2023 RLLR 239

Citation: 2023 RLLR 239
Tribunal: Refugee Protection Division
Date of Decision: December 29, 2023
Panel: Ademiju Olatunji
Counsel for the Claimant(s): Wendy Aguilar
Country: Ghana
RPD Number: VC3-10111
Associated RPD Number(s): N/A
ATIP Number: A-2024-01133
ATIP Pages: N/A

DECISION 

[1] MEMBER:  So, this is the decision of the Refugee Protection Division concerning the claim of XXXX XXXX, a citizen of Ghana. 

[2] The claimant is claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act, IRPA. 

ALLEGATIONS

[3]                   The claimant alleges that he is a bisexual and that his sexual orientation became known to people in the city where he resides, possibly because of his stance against the anti-LGBTQ bill which the parliament in Ghana seeks to pass.  He stated that a mob visited his house in XXXX 2023 while he was in school and that these people tried to find him and harm him because of his sexual orientation. He traveled through XXXX XXXX where he stayed with friends until he received his Canadian visa which he had applied for prior to the events of XXXX 2023.  

DETERMINATION

[4]                   The panel finds that the claimant is a Convention refugee pursuant to Section 96 of The Act, as the claimant would face a serious possibility of persecution in Ghana due to his sexual orientation of being a bisexual.  

ANALYSIS

Identity

[5]                   The panel finds that the personal and national identity of the claimant as a national of Ghana is established on a balance of probabilities by a copy of his Ghanian passport which is submitted to the board.  

Nexus

[6]                   For a claimant to be a Convention refugee, the persecution that is the fear must be by reason of one of the five (5) grounds (inaudible) in the Convention refugee definition.  

[7]                   The claimants must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.  

[8]                   The panel finds that the claimant’s allegations have a nexus to the Convention ground of membership of a particular social group by virtue of his sexual orientation as a bisexual man.  As such, the panel has assessed this claim under Section 96 of the IRPA.  

Credibility

[9]                   When a claimant swears to the truth of about his allegations, it creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.  On this, I refer you to the case of Maldonado against Canada Minister of Employment and Immigration reported in 1980 2 F.C. 300 (inaudible).  Additionally, when assessing credibility, the panel is entitled to rely on its rationality and common sense.  See also the case of Shahamati, Hasan against M.E.I. F.C.A., no. A-388-92, reported in March 24, 1994. 

[10]                   The claimant testified about having been in a same-sex relation, in a same sex and heterosexual relationship, he spoke about he became involved in a same-sex relationship in Ghana.  The claimant testified about how he was involved in speaking out against the proposed bill to ban LGBTQ activities in Ghana.  He talked about the general hatred for the LGBTQ community in Canada after the bill was proposed in parliament.  He also said that even though he had been speaking out in support of LGBTQ individuals, he believed people did not know of his sexual orientation until a gay couple were caught having sex and the one who couldn’t escape gave out the names of gay people in his community.  He stated that it was the gay man who escaped when caught with his partner that informed him that his name, that is the claimant’s name, may have been mentioned by the partner that was caught. 

[11]                   The claimant stated that his community is a predominantly Muslim community and that the people are very intolerant of the LGBTQ community.  He also spoke about how a mob went after him at his house in Ghana.  He stated that it was at the XXXX at that time but that he sought refuge elsewhere because some of the community members knew he was studying at the XXXX of Ghana.  He also stated how he, he also testified about how he sought refuge at his friend’s place at another town in Ghana and he eventually left Ghana.  The panel finds the claimant to be credible in respect of the allegations made in his claim.  The claimant testified in a straightforward manner and the panel has no reason to doubt his testimony.  

[12]                   The claimant also submitted documents including sworn declarations supporting the claimant’s application from his friend whom he stayed with in XXXX XXXX and his brother who saw the mob when they came to their house in XXXX 2023.  The panel has accepted the direct reports of what’s the authors of the letters stated as true.  The panel has no reason to doubt the authenticity and reliability of these direct reports in the sworn declarations.  The panel assigns them full weight.  Specifically, the panel finds that the claimant has established his sexual orientation as a bisexual man and his subjective fear of persecution on a balance of probabilities.  

Well-founded Fear of Persecution 

[13]                   In Canada, Attorney General against Ward reported in 1993, 2 S.C.R. 698, the Supreme Court of Canada held that a test for establishing a fear of persecution is bipartite in nature.  Refugee claimants must establish both that they have a subjective fear of persecution if they return to their home country and that their fear is well-founded in an objective sense.  The subjective components relates to the existence of fear of persecution in the mind of the refugee claimants and the objective component requires that the refugee’s fear be evaluated objectively to determine if there is a valid basis for that fear.  

[14]                   Based on the claimant’s testimony and evidence, the panel finds that the claimant has established with credible and trustworthy evidence, that he genuinely fears persecution upon return to Ghana.  

