2023 RLLR 250
Citation: 2023 RLLR 250
Tribunal: Refugee Protection Division
Date of Decision: December 21, 2023
Panel: Candida Quinn
Counsel for the Claimant(s): Gabriel Mushumbusi Ndyamukama
Country: Tanzania
RPD Number: TC3-27582
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A
DECISION
[1] MEMBER: These are the reasons for my decision in the claim of XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. She alleges citizenship in Tanzania and claims protection in Canada under section 96 or subsection 97(1) of the Immigration and Refugee Protection Act, which I will refer to as the Act.
[2] The claimant alleges in Exhibit 2 that she fears harm from Tanzania’s government including the police, her family, and society because she is a lesbian. As she alleges harm based on her sexual orientation and aggravated because she is a woman, I have applied the Immigration and Refugee Board Chairperson’s Guidelines 4 and 9. I further find that she has a nexus to the enumerated Convention ground of membership in a particular social group, that of Tanzanian lesbians. So, I have evaluated the claim under section 96 of the Act. I find that the claimant has established that she is a Convention refugee as she faces a serious possibility of persecution in Tanzania. My reasons are as follows.
[3] First, with respect to identity, on a balance of probability, the claimant has demonstrated her personal and national identity through her testimony and by a copy of her Tanzanian passport found at Exhibit 1.
[4] Next is my consideration of credibility. The starting point for my credibility analysis is the bedrock principle that a claimant’s testimony is presumed truthful, absent an evidence-based reason to doubt it. I considered evidence-based factors such as the consistency and coherence of testimony and the presence or absence of any unexplained material inconsistencies or omissions on record. I also considered the potential difficulties that a claimant might encounter in testifying including the impact of trauma, cultural and social factors, age, education, and the unfamiliarity and high-stakes nature of refugee proceedings. The claimant today is a 36-year-old former XXXX XXXX XXXX with one (1) child. She and her child lived together in Dar es Salaam. The claimant has a XXXX XXXX degree. The child is now with the claimant’s mother in Tanzania. The claimant’s testimony was spontaneous and responsive. It was also unembellished, but she was able to fill in details of her Basis of Claim allegations as needed. I did not detect material inconsistencies or omissions.
[5] Consistently with her Basis of Claim, She testified that she had two (2) same-sex partners in Tanzania. She has one (1) here in Canada as well. The claimant testified extensively about her second same-sex Tanzanian partner, CJ. She met CJ in 2019 when CJ was a XXXX in the claimant’s XXXX. They chatted and CJ gave the claimant her phone number and invited her over sometime before they XXXX XXXX XXXX XXXX. The claimant called CJ later and they got together. They started dating in secret about a month later. The claimant and CJ were being intimate at the claimant’s house on XXXX XXXX, 2022, when a few old school friends of the claimants arrived. The friends were taken aback and they were noisy about it. The claimant grabbed her clothes and money and ran through the group out to the street. CJ ran too, but the claimant has lost track of her. The claimant was able to get to a friend’s house on foot and spent a night there. The next day, she moved to another friend’s in northern Tanzania without telling that friend why she was there. Meanwhile, police went twice to the claimant’s mother’s Dar es Salaam home within three (3) days of the incident. They left no summons, but ordered her mother to tell her to report into the station. They went to the home of the friend in Dar es Salaam with whom the claimant had stayed a night. That friend told the friend in northern Tanzania with whom the claimant was staying, and the claimant was ordered out immediately on XXXX XXXX, 2022. This latter information about the police going to her Dar es Salaam friend’s house alarmed the claimant, and she quickly hired an agent to help her get out of the country. She also changed her phone number for greater concealment of her location. She got a visa on XXXX XXXX, 2022, and left for Canada on XXXX XXXX, 2023.
[6] The claimant submitted letters at Exhibit 4 from the two (2) friends with whom she hid as well as from her same-sex partner in Canada. They appear authentic, are probative, and are given full weight. On a balance of probabilities, I find that the presumption of truthfulness has not been rebutted, that the claimant is probably a lesbian, and that the claimant has demonstrated a subjective fear of persecution should she return to Tanzania because of her sexual orientation.
[7] Next, I turn to the well-foundedness of the claimant’s subjective fear. The objective evidence corroborates the claimant’s subjective fear. Exhibit 3 is the most recent National Documentation Package for Tanzania. It is dated August 2023, and it contains significant evidence of the persecution of that country’s LGBTQ+ community in Items 2.1, 2.4, 6.1 among others. The U.S. State Department’s report on 2022 Human Rights practises says that consensual same-sex intimacy is criminalised in the country, and convictions can be accompanied by significant prison time. “Gross indecency” between women, for example, carries a penalty of up to five (5) years in prison or a steep fine. LGBTQ+ advocacy organisations reported more than 50 known arrests between November 2018 and April 2020. Enforcement of the harsh laws about same-sex intimacy often is violent, giving the claimant another good reason to fear for her safety. Even when not making arrests, police mistreat and harass sexual minorities as well as the agencies that serve them. State security forces have reportedly been responsible for (inaudible) and arbitrary mistreatment of them. Many in the LGBTQ plus community are free to report crimes against themselves and to go to the police for fear of being arrested. Corruption and impunity in the police and security forces are widespread, and police arrest persons they suspect to be sexual minorities based on stereotypes about dress and mannerisms.
[8] The US State Department also reports that societal discrimination against the LGBTQ community is both legal and prevalent and of no apparent interest to Tanzania’s government. This discrimination leads to restricted access to housing, jobs, and healthcare. Women such as the claimant risk not only the stigma, discrimination, and violence, including mob violence, that the entire LGBTQ plus community faces, but according to the United Nations, in 2021, item 2.15 of Exhibit 3, women are subject to “corrective rape.” Given the sum of this objective evidence, I find that the claimant’s fear of persecution for her sexual orientation to be well-founded.
[9] I now go to state protection. The law presumes that a state not in complete breakdown can provide its citizens adequate protection, and the claimant can only rebut this presumption with clear and convincing evidence. The claimant here successfully rebuts the presumption. Not only has Tanzania made no effort to protect sexual minorities from persecution, but a December 2021 report by the International Lesbian, Gay, Bisexual, Trans, and Intersex Association at item 6.8 of Exhibit 3 indicates that the government actually encourages it. Taken together, the evidence demonstrates by clear and convincing evidence, that adequate state protection is unavailable to the claimant in Tanzania.
[10] Finally, I go to internal flight alternative. It is the claimant’s burden, and a heavy one, to show that her persecutors would have both means and motivation to pursue her anywhere in Tanzania and that it would be unreasonable in her circumstances for her to relocate to avoid them. The evidence here, though, shows that Tanzanian society and government have both the means and the motivation to pursue the claimant anywhere in that country just because of her sexual orientation. I note that it is criminalised under Tanzania’s national laws, as there is nowhere in the country in which she does not face the serious possibility of persecution. On the balance of probabilities, there is no viable internal flight alternative available to her.
[11] In conclusion, and for the reasons given, I find that the claimant has established that she is a Convention refugee as defined in section 96 of the Act, and her claim is accepted.
——— REASONS CONCLUDED ———