2023 RLLR 204
Citation: 2023 RLLR 204
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2023
Panel: Katherine Beresford
Counsel for the Claimant(s): Albert Muragijimana
Country: Rwanda
RPD Number: TC3-30880
Associated RPD Number(s): N/A
ATIP Number: A-2024-01010
ATIP Pages: N/A
DECISION
[1] MEMBER: XXXX XXXX XXXX claims to be a citizen of Rwanda and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons I have considered and applied the Chairperson’s Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics.
[2] The claimant’s full allegations are found in his Basis of Claim form. In short, the claimant alleges that he fears the Rwandan government, police, and society in general, and that he faces a risk of physical harm and societal discrimination in Rwanda due to his sexual orientation as a gay man.
[3] I find that he is a Convention refugee as he has established a serious possibility of persecution on account of his membership in a particular social group, namely gay men, for the following reasons.
[4] The claimant’s identity was established on a balance of probabilities based on a certified true copy of his passport and testimony.
[5] I found the claimant to be a credible witness, and therefore believe what he has alleged in support of his claim.
[6] The claimant testified in a straightforward manner and there were no significant inconsistencies in his testimony or contradictions between his testimony and the other evidence before me that he could not reasonably explain. He provided sufficient details when asked, and he provided credible supporting evidence when it was available, including letters from both his previous partners in Rwanda, accompanied by a copy of their identity cards, a membership card from the XXXX XXXX XXXX XXXX XXXX, and pictures of him with his previous partners.
[7] The claimant’s testimony is consistent with what is contained in the letters, and I have no reason to doubt the veracity of these documents or their contents, and therefore give them full weight.
[8] Given the claimant’s credible testimony and supporting documents. I accept that he is a gay man for the reasons that follow.
[9] I find on a balance of probabilities that the claimant has established how he discovered his sexual orientation. The claimant testified about meeting JD while he was in XXXX XXXX, how their relationship started, and his decision to tell his parents. He also testified about his parents’ reaction, which was to lock him in a prayer room in a building near their main house and force him to fast for three (3) days while pastors came to pray for him.
[10] I had some concern over the fact that the claimant declared he had told his mother in his Basis of Claim form, but testified about telling his parents. When asked, the claimant testified that he wrote in his box that he told his mother because that was how the conversation started, because they were close. He testified that she immediately told his father and that they were, therefore, both involved in the initial conversation. I accept this explanation and draw no negative credibility inference from this minor discrepancy.
[11] When asked, the claimant testified that he did not tell other people about his sexual orientation, but the people at the school began to suspect that he and JD were in a relationship because they were always together. The claimant testified that he and JD would also spend a lot of time together on school holidays, and they posted pictures on social media of themselves lying in the sun without shirts on, which added to people’s suspicions.
[12] The claimant testified that one (1) day, they were late to class, and a teacher accused them of kissing, which he testified was not true, and that this accusation led to their whole school finding out about their sexual orientation. When asked about the bullying they experienced, the claimant testified about being called names, and in particular about being forced to do chores for the older boys, including washing their clothes, as they referred to him as the wife. These experiences are corroborated by a letter from JD in evidence.
[13] I have no reason to doubt the authenticity of this relation — of this letter, and therefore give it full weight in supporting the claimant’s testimony. The claimant also testified about his relationship with RN, his hesitancy to enter into that relationship, and why they choose to pursue it secretly. He spoke of how they met, how their relationship developed, and how they broke up when he moved to Canada because it was too complicated because of the distance.
[14] I find that the level of detail in his testimony is commensurate with a relationship of the duration and intensity as described. This testimony is also corroborated by a letter from RN confirming their previous relationship.
[15] I find on a balance of probabilities that the claimant was in a same-sex relationship with RN in Rwanda. I find on a balance of probabilities that the claimant has established his sexual orientation as alleged, and that the claimant was in a relationship with JD and RN.
[16] The claimant also testified about being attacked on his way home from the gym and the police arresting several men in connection with the incident. The claimant testified that the police took him to the hospital with a broken arm, and then to the police precinct. When they asked why he was being beaten, the claimant testified that he told the police that he is gay, but that after that, they seemed less interested in pursuing the case.
[17] The claimant testified that he told — he was told by S, an old schoolmate, a few days later that the police released the man who had beaten him. When asked, the claimant testified that S was aware of why he was beaten, but that he did not judge him for that. He also testified that S knew some of the men who attacked him, and thinks that they might have grown up together.
[18] I asked the claimant whether he had considered getting a letter of support from S, and he said that he had not, because he did not think that it would be relevant, as he had played such a small role. S had not witnessed anything, but rather had given him some information after the fact. He also testified that S was much younger than him, and therefore was in a much lower grade in their school, so they had not really known each other at that time, but instead had connected via social media later.
[19] I accept this explanation and draw no negative credibility inference from the claimant’s failure to provide a letter of support from S. I also note that this testimony is corroborated in the letter from RN.
[20] I accept on a balance of probabilities that the claimant was beaten by community members for being gay, and that the police stopped pursuing his attackers after they found out the motivation of the attackers.
[21] When asked whether he is part of the LGBTQI+ community in Canada, the claimant testified about meetings he attends with other members of the LGBTQ+ community in XXXX, how they talk about their experiences in their countries of origin, and how it made him realize that he is not alone in his experiences.
[22] The claimant’s participation in this community group is corroborated by his membership card. I find on a balance of probabilities that the claimant is an active member of the LGBTQI+ community in Canada, and I find that this supports his claim that he faces a subjective fear of persecution in Rwanda.
