2023 RLLR 210
Citation: 2023 RLLR 210
Tribunal: Refugee Protection Division
Date of Decision: December 19, 2023
Panel: Osehise Odigie
Counsel for the Claimant(s): N/A
Country: Rwanda
RPD Number: VC3-07874
Associated RPD Number(s): N/A
ATIP Number: A-2024-01010
ATIP Pages: N/A
DECISION
[1] MEMBER: Just before I read the decision, I’d like to say that I’ve accepted your claim for refugee protection, okay? So that’s a positive, so I’d like to say welcome to Canada.
[2] CLAIMANT: Thank you.
[3] MEMBER: That’s okay, that’s okay. That’s okay, I hope you’re able to live your life in Canada and be safe and just have the freedom to be who you are, okay?
[4] CLAIMANT: Yes.
[5] MEMBER: All right, I’d like to put yourself on mute. So this is the decision of the Refugee Protection Division in the claim of XXXX XXXX, a citizen of Rwanda, who is seeking refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act.
[6] I have considered your testimony, your Basis of Claim and your National Documentation Package, another document in this case, and I’m ready to render my decision.
[7] I have considered and I have applied the Chairperson’s Guideline 9, Decisions Before the Immigration and Refugee Board Involving Sexual Orientation, Gender Identity and Expression and Sexual Characteristics, which was updated in December 2021.
[8] I have also considered and applied the Chairperson’s Guideline 4, which is Gender Considerations in Proceedings Before the Immigration and Refugee Board, which offers guidance in proceedings and decision-making involving gender considerations which includes forms and impact on gender and equality, discrimination and gender-based violence.
DETERMINATION
[9] I find that you have established that you’re a Convention refugee pursuant to section 96 of the Act for the reasons that follow.
ALLEGATION
[10] You’re a XXXX-year old woman who fears her return to Rwanda because you fear persecution due to your sexual orientation as a lesbian woman. You stated that you always knew that you were a lesbian, but you became aware while in school, in high school. And that while you were at XXXX XXXX you met someone called XXXX (ph) and you became friends and you eventually started dating.
[11] In XXXX 2021, there were rumours about your relationship which eventually led to your suspension from the school. Your father found out your sexual orientation after going through your phone, and you were physically assaulted. You were sent to Dubai for over one (1) year, and your father stated that the only condition you would return would be as a married woman to a man with children. Your mother eventually understood, and you decided to apply for your visa to come to Canada. To finalize your visa you needed to return to Rwanda, and you informed your father that you needed to complete paperwork. You were beaten by your father after he found out your plans and you tried to report the violence to the police. But the police returned with the summons after your father informed them of your sexual orientation. You were detained four (4) days, and then you were sent to rehabilitation centre.
[12] During this time your visa to Canada was issued. Your mother had to pay a bribe and you were released, and you left for Canada in XXXX 2023, and you immediately made a claim.
[13] You fear your family, particularly your father. You fear the community and the society, and you believe you will be killed because of your sexual orientation. You state that you cannot return to Rwanda because it’s not safe due to your sexual orientation.
Identity
[14] Your identity has been established on the balance of probabilities by your testimony and a copy of your passport as a national of Rwanda.
ANALYSIS
[15] I’ll speak to credibility and well-founded fear of persecution. Now when a claimant swears to the truth of allegations, this creates a presumption that those allegations are true unless there’s reason to doubt their truthfulness. In this case I have found no reason to doubt your truthfulness. You have testified in a straightforward and honest manner, you did not embellish or elaborate, and I find that you’re a credible witness today. You testified that you knew that you liked women, but you know from a home that you did not really talk about these things. (sic) You testified that you dated a girl while you were at XXXX XXXX for two (2) years, but the relationship ended after you were suspended from school.
[16] You testified that you were sent to Dubai because it was a Muslim country, this was to deter you from being with women. And then upon your return you were beaten by your father for returning to Rwanda. You testified that you reported to the police, however, you were detained instead for four (4) days, and then you were sent to a rehabilitation centre from XXXX to XXXX 2023, until you were released with the help of your mother. You have experienced beating and discrimination because of your orientation as a lesbian woman.
