XXXX, you allege you are a citizen of Pakistan, and you are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. 

[2] I have considered and applied the Chairperson’s Guideline 9, regarding proceedings before the Board involving sexual orientation, gender identity and expression, and sex characteristics in the hearing and the determination of this claim. I have also considered your testimony and that of your witness, your partner, as well as the other documents which you have provided. And I am ready to render my decision orally. The written decision will come to you in the mail shortly. 

[3] The full details of the allegations are set out in your Basis of Claim form as amended, found at Exhibit 2 and Exhibit 2.1. In summary, you allege fear of harm in Pakistan from the — one (1) moment. Tehreek-e-Labbaik Pakistan, the TLP, and the society generally as well as the authorities due to your sexual orientation as a homosexual. 

[4] You allege that you realized your sexual orientation while you were studying in grade XXXX in an all-boys’ school and you became very close to one (1) of your classmates in grade XXXX, with whom you shared watching porn videos. You realize he was not — he was only attracted to females, and you did not express your sexual feelings to him. 

[5] You allege that you registered for an academy to help you with your school in XXXX — your XXXX in XXXX, and it was there that you met your current partner after that. You allege you became friends and your friendship evolved into a sexual one (1). You alleged that in XXXX 2022, while you have been intimate with your partner in a mutual friend’s house, neighbours came knocking at the door, and your sexual orientation was discovered. 

[6] You were detained at the police station with the help of XXXX’s father, who secured your release. You were able to hide in Lahore until XXXX 2022, when you left the country on study visas obtained with the help of XXXX’s father, and with the help of an agent arranged by XXXX’s father. You allege that while in Lahore, you heard that a fatwa had been issued against you, and it was for this reason that you left Pakistan, and you feared returning. 

DETERMINATION 

[7] For the reasons that follow, I find you are a Convention refugee pursuant to section 96 of the Act, as there is this serious possibility of persecution should you return to Pakistan, on account of your sexual orientation as a homosexual. 

Identity 

[8] I find your identity as a citizen of Pakistan is established on a balance of probabilities by oral testimony, and your seized Pakistani passport found that Exhibit 1. 

Nexus 

[9] I find that a link between your alleged fear of harm on at least one (1) of the Convention grounds. In this case, your membership in a particular social group is your sexual orientation as a homosexual. I therefore assessed your claim pursuant to section 96 of the Act.

Credibility

Subjective Fear 

[10] Pursuant to the Maldonado principle, in refugee claims, when a claimant swears to the truth of the allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness. 

[11] In this case, you testified, and you also called a witness on Counsel’s oral application, which was allowed by the Board. You and your witness, who you have testified is your current partner — you both testified you are partners. I find that you testified in a straightforward manner, and your testimony was consistent with the documents which I provided, as well as your Basis of Claim form as amended. 

[12] You were able to answer — both of you were able to answer questions that I put to you, and you were also able to provide details where requested. I did not observe any material or relevant inconsistencies in your testimony, or contradictions between your testimonies and the other evidence, which I submitted to the Board. 

[13] I believe what you have alleged in your oral testimony on aw balance of probabilities. And this conclusion is reached based on your oral testimony and that of your witness, who is your current partner — your partner also from Pakistan, with whom you arrived in Canada together. You both testified about your relationship in a in an open, straightforward manner, sincere manner. 

[14] You also testified about how you met each other and how the relationship evolved. You testified about — one (1) second. How you spend time together, including spending time at your mutual friend’s residence until the incident of XXXX 2022, which prompted your hiding in Lahore. You also testified about the comments to know about the fatwa that was issued against you by the TLP, which prompted your decision to leave Pakistan. 

[15] In support of your allegations, you provided documents, which are found at Exhibit 5, and this includes the fatwa which was issued against you and your partner — pictures of the fatwa affixed to the mosque. There is the affidavit from your mother, who speaks to receiving a call from the police, and your detention, as well as the fatwa that was issued against you. There is also an affidavit from your neighbour as well that speaks to witnessing the protests by the TLP and members of the society, and the fatwa being affixed on the wall. As well, the affidavit from a friend — the friend that accommodated you, your father’s friend that accommodated you in Lahore until XXXX 2022. 

