2023 RLLR 264
Citation: 2023 RLLR 264
Tribunal: Refugee Protection Division
Date of Decision: November 6, 2023
Panel: Amrit Singh Kahlon
Counsel for the Claimant(s): Heather Lynn Razaghi
Country: Gambia
RPD Number: VC3-05807
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A
DECISION
[1] This is the decision of the Refugee Protection Division (“RPD”) in the claim of XXXX XXXX (the claimant) as a citizen of Gambia who are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).[1]
ALLEGATIONS
[2] The allegations by the claimant are available in the BOC narrative provided by the claimant in exhibit 2. The allegations are summarised as below:
[3] The claimant is an 18-year-old Gambian citizen who alleges persecution at the hands of family and government due to his sexual orientation. The claimant alleges that his parents have threatened him that they would kill him if he returned to Gambia after they found out he was gay.
[4] He first realised he was gay when he was around 10 years old when he opened up with his best friend XXXX. His classmates started calling him gay when they saw him holding hands with XXXX. The news reached his parents, but he denied of being a gay because he feared his parents who are both well known in the community as XXXX XXXX.
[5] The claimant met XXXX in high school and developed feelings for him. They began dating in XXXX 2020. The claimant was seen on a date with XXXX in XXXX 2020 by his cousin who informed his family. When he returned home, he was beaten mercilessly and that’s when he also sustained injury on XXXX.
[6] The claimant then went on to live with his uncle who supported him as claimant acted and behaved the way his family would have wanted him to behave. The claimant’s uncle sponsored him to go to Canada for studies.
[7] When in Canada the claimant posted a story on social media through which his family found out he still hasn’t changed and because of this his uncle said he was no longer going to support his stay in Canada.
[8] The claimant moved to Edmonton after this as there were a lot of Gambians in Toronto and feared harassment at their hands for being gay.
[9] The claimant also alleged that he suffers from XXXX and XXXX.
DETERMINATION
[10] I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA, as he has a well-founded fear of persecution for a Convention ground, namely for membership in a particular social group as a gay in Gambia. In arriving at this determination, I have considered and applied the Chairperson’s Guidelines pertaining to sexual orientation, gender identity and expression, and sex characteristics.
ANALYSIS
Identity
[11] The claimant’s identity as a national of Gambia is established by the sworn statements in his BOC form and the copy of his Republic of the Gambia passport contained in evidence in Exhibit 1 and 4.
Credibility
[12] The Federal Court has held in Maldonado[2] that when a claimant swears to the truth of certain allegations, it creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness. The presumption of truthfulness does not apply to inferences or speculation.
[13] In this claim the claimant is an 18-year gay man from Gambia who left his home at the age of 16. I found the claimant to be nervous and not very articulate in terms of explaining his sexual orientation and being treated differently than others. Although there were some minor inconsistencies related to dates, I find the claimant to be generally credible as his oral testimony was consistent with his BOC narrative.
[14] I have also taken into consideration claimant’s personal circumstances. He was 16 years old when he came to Canada and made an asylum claim when he was 17. During the hearing he was 18 years old, and it is reasonable to be nervous and get confused about dates when you are all alone away from your home and family and trying to survive at this young age.
Date inconsistency about making the claim
[15] The claimant was asked at the starting of the hearing about when he came to Canada to which he responded that he came to Canada in XXXX 2021. The claimant was then asked when he made the refugee claim in Canada to which the claimant said XXXX 2022. Towards the end of the hearing the claimant was shown his signatures and dates on his BOC narrative that stated that he had made the claim in XXXX 2023. The claimant initially said he never said XXXX 2022, the claimant’s counsel also jumped in by saying that the panel did not ask this question before to the claimant. The claimant and the counsel were then explained that the panel had asked this question at the start of the hearing and that record is available in recording and transcript if they want to see it. Later the claimant confirmed that he may have misspoken in nervousness and that he only made the claim in XXXX 2023. The panel did find the claimant to be nervous throughout the hearing. Given his young age and no support system in Canada its reasonable to be nervous in events like refugee hearing. The panel finds that the inconsistency in dates does not go to the heart of the claim and also accepts claimant’s explanation and do not make a negative inference about inconsistency in dates.
Delay in Claim
[16] The claimant was then asked to explain the delay in making the claim since he had arrived in Canada in XXXX 2021 but only made the claim in XXXX 2023. The claimant explained that he was only 16 years old when he came to Canada and did not have knowledge of refugee process. He had originally come for education which he could not pursue as his uncle stopped funding his education once he found out that claimant was still a gay man. The claimant also explained that he only learnt about refugee program when he was advised by XXXX XXXX XXXX XXXX XXXX to seek asylum.
[17] The panel finds it is normal for a young individual without any support system to be not aware of options available to him. Thus, the panel accepts the claimant’s explanation on delay in claim and do not draw any negative inference about the same.
Involvement with LGBTQ community
[18] The claimant was then asked about his involvement with LGBTQ community. To this the claimant initially said he was involved with LGBTQ community in Edmonton since XXXX 2022 and later said it was XXXX 2023 and that he got confused and nervous when he said XXXX 2022. The claimant testified he has attended 5 to 7 events with the Edmonton Pride/LGBTQ community like a hockey game and going snowboarding. Based on the oral testimony and the documentary evidence submitted in the form of support letter from XXXX XXXX XXXX the panel finds that the claimant was involved with the LGBTQ/Pride community since XXXX 2023.
