2023 RLLR 247

Citation: 2023 RLLR 247
Tribunal: Refugee Protection Division
Date of Decision: December 14, 2023
Panel: B. Lloyd
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Guyana
RPD Number: TC3-24350
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A

 

DECISION 

 

[1]                   XXXX XXXX (the claimant) a citizen of Guyana[1] seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA). 

ALLEGATIONS

 

[2]                   Details of the claimant’s allegations can be found in the narrative attached to his basis of claim (BOC) form.  The claimant fears persecution due to his sexual orientation, namely he identifies as a gay.  

DETERMINATION

 

[3]                   In considering these claims, I have taken into consideration Chairperson’s Guideline 9 – Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC).[2] 

 

Credibility

 

[4]                   The determinative issue in this claim is credibility regarding the claimant’s profile as a gay man.  In making this assessment, I have considered all the evidence, including the oral testimony and documentary evidence entered as exhibits.[3]

[5]                   The claimant testified in detail about his experience in Guyana.  The claimant explained how it was very tough for him and his family’s religious practices.  The claimant was consistent with his evidence, that he has never had a girlfriend, and has only been attracted to men.  I have no reason to doubt the veracity of his testimony regarding sexual orientation, as a gay man.  Though, I do have issues with his testimony regarding his father’s employment.  I find this was an embellishment to provide an explanation as to why he could not seek state protection.  

[6]                   When asked about the delay in making a claim for protection, the claimant described lacking knowledge about seeking protection in the United States or Canada.   Though I find this not credible in the end I find the claimant has established his personal identity, thus, I cannot find it is sufficient to state this undermines the credibility of his testimony.  I have taken into consideration the challenges faced by individuals of diverse SOGIESC in establishing their SOGIESC as set out in the Guidelines, in assessing the reasons for the delay. 

[7]                   I note the claimant has stated he lived in the closet in Guyana, only telling a cousin and a friend of his sexual orientation.  He has had two relationships beginning in 2019 but none while in Canada.  Though he testified to feeling that he could live freely as a gay man here in Canada. 

[8]                   A review of the national documentation package[4] indicates that there is a climate of homophobia and violence throughout Guyana.[5]   The documents state that sexual acts between males are criminalized in Guyana.  While these laws are not enforced, the existence of these laws creates a climate that sanctions violence and discrimination against members of the LGBTQ[6] community.  Other laws such as anti-vagrancy and loitering codes are reported to have been arbitrarily enforced against persons whom the police may suspect of being LGBTQ.   

[9]                   There are no statistics available for violence against members of the LGBTQ community, anecdotal reports are that they regularly face threats, intimidation, harassment, and violence in public spaces.  This violence is perpetrated by both private and state actors.   Official and societal discrimination is reported in employment, access to education and medical care, and in public space.   Despite this, the government permitted the first gay pride parade in June 2018 and there is a view that the Guyanese population is becoming more tolerant over time with the place of LGBTQ persons in the society.[7]   I find that the climate towards the LGBTQ community may be starting to change; however, there is little evidence that this has resulted in meaningful changes to the lived experiences of LGBTQ persons in Guyana.   

[10]                   Based on the documentary evidence cited above, the panel finds the claimant’s fear of return to Guyana to have an objective basis.  The claimant has established a well-founded fear of persecution in Guyana.       

[11]                   I note the claimant apparently fears his close family members including his father, and stepmother if they were to learn of his sexual orientation.  He has described an atmosphere of homophobia that he has experienced despite not being out of the ‘closet’.  While I do not find that he has established his father is in fact a XXXX with the XXXX XXXX, as mentioned I find this was an embellishment, the objective evidence indicates that access to justice is often denied in its initial stages by some law enforcement officers who refuse to take, or investigate, reports proffered by LGBTQ individuals.  The inability to report crime leads to a lack of access to the complete justice system, including courts and remedies.  Many of the LGBTQ population have identified their reluctance to report crimes to the police and the negative interactions they have experienced with the Guyanese police.[8]

[12]                   Many LGBTQ persons have lost trust in the police due to police harassment both inside and outside the police station, especially after further struggling to report such incidents to the Police Complaints Authority.  The multiple systematic barriers that LGBTQ persons face in accessing justice contribute to an overall environment of impunity for perpetrators of crimes against LGBTQ individuals, further fueling mistrust in the police and justice system. 

[13]                   Given this climate, I find the claimant has rebut the presumption of state protection.

CONCLUSION

[14]                   Based on the totality of the evidence, I find the claimant to be a Convention refugee.

[15]                   His claim is accepted.  

 

 

——— REASONS CONCLUDED ———

 

[1] Exhibit 4, citizenship established with passport attached to the ICAC ready package.

[2] Immigration and Refugee Board of Canada (IRB) The Chairperson’s Guideline 09: Proceedings before the IRB involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, Guidelines continued in effect by the Chairperson 01 May 2017 and revised on 17 December 2021, under ss. 159(1)(h) of the IRPA

[3] Exhibit 5-7

[4] Exhibit 3

[5] Ibid., National Documentation Package, Guyana, 31 July 2023, tab 2.1: Guyana. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023. National Documentation Package, Guyana, 31 July 2023, tab 2.7: Third periodic report submitted by Guyana under article 40 of the Covenant pursuant to the optional reporting procedure, due in 2021 . United Nations. Human Rights Committee. 31 May 2022. National Documentation Package, Guyana, 31 July 2023, tab 6.2: Guyana. Our Identities Under Arrest: A global overview on the enforcement of laws criminalizing consensual same-sex sexual acts between adults and diverse gender expressions. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Kellyn Botha. 15 December 2021.CCPR/C/GUY/3.

[6] Acronym for Lesbian, Gay, Bisexual, Transgender, and Queer community 

[7] Exhibit 3, National Documentation Package, Guyana, 31 July 2023, tab 6.3: A Study of Perceptions and Attitudes towards LGBT Persons in Guyana. RMK Consulting Enterprise. 28 September 2022.

[8] Exhibit 6, articles