[16] In terms of your relationship, there is the CIBC joint bank account for both of you. There is also the joint proof of assistance from Toronto Works for both of you as well. And there is The 519 residence — reference letter confirming your membership. 

[17] I have assigned full weight to these documents in the absence of concerns about their authenticity. And given that they corroborate your core allegations about your sexual orientation. So, I accept on a balance of probabilities that you have established your profile as a homosexual in Pakistan, and that you continue to express your sexual orientation in Canada. I find your subjective fear of persecution is established. 

[18] I do not draw a negative inference from the inconsistencies in your visa application forms found at Exhibit 5 — Exhibit 3. Give me one (1) second. Found at Exhibit 4, given your testimony that the visa was obtained for the purpose of aiding your flight from Pakistan, that you did not have any knowledge of the information that went into the application. 

Objective Basis 

[19] I find the National Documentation Package for Pakistan, found at Exhibit 3, corroborates your allegations of fear of harm based on your sexual orientation. Item 2.1, the United States  Department of State Country Reports on Human Rights Practices for 2022 indicates that consensual same-sex sexual conduct is a criminal offence and carries a penalty on conviction ranging from a fine to two (2) years to life imprisonment, or both. 

[20] LGBTQI+ persons rarely reveal their sexual orientation or gender identity in the public sphere, and community — even though there are communities of openly transgender persons, the NDP indicates that they were marginalized and frequently targets of violence and harassment. There were also credible reports of crimes involving violence, or threats of violence, targeting members of the LGBTQI community. 

[21] The objective evidence indicates that these violence or threats is common because of the existence of use of laws criminalizing consensual same-sexual conduct between adults. The same objective evidence identified — point to reports that societal, familial, religious, and community discrimination reportedly means that most LGBTQI+ individuals do not self-identify. 

[22] It also reports that crimes often went unreported and police generally took little action when they did receive reports of violence, discrimination, and stigma against members of the LGBTQI+ persons. 

[23] Item 1.3 of the objective evidence speaks to societal view about homosexuality in Pakistan, and describes it as a taboo, such that people coming out as gay or lesbian in Pakistan are likely to face ostracism from their family, forced into heterosexual marriage, discrimination, bullying, and violence. 

[24] That item of the objective evidence reports that gay and lesbian people in Pakistan face a high risk of official and society discrimination as well. Item 1.3 speaks to the TLP and their profile as an influential Sunni extremist political party and sectarian religious movement whose goal is to punish blasphemers and pursuing the imposition of Sharia law throughout Pakistan. The objective evidence indicates that the government has capitulated, agreeing to reverse the ban on this group, and committing to acceding to their request. 

[25] Based on the objective evidence, I am satisfied on a balance of probabilities that your subjective fear of persecution in Pakistan based on your sexual orientation is well-founded. 

State Protection 

[26] I have considered Item 6.18, which indicates that seeking police protection on the grounds of sexual orientation is not possible in Pakistan. And that is — having someone’s sexual orientation or gender identity revealed may increase risk and threats to safety and life of an individual. 

[27] Based on your testimony, regarding the treatment where you were detained by the authorities, I find — and as well as a fatwa that has been issued against you, I find that adequate state protection would not reasonably be forthcoming to you on account of your sexual orientation, and that presumption of state protection has been rebutted. 

Internal Flight Alternative 

[28] I have considered whether an internal flight alternative exist for you in Pakistan. And based on the objective evidence, I found that you do not have a viable internal flight alternative, considering that the fatwa has been issued against you, and the general perception in the society which regards homosexuality as a taboo, including religious perception as well. I find you do not have a viable internal flight alternative in Pakistan where you can freely and safely express your sexual orientation as an homosexual. 

CONCLUSION 

[29] Based on the totality of the evidence, I find you are a Convention refugee pursuant to section 96 of the Act, and I accept to your claim. I wish you all the best in Canada. 

——— REASONS CONCLUDED ———