2023 RLLR 216

Citation: 2023 RLLR 216
Tribunal: Refugee Protection Division
Date of Decision: December 28, 2023
Panel: Mihaela Kerezova
Counsel for the Claimant(s): Roy C Amadi
Country: Kenya
RPD Number: TC3-34245
Associated RPD Number(s): N/A
ATIP Number: A-2024-01133
ATIP Pages: N/A

DECISION 

[1] MEMBER:  I have considered your testimony and the other evidence in the case before me, and I am now ready to render my decision orally.  The written decision will come to you shortly, which may be amended for grammar and specific citations to case law where needed.  These are the reasons and decision in the claim of XXXX XXXX XXXX with file number TC3-34245, who alleges that he is a citizen of Kenya and seeks protection in Canada as a Convention refugee under section 96 and as a person in need of protection under subsection 97(1) of the Immigration and Refugee Protection Act.

[2] I have also considered guideline 9 for proceedings before the Immigration and Refugee Board involving sexual orientation, gender identity and expression, and sex characteristics and have applied them within the decision below.

DETERMINATION

[3] I find that you are a Convention refugee as you have established a serious possibility of persecution based on your membership in a particular social group, one (1) of bisexual men.

ALLEGATIONS

[4] The allegations for your claim are outlined in the narrative of your Basis of Claim form seen at Exhibit 2.  In summary, as a bisexual man, you alleged being subjected to legal implications and sanctions, as well as harm from people in your country such as the police and your community should you return to Kenya.  You further alleged that the cultural hatred of homosexual activities and the legislation, which punishes individuals engaged therein, is a factor everywhere in Kenya.  In other words, you alleged that neither the state can protect you nor there is an Internal Flight Alternative available to you in Kenya.

ANALYSIS

Identity

[5] You have established on a balance of probabilities your personal and national identity by providing a copy of your valid Kenyan passport and Canadian visa therein seen in Exhibit 1, claim referral information.

Nexus

[6] Your allegations establish a nexus to the Convention ground of particular social group, specifically bisexual men.  I have, therefore, analysed the claim pursuant to section 96 of the Immigration and Refugee Protection Act.  As bisexual is the term you testified to that you identify yourself, this decision will also refer to bisexual throughout in accordance with section 2.7 of the SOGIESC guideline that individuals should be allowed to self-identify and their self-identification respected during the proceedings.

Credibility

[7] Sworn testimony is presumed to be credible unless there is a valid reason to doubt it.  I am cognisant of the difficulties faced by individuals in establishing their claims including different levels of education, testifying in a virtual hearing environment, and cultural factors.  Overall, I have found you to be a very credible witness, and in light of your overall profile and your ability to communicate effectively, I reasonably expected you to speak with insight and detail about aspects of your life related to your sexual orientation.  As a result, I inquired about your understanding of your sexual orientation, how it evolved, how that awareness has impacted you and your family members, and how your sexual orientation led you to seeking safety in Canada.

[8] As part of your claim, I have first explored the 1E exclusion issue because of your travels to Qatar in a period of over 10 years between 2010 to 2023.  Today, you testified that you had travelled to Qatar approximately two (2) times a year and you were working there on a contract for the XXXX XXXX XXXX, which is a Qatar-based company, and you had their two (2)-year contracts that were renewed.  You explained that you needed to renew these contracts each time once they expire while meeting certain conditions and that you could only work for one (1) employer, which is a closed work permit.  You told me that there is no option to apply for permanent residency in Qatar, as their laws do not have provisions for that, which would stem from previous work permits.  I also note the Minister’s correspondence on the record regarding the same issue, where they notified the Board on December 8, 2023, that they will not be intervening on the 1E exclusion issue.  I am, therefore, satisfied on a balance of probabilities and based on your testimony today that the 1E exclusion issue does not apply in your case and I have, therefore, proceeded further with inclusion and analysis on the merits of your claim.

[9] You alleged that you were 12 years old when you first discovered your sexuality, but you were not able to act upon it out of fear at that time because this is a taboo in your country.  You provided credible testimony about how you met your partner with initial F in 2014, how your relationship with him began, and how it ended due to an unfortunate incident on XXXX XXXX, 2022.  This is when the two (2) of you were caught in a hotel and were exposed to your family and the authorities by your cousin.  Today, you told me about the qualities you liked about your partner, the long-distance relationship and communications while you were in Qatar, the memorable moments you have shared, as well as other details about your relationship.  You testified of not displaying your affection in public for fear of discovery and for being very discreet in this long-term relationship.