[17] I have heard your testimony and I have considered all of the evidence. I find that, you know, you’re a credible witness and I accept your evidence. I find that you’re a lesbian woman. I further find that you have experienced gender-based violence in the form of physical assaults because of your orientation. I do not find that there’s any reason to doubt your testimony. There are no significant inconsistencies or unexplained omission in your testimony and the evidence that you have provided.
[18] As Guideline 9 states, there’s no requirement for corroborative documents and, particularly, in the claims involving SOGIESC, such as document may simply not be available. But in your case, you have provided a letter of support from your mother, who you say is now aware of your sexual orientation. And that letter states the events that happened in Rwanda, as well as your detention and the assaults by the police due to your sexual orientation. You have also submitted a letter of suspension from XXXX XXXX. I find that those are reliable documents. In considering all of the evidence I find that you, as you have told me, you’re a lesbian woman and that you are attracted to women and not men.
[19] I have considered all of this evidence and I find that there’s a nexus, or a connection between your persecution as a lesbian woman in Rwanda as a particular social group. And so based on the totality of the evidence that is before me, I find that you have established a nexus to a Convention ground. Furthermore, I find below that you’ll face more than mere possibility of persecution if you were to go back to Rwanda today. I accept your testimony. I accept that you are afraid to return, and I find that you have a subjective fear.
[20] I have found that your fear relates to your SOGIESC profile and also your gender. However, I will focus my analysis on your SOGIESC profile. I will speak to the objective basis of your claim.
[21] I find that the country condition evidence supports your subjective fear as being objectively well-founded. The objective evidence in the National Documentation Package, which I will call the NDP going forward, for Rwanda dated October 31, 2023, is overwhelming regarding persecution and ill-treatment of members of the LGBTQI community which includes lesbian women such as yourself.
[22] Guideline 9 states best, a person does not need to have already individually suffered persecution treatment to have a well-founded fear of persecution. I note that you, yourself, you have already suffered persecutory treatment from your father, and from society. You have been suspended from school, you have been beaten and ostracised by your family, particularly your father and society. Considering all the circumstance, this is clearly persecutory.
[23] A Response to Information Request on the treatment of LGBTQI individuals found at NDP 6.2 states that LGBTQ individuals in Rwanda face stigmatization and discrimination from all corners of the Rwandan society, including their families, local communities, religious organization and state and local authorities. According to this report, LGBTQ Rwandans whose sexual orientation is discovered risk being fired from their jobs, evicted from their homes, disowned by their families or labelled as satanic by their families and community, as well as risking physical assaults by Rwandan citizens and the police.
[24] The Human Rights Watch from September 2021 at NDP 6.5 confirms that state abuse of the LGBTQ community is ongoing. That report states that recent cases of Rwanda has been arbitrarily arrested, detained for their actual and perceived sexual orientation. And then during detention, LGBTQ Rwandans were subjected to physical abuse, they were deprived of adequate food and water and kept in overcrowded, unsanitary and even life-threatening conditions for days, or even weeks at a time. You were detained, you were tortured because of your sexual orientation.
[25] The United States Department of Health at tab 2.1 reports that the government did not adequately respond to reports of abuses and violence against LGBTQI persons. NGO’s reported that many LGBTQI individuals were afraid to report abuses to authorities, either believing authorities will not take actions, or they will be complicit in the abuses. These reports are consistent with your testimony of assault and discrimination from your family and society, as well as the police taking your report and eventually arresting you and detaining you. LGBTQI persons experience a climate of intimidation, of stigma, and discrimination which may exclude them from the society, public service, and job opportunity. However, victims rarely reported such crimes to the police in part because of fear of being outed is a barrier of reporting abuse.