[23] Given the credible testimony and the evidence outlined above, I find that the claimant has established that he faces the subjective fear of return to Rwanda because of his sexual orientation.
[24] The documentary evidence in the National Documentation Package indicates that while same-sex sexual activity is not illegal in Rwanda, cultural and religious attitudes have led to a lack of education on the subject. It was reported that the government generally does not acknowledge the existence of LGBTQ+ population, and that religious groups have stirred up homophobia in the country. These things support the claimant’s explanation of how his family, classmates, and the administration at his high schools responded to his sexual orientation.
[25] I note specifically at Tab 6.2, which indicates that there is a strong social stigma facing gay men in Rwanda, and discrimination against LGBTQI+ persons in housing, employment, and access to government services such as healthcare is common. There were several reports of evictions, job loss, and discrimination in hiring for LGBTQI+ persons.
[26] There were a few places named in Kigali where LGBTQI+ persons could receive healthcare without stigma, but none were known to exist outside of Kigali.
[27] Tab 6.2 also quotes a Reuters article, which reports that LGBT+ Rwandans say they are often fired, evicted, labelled as satanic, or ostracized by family and friends if they come out, with violent threats forcing some to flee the country.
[28] Tab 6.2 also looks at the treatment of LGBTQI+ individuals by authorities, and notes that while members of this community cannot be charged for any crimes based on their sexual orientation or gender identity, other charges can be used to detain people of diverse SOGIESC. Specifically, sources report arrests of LGBTQI+ individuals using public morality laws. It is also reported that lawyers in Rwanda have demonstrated homophobia and refusing to take on cases so that LGBTQI+ persons would not have access to representation in the justice system.
[29] On the other hand, Item 2.1 of the NDP reports that LGBTQI+ groups conducted public activities in Kigali during 2022, including Pride festivals and a fashion show, suggesting an increase in tolerance and acceptance of LGBTQI+ persons in some parts of society.
[30] There were no reports of involuntary or coercive medical or psychological practices specifically targeting LGBTQI+ persons, but there was social pressure on individuals to conform to traditional gender norms or face ostracism from their families and societal groups.
[31] While I find that this suggests this — this suggests a slow change in attitudes towards LGBTQI+ persons, I find that this is insufficient to overcome the rest of the NDP evidence, which suggests that LGBTQI+ persons are not safe in Rwanda, and face discrimination amounting to persecution in almost all aspects of their lives.
[32] The report at Tab 2.4 of the NDP states that in practice, LGBTQI+ persons have reported facing stigma. In 2021, Human Rights Watch documented how the authorities arbitrarily detained nine (9) transgender or gay people in Kigali. Several said that police or local security officers detained them after members of the public reported seeing them with their partners and other LGBTQI+ people, or wearing women’s clothing if they were perceived to not be female. Police officers or guards accused them of being homeless, thieves, or delinquents, and held them in a room reserved for delinquent men.
[33] In summary, I find that the claimant’s allegations are well-founded and that there is more than a mere possibility that the claimant’s sexual orientation would expose him to persecution in Rwanda. The risks of societal ostracism, difficulty in securing employment, homelessness, and other related harms, such as arbitrary arrest, would amount to persecution.
[34] The claimant has alleged that the Rwandan police witnessed him being beaten, then detained some of his attackers and took him to the hospital, and then the precinct. However, when they asked him why he thought he was being attacked and he indicated that he was gay, they stopped helping him and ultimately released his attackers after a day or two (2).
[35] I note that 8.6.5 of the Guideline 9 states that the discrimination — states that decriminalization of same-sex relations, or the introduction of a new law, program, or other government action designed to improve the situation of SOGIESC individuals in a country needs to be carefully assessed to determine whether state protection is adequate at the operational level.
[36] In these cases, I am required to examine the degree of actual implementation, the effectiveness and the durability of these legislative or other improvements, in light of how state actors and general society continue to treat SOGIESC individuals.
[37] I find that in Rwanda, the decriminalization of same-sex relationships has not resulted in adequate laws protecting the community at the operational level.
[38] Item 2.1 of the NDP reports that the government did not adequately respond to reports of abuses and violence against LGBTQI+ persons. NGOs reported that LGBTQI+ individuals were afraid to report abuses to authorities, either believing authorities would not act, or were complicit in the abuses. Some reported being accused of deviant behaviour, such as drug abuse or prostitution.
[39] I find that it would be objectively unreasonable for the claimant to seek the protection of the state in light of his particular circumstances, should he need to. There are no legal protections against discrimination for gay men in Rwanda. Given that the police are complicit in the persecution of LGBTQI+ persons, and there is reportedly very limited access to justice for gay men in Rwanda, I find that there is no state protection relevant to the claimant’s particular circumstances.
[40] I have considered whether a viable internal flight alternative exists. I will refer again to Guideline 9, which indicates that 8.7.1 that it is well established in law that an IFA is not viable if a SOGIESC individual, must concealed their SOGIESC in order to live in that location.
[41] On the evidence before me, I find that there is a serious possibility of persecution throughout Rwanda as there is no safe place where you could live openly as a gay man. Therefore, there is no viable internal flight alternative for you.
[42] Based on this analysis, I conclude that you are a Convention refugee as there is a serious possibility of persecution for you throughout Rwanda as a result of your sexual orientation. Accordingly, I accept your claim, and your hearing is now concluded.
——— REASONS CONCLUDED ———