[10] I had concerns related to your re-availment to Kenya, which occurred on two (2) occasions after this alleged incident in XXXX of 2022.  You went to Qatar twice after the incident and then returned back to Kenya two (2) times, each time through the Nairobi airport.  Today, in your testimony, you did not try to embellish and you were sincere in your responses that you did not face problems during your exits and entries to and from the country.  Nevertheless, you testified that you took precautions as you feared for your safety.  You were very discreet and kept low-profile while living in another small town without going back to your own hometown and without letting anyone from your family know that you are there.  You explained that you needed to go back to Qatar for financial reasons because you needed money to secure your Canadian visa and to finance your trip to Canada.  I find this explanation to be very sincere and plausible, and therefore, I do not draw negative inference from your re-availments to Kenya because I know that these were for the purposes of securing your safe passage to Canada where you intended to seek protection.  Therefore, the re-availment is not a determinative issue in your case.

[11] In addition to your testimony about your relationships and issues faced in Kenya, you testified today about the LGBTQ organisations in Canada that you are affiliated with.  You testified about 519, (inaudible) organisation in XXXX, and how you are involved with these organisations.  You told me you are currently not on dating applications as you prefer to look for partners in person, and you also told me that you now feel safe to do so in Canada.  You provided a statement of advocacy from 519 and reference letters from the XXXX organisation where you have volunteered, all found in Exhibits 5.1 and 5.2.  However, I find that your registration or participation in these LGBTQ programs in Toronto or XXXX are not probative of your sexual orientation as a bisexual man as they rely on participant’s self-identification and, therefore, cannot independently verify anyone’s sexual orientation.  Furthermore, these organisations are not in the habit of questioning person’s sexual orientation before providing them with services or before allowing them to volunteer, as anyone can join these organisations and claim to have a particular sexual orientation.  I, therefore, place low evidentiary value regarding your allegation as a bisexual man when it comes to these particular letters of support.

[12]                   Nevertheless, when I turn to the remaining documentary evidence available in your disclosure, I note in particular the letters of support from your wife and your mother including their affidavits that are corroborating to the incident you have faced in Kenya in XXXX of 2022.  I place more weight on these documents because, while they cannot accept your sexuality as your family members, these two (2) individuals have provided you with their full support to ensure you can be safe in Canada.  I also note the letter of complaint, which your own father made to the community chief on the day of the incident in XXXX of 2022, which demonstrates you have been disowned by your own family members who are deeply ashamed of you.  I have no reason to doubt the genuineness of these letters of support and these affidavits, and therefore, I place full weight on these documents.  That being said, you also testified in a forthright and spontaneous manner, and your testimony was internally consistent where you often provided additional documentation and information without prompting, and at the same time, you did not try to embellish your account.

[13]                   On the few credibility concerns that I have identified to you, such as minor inconsistencies or omissions from your Basis of Claim narrative, you provided spontaneous responses, and thus, you assisted in resolving these credibility concerns quickly and in a satisfactory manner.  All in all, I find your oral testimony to credibly establish on a balance of probabilities your profile as a bisexual man, specifically how you express your sexual identity openly in Canada now, which contrasts the way you have to conceal your sexual identity and same-sex relationship in Kenya.  I find you to be a very credible witness, and therefore, I believe what you have alleged in support of your claim.

Well-Founded Fear of Persecution

[14]                   You testified in detail about self-identification and exploration in Kenya with respect to sexual identity as a bisexual man, which to you means having an attraction to both male and females.  You testified about how the community attacks SOGIESC people in Kenya and how these attacks are regularly broadcasted in the community.  You vividly described the encounter at the hotel where crowd gathered quickly on XXXX XXXX, 2022, when they discovered you and your ex-partner at a local motel and when you both needed to run in opposite directions.  You lived in hiding for over nine (9) months until you left for Canada as you were too scared to go back to your home to even fetch your own passport out of fear of encountering the vigilantes again.  These incidents amplified your fear of aggression and hostile behaviour towards you as a bisexual man and have prompted you to leave Kenya.  In assessing your overall credibility, I find that your testimony was consistent with someone whose sexual orientation did not conform to societal norms and expectations.  I find that your description of your own strategies for mitigating risks to life and safety, as well as your ability to testify, were sincere, reflective and authentic of lived experience.  You answered all of my questions about your understanding of life as a bisexual man, and you were emotionally compelling in the way you spoke about your fear of harm or about your
ex-partner with initial F.  Based on these findings and the credibility of your allegations, I also find that you have credibly established your subjective fear of persecution in Kenya due to your sexual orientation.

