2023 RLLR 219
Citation: 2023 RLLR 219
Tribunal: Refugee Protection Division
Date of Decision: December 19, 2023
Panel: Janet Walker
Counsel for the Claimant(s): Adam Wawrzkiewicz
Country: Kenya
RPD Number: TC3-40221
Associated RPD Number(s): N/A
ATIP Number: A-2024-01133
ATIP Pages: N/A
DECISION
[1] MEMBER: OK, so this is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, that’s spelled XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, who claims to be a citizen of Kenya and no other country, and he seeks refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act. In assessing his claim, I considered and applied the IRB Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics. My determination is that the claimant, I find the claimant to be a Convention refugee as he faces a serious possibility of persecution in Kenya on a Convention ground as a member of a particular social group on the basis of his sexual orientation as a gay man.
[2] Turning to the claimant’s allegations, these are set out in his Basis of Claim form and narrative. In summary, the claimant alleges that he is a gay man who has openly advocated and protested on behalf of persons with diverse sexual orientation in Kenya, which resulted in him being arrested on three (3) separate occasions and on one occasion being beaten by masked men after which, sorry, by men after which he was forced to essentially live in hiding. Turning to my analysis, in terms of identity, I’m satisfied on a balance of probabilities that the claimant has established his national identity as a citizen of Kenya, based on his testimony and his passport, a true copy of which was provided in the evidence. I further find that the claimant has established his personal history in Kenya on a balance of probabilities through his testimony and through his extensive package of personal documents. Turning to Nexus, as the claimant alleged, alleges that he has a well-founded fear of persecution by reason of his sexual orientation and that he would be personally subjected to a risk to his life, to a risk of cruel and unusual treatment or punishment. I assessed his claim under section 96 of the Immigration and Refugee Protection Act.
[3] With respect to credibility, the focus was on the central element of the claim, the credibility of the claimant’s evidence in respect of his sexual orientation. I find that the claimant has established his sexual orientation on a balance of probabilities through his testimony and his supporting documents. In summary, the claimant gave testimony in relation to his realization of his same-sex attraction and evidence in relation to his journey in accepting his orient-, his homosexuality, and also his testimony about his relationships with men. The claimant testified in respect of his activities as an advocate in the LGBTQ community in Kenya, providing the Panel with extensive documentary evidence in respect of his long-term involvement as an employee and advocate for the XXXX XXXX XXXX XXXX XXXX in Nairobi, Kenya. I note that this involvement spanned almost 20 years and led to his arrest while protesting against decisions of the High Court of Kenya when they determined not-, determined not to grant NGO status to the network, and when the court found the Penal Code provisions criminalizing same-sex consensual activity to be constitutional.
[4] The claimant provided me with fulsome testimony about his advocacy and the central place that it has in his life as well as the documents supporting his involvement with this organization. The claimant provided me with documents about his involvement through that organization with the Gay and Lesbian Coalition of Kenya. I found the claimant’s testimony to be consistent with his narrative, and he gave credible evidence in relation to his sexual orientation. I further found the claimant’s evidence regarding his personal experience as a gay man in Kenya to be credible, and I accept the claims that he made regarding the experiences he had prior to his departure, which included a homophobic incident at his home where he was beaten and injured. I accept that the attitudes of the local population are at best ones of intolerance in relation to sexual minorities in Kenya and further that homophobia is widespread in that country, and I find the claimant’s claims accord with the country condition information before it which I’m going to turn to next. The Panel accepts the claimant’s evidence in relation to his circumstances in Kenya and I find that-, I further find that the claimant faces a serious possibility of persecution in Kenya for reasons of his sexual orientation.
[5] Turning now to the objective basis, I find that the objective country evidence found in the National Documentation Package clearly shows the prevalence of human rights abuses and widespread societal hostility against homosexuality throughout Kenya. This evidence clearly supports the claimant’s allegation that he will continue to face persecution if he returns to Kenya because of his sexual orientation. The Kenyan Penal Code criminalizes conceptual same-sex activity, carrying a maximum penalty of 14 years imprisonment. This is seen to justify the corollary of homophobic police abuse, mob violence, harassment, and intimidation perpetrated on the LGBTQ community in Kenya. I note that the claimant’s testimony in respect of his beatings and arrests as well are also substantiated in Items 2.1,6.6,6.7 and 6.12 of the National Documentation Package. While the country evidence is mixed in terms of the level of prosecutions that are actually carried out under sections 162 and 165 of the Kenyan Penal Code, the chilling effect that it has on the gay and lesbian community is very clear. The same sources indicate that while the Constitution speaks in general terms of the guarantee of rights to Kenyan citizens, it is silent in respect to sexual minorities, and the intolerance and harassment toward these individuals is well documented. Having taken into account these reports, I find that the claimant faces a serious possibility of persecution on the basis of his sexual orientation and his past work as an LGBTQ advocate in Kenya. Consequently, I find that his fear of persecution is well-founded.
[6] Turning now to state protection and a possible internal flight alternative. I find that in that adequate state protection would not be available to the claimant if he were to seek it in Kenya, and I note in this respect that the claimant did attempt to relocate several times and their protection did not appear to be forthcoming from the State. There is evidence that the State is one of the agents of persecution in the cases of sexual minorities and legislation penalizing same-sex consensual activity is still in place. Of particular interest in this claim is a report which indicates that the government’s failure to investigate or prosecute attacks on human rights defenders and peaceful protesters has led to the de facto restrictions on freedom of assembly and association. So, while the claimant may not have been charged under the Penal Code, he was arrested, he was not advised of the charges against him, and detained for periods of time. In light of the evidence, I find that the claimant has rebutted the presumption of state protection, and, in his circumstances, adequate state protection would not be available to him inside Kenya. I also considered whether the claimant has an internal flight alternative to his country of nationality, and I’ve concluded that he does not. The situation for individuals with diverse sexual orientation and gender expression is prevalent throughout Kenya. I find that the claimant could not live safely elsewhere in Kenya as the treatment of sexual minorities is similar across the country and the law criminalizing same-sex sexual relationships and the effect of that law applies throughout the country. As the state is one of the agents of persecution, I find that there is no alternative flight of the alternative that’s available to the claimant. For these reasons, I find that the claimant faces a serious possibility of persecution throughout Kenya.
[7] So, in conclusion, I find that the claimant has satisfied his burden of establishing a serious possibility of persecution on a Convention ground based on his sexual orientation. I find that the claimant is a Convention refugee, and his claim is therefore accepted.
——— REASONS CONCLUDED ———