2023 RLLR 218
Citation: 2023 RLLR 218
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2023
Panel: Zhanna Perhan
Counsel for the Claimant(s): Oltion Toro
Country: Kenya
RPD Number: TC3-38982
Associated RPD Number(s): N/A
ATIP Number: A-2024-01133
ATIP Pages: N/A
DECISION
[1] MEMBER: Okay, so I had an opportunity to consider the testimony, examine the evidence before me, and I am ready to render this decision orally. The decision is for Mr. XXXX XXXX XXXX, file XXXX XXXX XXXX. Mr. XXXX, you claim to be a citizen of Kenya. You are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[2] In making this decision, I considered Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics, and I have applied these Guidelines in my decision. In these reasons, I also use the terms LGBTQ+ and SOGIESC interchangeably.
[3] I find, Mr. XXXX, that you are a Convention refugee because you face a serious possibility of persecution on the grounds of your membership in a particular social group, namely, as a gay individual in Kenya. My reasons are as follows.
[4] The allegations of your claim can be found in your Basis of Claim form, both original and updated, in Exhibits 2 and Exhibit 5.2. In summary, you allege that you fear Kenyan authorities, homophobic Kenyan community, and your extended family members, because of your sexual orientation as a gay man. You allege there is no state protection for you, nor is there any internal flight alternative available in Kenya.
[5] Your personal identity as a citizen of Kenya has been established by your testimony and the supporting documents filed in exhibits, specifically, your certified true copy of your Kenyan passport, available in Exhibit 1. I find on a balance of probabilities that your identity and country of reference have been established in.
[6] In terms of your general credibility, I find you to be a credible witness. Your testimony was spontaneous, upfront, was consistent with your Basis of Claim narrative, and the supporting documents on file. The central allegations of your claim have to do with your sexual orientation, so I put a lot of weight on your testimony and provided evidence that has to do with your same-sex relationships in Kenya. Your testimony, again, was emotional, filled with detail, speaking to the genuineness of those relationships.
[7] In your testimony, you detailed how and when you realized your attraction to same sex, during your XXXX XXXX, and how you suppressed your feelings for some time, and how you finally confessed to XXXX (ph), one (1) of your best friends from XXXX XXXX. You detailed how you continued with your relationship during your XXXX, and later, after you both graduated, when you and XXXX were caught having sex, and the events that followed, including your and XXXX’s relocation, and later, fleeing Kenya.
[8] You also detailed about two (2) other brief sexual relationships you had with XXXX (ph)and XXXX (ph) in Kenya. You explained why you broke up with XXXX after his relocation, and — but that you remained friends. That is why he was willing to support you when you applied for refugee protection in Canada, by providing you with a support letter, available in Exhibit 5.2, and connecting with XXXX, who also provided a letter to you, through XXXX.
[9] You spent 11 months in Thailand, and you also explained why you did not remain there. Where — you went to Thailand in XXXX 2022, and you remained there until XXXX 2023. You testified about racism and discrimination there, during your work there, and that you were there initially to hide, and to wait for your Canadian visa to come through.
[10] You detailed also why you traveled back to Kenya in XXXX 2022, as you needed to extend your legal stay in Thailand and change your status from visitor to worker. You inquired everywhere, but the only way for you to legally change your status was to return to Kenya and process the documents there. You detailed how you managed to stay safe in Kenya for a few weeks that were needed to obtain the documents, as you were staying with XXXX’s parents, who provided all the necessary support to you.
[11] You also testified to your life here in Canada, your friends, support network, especially coming from the 519, and your friend XXXX (ph), who you shared a room with here in Canada. Even though you have been here for only six (6) months, with the support network, you were oriented, accommodated, and provided guidance as a newcomer and a SOGIESC individual.
[12] You testified that you have no risk here in being and showing who you are, no fear for your life, and this is how you can make plans, and think, and progress. It is a safe place for you, and you are ready to make plans for the future.
[13] In support of your claim, you also provided a number of letters, including those that I already mentioned, but also a letter from your father and a letter from 519 and your friend XXXX, here in Toronto, who has been attending 519 with you. The evidence you provided is probative and relevant, and I give it full weight in establishing your allegations. And there are also copies of your educational and employment documents, which do not speak to your sexual orientation, but do provide corroboration to your allegations, in general.
[14] In light of your credible testimony that has to do with your sexual orientation, the documents you submitted in support of the claim to corroborate those allegations, I find you have established the allegations of your claim that have to do with your sexual orientation on a balance of probabilities. I also find you have established subjective fear in Kenya.
[15] Your claim also has objective grounds, based in the objective country evidence, found in Exhibit 3, and that is the National Documentation Package for Kenya, as well as Exhibit 5.1, the country condition evidence provided by your Counsel on your behalf. In particular, section 6 of the National Documentation Package has to do with the — SOGIESC individuals and relationships. There are numerous reports in that section regarding same-sex activities, which are punishable by imprisonment, as per Kenyan penal code. This law is legitimising homophobia in the country, and there is no explicit protection in the law against discrimination on the basis of sexual orientation and gender identity in Kenya.
[16] The existing law, in particular, and the fixed gender binaries in Kenya have resulted in the state-sanctioned homophobia, absence of progressive laws for socially marginalised sexual minorities in Kenya, and permitted ill treatment by state officials. The mistreatment of SOGIESC individuals continues in Kenya, with discrimination, harassment, violence, arbitrary arrest, sexual abuse, and murders, which have become common occurrences across Kenya.
[17] The objective evidence in the National Documentation Package and the country condition evidence provided establishes that individuals identifying with diverse SOGIESC are persecuted, both by state and non-state actors, in Kenya. For that reason, I find that your objective fear is also well-founded.
[18] In assessing the issue of state protection, I am noting section 8.6.4 of the SOGIESC Guidelines, or Guidelines 9, which states that existence of laws criminalising non-conforming sexual orientation, sexual behaviors, gender identities or expression, or sex characteristics, and the enforcement of these laws by the state may be evidence that state protection is inadequate. As same-sex activities are criminalised in Kenya and homophobic violence continues with impunity, I find there is clear and convincing evidence that state protection in Kenya would not be forthcoming to you as a SOGIESC individual.
[19] I also considered whether there is a viable internal flight alternative for you in Kenya. I find you will not be able to live safely anywhere in the country, since the authorities in Kenya are in control of the entire country, and the laws against sexual minorities apply uniformly throughout Kenya. I find there is no viable IFA for you in Kenya.
[20] Based on the totality of the evidence, I find you face a serious possibility of persecution in Kenya. I find you are a Convention refugee, and I accept your claim. Thank you.
——— REASONS CONCLUDED ———