[26] In summary, the NDP indicates a significant homophobia in Rwanda, including strongly homophobic rhetoric from the state itself, and harassment and discrimination from state authorities. Societal attitudes in Rwanda were that of widespread intolerance of LGBTQ individuals. You’re a lesbian woman in a deeply traditional society. As a result of the objective evidence before me, including the above-mentioned items, I find that you have a well-founded fear of persecution from both the government actors, your family, and particularly your father and members of the community if you were to return to Rwanda.
State Protection
[27] I have considered whether there’s adequate state protection available to you in Rwanda and I conclude that there’s not. A state is presumed capable of protecting its citizens and to rebut this presumption a claimant must establish, on a balance of probabilities, with clear and convincing evidence, that their state protection is inadequate. I find that you will not receive adequate state protection. You testified that you tried to make a police report but instead you were arrested and detained because you were outed by your father. This is due to your sexual orientation. Reports state that the laws do not explicitly criminalize consensual same-sex relations. Other laws, including laws on more immoral behaviour and delinquents are used specifically to target LGBTQI SOGIESC individuals.
[28] NDP 2.1 states that the law prohibits gender discrimination but does not explicitly recognize or protect individuals on the basis of their sexual orientation, gender identity or expression of sexual characteristics. There was a significant discrimination against LGBTQ persons, and the law does not recognize LGBTQ individuals, couples or their families. The law does not explicitly prohibit discrimination against LBBTQ+ persons in housing, employment, nationality laws or access to government services. The report is also clear that the authorities will deny protection to LGBTQI persons, SOGIESC individuals, because of their identity and as a result SOGIESC persons are not safe reporting crimes, even if those crimes are not necessarily connected to their identity. Despite the lack of criminalization, I find that you would not receive adequate practical state protection either from the community or from the local authorities, from the police who, you know, have, as you have testified, did not take action about your report but instead arrested you and detained you because of your orientation.
[29] Guideline 9 states that evidence about the availability of state protection for SOGIESC individuals in some countries can be scarce or non-existent. This scarcity may be due to the stigmatization of SOGIESC individuals in any given country. On a consequent of the report saying a few of reports and abuses to authorities by individuals, all of which indicates a lack of state protection. In your case, I find that it would be objectively unsafe for you to seek state protection in Rwanda because it is in part the state that you fear due to a (inaudible) of persecution and persecution of sexual minorities. I, therefore, find that there’s no state protection available to you in your particular circumstance.
Internal Flight Alternative
[30] With respect to Internal Flight Alternative, whether you’re currently safely in another part of Rwanda, the evidence before me indicates that SOGIESC individuals are persecuted throughout Rwanda. I find that you do not have a viable Internal Flight Alternative. All of the information about the conditions faced by SOGIESC individuals in Rwanda, in general, is, is general to Rwanda, as a whole, as a country. There is no suggestion in the evidence that it’s a particular region or a place in Rwanda where SOGIESC individuals are more free to live by themselves and as themselves. Much of the information comes from Kigali, the capital, and presumably the most metropolitan, most cosmopolitan, most progressive part of the country where you were born, and you lived before moving to Canada. And the evidence is consistent that SOCIESC individuals in Kigali, the most cosmopolitan part of the country still face persecution. You would not be able to relocate to another part of Rwanda and be able to live freely and safely as yourself.
[31] NDP 6.6 says that lesbians equally face discriminations when their identities known. As indicated in the Chairperson’s Guideline 9, it is well established in law that an IFA is not viable. If a SOGIESC individual must conceal their SOGIESC identity in order to live in that location because it would be a denier of human rights.
[32] I find that it is not objectively safe in all circumstances, including your particular circumstance to relocate to anywhere in Rwanda. Accordingly, I find that there is no Internal Flight Alternative available to you based on the evidence before me.
CONCLUSION
[33] For the foregoing reasons I determine that you are a Convention refugee pursuant to section 96 of the Act and I accept your claim.
[34] CLAIMANT: Thank you so much, thank you so much.
——— REASONS CONCLUDED ———