Objective Basis

[15]                   I further find on a balance of probabilities that there is also an objective basis for your fear of returning to Kenya that is based on the documented country conditions, which can be found in the National Documentation Package or NDP for Kenya in Exhibit 3.  There are several sources that indicate persecution based on sexual orientation.  Most notably, they can be seen in Items 2.1 and Items from 6.1 all the way through Item 6.16.  Same-sex sexual activity is criminalised under the Kenyan Penal Code, which sets out a sentence of up to 14 years for carnal knowledge against the order of nature.  This criminalisation of same-sex activity was upheld by the High Court of Kenya in a 2019 decision.  While there are some indications that attitudes towards SOGIESC individuals in Kenya are improving, stigma against sexual minorities remains deeply entrenched.  The stigma is reinforced by those who hold the highest levels of political office in Kenya including the former president who stated in a 2018 interview that Kenya does not consider gay rights relevant as it goes against the cultural beliefs of Kenyans.

[16]                   Sources also note that violence and discrimination against SOGIESC individuals in Kenya is widespread and includes risks such as murder, mob violence, verbal assault, rape, blackmail, extortion, arbitrary arrests, physical violence, ridicule, constant harassment, stigma, and exclusion by family and society including expulsion from workplace or learning institutions, denial of work, denial of housing, and poor access to health care.  Moreover, people who do not conform to society’s expectations about gender and sexuality, particularly sexual minorities, are immediately in danger.  Sexual minorities are not only marginalised, but often face violence and discrimination when they are open about their sexual orientation and gender identity and when they are perceived to be anything other than heterosexual.  This can come from an individual’s family, community, or even from state officials.  I find that this is very much the case and what happened to you under your personal circumstances in Kenya.

[17]                   To summarise, the NDP for Kenya makes multiple references for the maltreatment of both men and women who identify themselves as SOGIESC individuals or who choose to have same-sex relationships, and this maltreatment amounts to persecution.  I am satisfied that there is ample evidence of an objective basis for your subjective fear in this case.  I, therefore, find that you have demonstrated on a balance of probabilities that you will face a serious possibility of persecution in Kenya if returned there based on your sexual orientation as a bisexual man.  And further to that, I find that you have established a subjective fear of persecution, which is objectively well-founded.

State Protection

[18]                   In assessing the state protection, there is a presumption that the state can protect its citizens, except in situations where the state is in a complete breakdown.  As noted in section 8.6.4 of the SOGIESC guideline, the existence of laws criminalising nonconforming sexual orientations, sexual behaviours, gender identities or expressions, or sex characteristics, and the enforcement of these laws by the state may be evidence that state protection is inadequate.  As same-sex sexual activity is criminalised in Kenya and since homophobic violence continues with impunity, I find that there is a clear and convincing evidence that state protection in Kenya would not be forthcoming to you as a bisexual man should you try to seek it upon return to that country.  I, therefore, find that you have rebutted the presumption of state protection and that adequate state protection would not be available to you in Kenya.

Internal Flight Alternative

[19]                   I have also considered whether there is a viable IFA for you if you go back to Kenya.  As noted in section 8.7.1 of the SOGIE guideline, it is well established in law that an IFA is not viable if a SOGIE individual must conceal their SOGIE profile to live in that location.  Given the state’s capacity, the criminalisation of same-sex conduct and the homophobic attitudes that exist countrywide as outlined in the objective evidence cited earlier, I find that there is no safe place for you to live openly as a bisexual man in Kenya, and there is nowhere in your country where you would not face a serious possibility of persecution based on your membership in this particular social group.  Therefore, I find that there is no viable IFA available to you anywhere in Kenya.

CONCLUSION

[20]                   In conclusion, on the totality of the evidence, I find that you have a serious possibility of persecution in Kenya on the grounds of membership in a particular social group of bisexual men.  Accordingly, I find you to be a Convention and refugee and I accept your claim.

——— REASONS CONCLUDED ———