[19] The claimant also submitted corroborating evidence as part of Exhibit 4 which is analysed as below:
i. Attestation from Mosque on parent’s involvement in XXXX XXXX
ii. Parent’s ID cards
iii. Support letter from sister XXXX- provides corroborating testimony on life in the Gambia and about past relationships in Gambia. Also provides testimony on dangers faced by the claimant in the Gambia.
iv. Supporting letters related to study permit in Canada
v. Text messages from Uncle and sister- provides corroborating evidence about key events.
vi. XXXX XXXX XXXX from Gambia showing injuries when the claimant was beaten by his family when they found out that he was gay
vii. Support letter from friend with whom claimant has attended multiple LGBTQ events in Edmonton.
viii. Support letter from XXXX XXXX and XXXX XXXX membership card- provides corroborating evidence on the claimant being an active member of LGTBQ community.
ix. Support letter from XXXX XXXX XXXX XXXX XXXX- provides corroborating evidence about being a member of LGTBQ community since XXXX 2023.
x. Country condition documents showing persecution of the LGTBQ people in the Gambia.
[20] I have no reasons to doubt the genuineness of the documents provided by the claimant thus I accept these documents as credible. Given the analysis of the document above I find the documents of high probative value and give them full weight.
[21] Based on the BOC narrative, consistent oral testimony and documentary evidence provided by the claimant I find that the claimant has established on a balance of probabilities the facts alleged in his claim, including his identity as a gay man.
[22] The claimant testified that he was beaten mercilessly by his family when he was seen with his boyfriend XXXX on the beach. The claimant also testified that his parents had threatened to kill him if he ever came back to the Gambia after they realised, he had not changed and was still gay after he reached Canada. The claimant also testified that being homosexual is punishable by law in the Gambia with prison up to 14 years. As discussed below in next section the objective evidence also suggests that homosexuality is criminalized in Gambia. Thus, I find that the claimant has a subjective fear of returning to The Gambia
Nexus
[23] The claimant’s allegations support a nexus to the Convention ground of particular social group due to his sexual orientation as a gay man.
Well-Founded Fear of Persecution
[24] The country condition documents support the claimant’s fears of returning to the Gambia.
[25] As per NDP item 2.1 available in Exhibit 3, The US Department of State Report, indicates that the law criminalizes consensual same-sex sexual conduct and there were reports of the government perpetrating violence against LGBTQI+ persons. The report also notes that there is strong societal discrimination against LGBTQI+ persons and no laws to address the discrimination.[3]
[26] NDP item 1.8, the European Asylum Support Office report indicates that there are laws criminalizing same-sex sexual conduct in The Gambia and describes how there have been reports of human rights abuses including arrests and torture. This report further describes how senior officials in the government and in the judiciary have made public comments condoning the LGBTQI+ community.[4]
[27] NDP item 2.8, a UNHCR report indicates that patriarchal attitudes in the country result in significant discrimination against women in accessing justice, with respect to marriage, and in employment. The report also indicates that there is a high level of violence against women in the country.[5]
[28] Based on the totality of the evidence, I find that the claimant has established that the ongoing discrimination and violence towards diverse SOGIESC individuals in The Gambia, amounts to persecution. I further find that looking at the claimant from an intersectional approach, as a gay man with XXXX XXXX issues, the country condition documents indicate that the claimant is at a heightened risk of persecution and the claimant has established a well-found fear of persecution if he was to return to The Gambia.
[29] Further given that homosexuality is criminalized in Gambia and there is no indication that the conditions for SOGIESC individuals have improved in the country, I find that the claimant has a well-founded fear of persecution due to his sexual orientation if he returns to Gambia.
State Protection
[30] Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens.
[31] The country condition evidence, including reports noted above, indicates that the state is a significant perpetrator of violence and persecution against SOGIESC-diverse people in The Gambia. As such, I find that there is no operationally effective state protection available for the claimant in his particular circumstances and the presumption of state protection is rebutted based on the objective evidence available.
Internal Flight Alternative
[32] I have also considered whether the claimant would have a viable internal flight alternative available to him in The Gambia and I find that he does not.
[33] NDP item 1.8, the European Asylum Support Office report indicates that there are laws criminalizing same-sex sexual conduct in The Gambia and describes how there have been reports of human rights abuses including arrests and torture.
[34] The Gambia is a small country, and the country condition documents provide insufficient evidence to show that there is a location in the country where diverse SOGIESC individuals do not face persecution. The objective evidence states that homosexuality is criminalized in the Gambia and the state has control over entire territory and the same law would apply to all parts of the country. As such, I find that there is no viable internal flight alternative available to the claimant as he would face more than a mere possibility of persecution anywhere in the country.
CONCLUSION
[35] For the foregoing reasons I determine that the claimant is a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act and the Board therefore accepts his claim.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302.
[3] National Documentation Package, Gambia, 31 May 2023, tab 2.1: Gambia. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[4] National Documentation Package, Gambia, 31 May 2023, tab 1.8: EASO Country of Origin Information Report. The Gambia: Country Focus. European Union. European Asylum Support Office. December 2017.
[5] National Documentation Package, Gambia, 31 May 2023, tab 2.8: Compilation on the Gambia. Office of the United Nations High Commissioner for Human Rights. 23 August 2019. A/HRC/WG.6/34/GMB/2.