[15]                   Having found that the claimant is a credible witness and that his testimony is consistent, the panel finds that this evidence is sufficient to meet the subjective aspects of the bipartite test.  

[16] In addition to showing that he has a genuine fear, the claimant must show that his fear is well-founded fear of persecution in an objective sense.  Having reviewed the country condition evidence in the National Documentation Package, NDP for Ghana, the panel finds that this evidence establish, establishes, that the claimant’s subjective fear is objectively well founded.  The country condition evidence confirms that sexual minorities including bisexual men, face wide-spread persecution in Ghana.  

[17] The objective evidence at tab 6.1 of the National Documentation Package for Ghana states that consensual same sex acts are criminalized in Ghana. According to section 104 of the Ghanian Criminal Court.  There is a report by Alt-Right International at item 6.2 of the NDP that indicates that hostility towards LGBTQ people has only intensified since the passing, since the introduction of the LGBTQ bill in June of 2021 in parliament which led to multiple forms of human rights violations without redress such as mob attacks, physical violence, arbitrary arrests, blackmail, and online harassment, not only by the police, but also by members of the civil society.  It has also led to employment discrimination and robbery and forced evictions of individuals.  

[18] In addition, the same report notes that the police are also among the perpetrators who violate LGBTQ people’s rights based on perceived or actual sexual orientation, gender identity or expression, and sex characteristics, including arbitrary arrest, detention and court cases, forced searches, verbal and physical harassment, extortion, and intimidation.  

[19] There is also a report by the United States Department of State at tab 2.1 that indicates that violent attacks such as beating and public humiliation of LGBT+ individuals are common in Ghana and such attacks are sometimes also filmed and circulated online to further shame the victims in the eyes of the wider community.  

[20] A report at tab 6.1 of the NDP also notes that government officials in Ghana frequently make public homophobic statements describing LGBTQ identities as being and I quote, “deformities, horrible, and not acceptable” and that same government officials have also publicly promised never to advocate on behalf of LGBTQ+ rights while in office.  

[21] Based on the objective evidence which shows the persecution of SOGIESC individuals in Ghana, the panel finds that the claimant’s fear of returning to Ghana is objectively well-founded and he faces a serious possibility of persecution based on his sexual orientation as a bisexual man if he returns to Ghana.  

State Protection

[22] Except in situations where the state is in complete breakdown, states are presumed capable of protecting their citizens.  To rebut this presumption, the onus is on the claimants to established, to establish, on a balance of probabilities and through clear and convincing evidence that their state’s protection is inadequate.  The more democratic a state, the harder it is to displace this presumption.  The panel finds that there is clear and convincing evidence before the panel to rebut the presumption of adequate state protection in the claimant’s particular circumstances.  

[23] As mentioned above, the government is one of the agents of persecution in this case.  The evidence before met at tab 6.2 establishes that same-sex relations are criminalized in Ghana and that the proposed legislation empowers persons and institutions to detain, arrest, persecute, and discriminate against sexual minorities in almost all facets of life.  

[24] Tab 6.2 further shows that violations against LGBTQ individuals are not only carried out by family members, vigilante groups, and neighbours, but also by the Ghanian police.  The panel therefore finds that there would be no adequate state protection for the claimants in Ghana.  

Internal Flight Alternative 

[25] The Federal Court of Appeal in Rasaratnam against Canada, Minister of Employment and Immigration, reported in 1992 1 F.C. 704, developed a two-pronged test when assessing IFA which entails a consideration of two matters.  The (inaudible) must be satisfied on a balance of probabilities that one, there is a serious possibility the claimant would be persecuted or subjected personally to a risk of section 97(1) harm in the proposed IFA and two, conditions in the proposed IFA are such that it will not be unreasonable in all the circumstances including those particular to the claimant for him or her to seek refuge there.  

[26] Given that the Ghanian government is control throughout the country and that its discriminatory views are applicable everywhere, the panel finds that an Internal Flight Alternative is not viable anywhere in the country.  Since the proposed legislation against the LGBTQ, mob attacks, physical violence, gang rape, and other forms of violence against LGBTQ individuals have been on the rise in Ghana so much so that LGBT individuals do not feel safe anywhere in Ghana.  See tab 6.14 for more of this.  

[27] The panel finds that there is nowhere the claimant would be able to live and expr essentially his opinions about LGBTQ freely in Ghana without being persecuted.  As such, an Internal Flight Alternative in Ghana is not viable in this case as the claimant will face a serious possibility of persecution everywhere in Ghana.  

CONCLUSION 

[28] The panel finds that the claimant is a Convention refugee pursuant to Section 96 of the IRPA.  Accordingly, the panel accepts his claim.  

——— REASONS CONCLUDED ———