2023 RLLR 266
Citation: 2023 RLLR 266
Tribunal: Refugee Protection Division
Date of Decision: December 5, 2023
Panel: Yvonne Baillie
Counsel for the Claimant(s): Dieudonne Kamuena Kandolo
Country: Côte d’Ivoire
RPD Number: VC3-06296
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A
DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX XXXX XXXX as a citizen of Côte d’Ivoire who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “IRPA”).[1]
[2] In hearing and assessing this claim, I have considered and applied the Chairperson’s Guideline 9 on Proceedings before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC Guideline).[2] In application of the SOGIESC Guideline, I asked the claimant what terms he was comfortable using in reference to his sexual orientation and he identified himself as gay, meaning attracted to men. I have thereby used this term in addressing the claimant’s sexual orientation in this decision.
[3] I ensured that my questioning was conducted in a sensitive, non-confrontational manner, offering breaks to the claimant, and explaining that he could request a break at any time. I took into account the effect that trauma may have had on the claimant’s testimony, and considered the claimant’s particular intersectionality in my analysis of his claim.
ALLEGATIONS
[4] The specifics of this case are stated in the narrative of the claimant’s Basis of Claim (BOC) form, as amended. [3] In short, the claimant alleges that he fears persecution from state authorities due to his imputed anti-government political opinion.
[5] He alleges that:
· He went to the USA to study in 2018. His mother was friends with the wife and sister of XXXX XXXX, an XXXX XXXX exiled from Côte d’Ivoire. His mother was arrested on XXXX XXXX 2022, while the claimant was in the USA. She was subsequently imprisoned, accused of supporting the party “XXXX XXXX XXXX XXXX” (XXXX). She remains in prison to this day. The passports of his parents and siblings were confiscated by the authorities.
· His father’s XXXX XXXX was closed by the authorities, who alleged that they gave XXXX XXXX to militants and rebels. In the last XXXX XXXX, he discovered that the authorities are looking for his father, and that he has gone into hiding in Côte d’Ivoire.
· As his parents could no longer finance his studies in the USA, the claimant could not continue to study and live in the USA on his study permit. He believed that his refugee claim would be heard more fairly in Canada than in the USA. He came to Canada in XXXX of 2023, and submitted his claim shortly after arriving.
· He is gay, a realization that he came to while living in the USA. He dated a man there, but has not dated anyone in Canada due to the stress of his family situation. His mother is aware of his sexual orientation, but not his father, as his father is a very strict Christian man, who would react negatively. He testified that his father may react with violence, and may isolate him from the rest of the family.
DETERMINATION
[6] I find that the claimant has established that he is a Convention refugee pursuant to section 96 of the IRPA for the reasons that follow.
ANALYSIS
Identity
[7] I find that the claimant has established his personal identity, and national identity, on a balance of probabilities through his testimony and the identity documents provided, including a copy of his Ivorian passport.[4]
Credibility
[8] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.
[9] In this case, there is a credibility concern regarding omissions and discrepancies in the claimant’s original BoC, which I will explore below. However, I find that these omissions / discrepancies were reasonably explained. I find that there are no other material inconsistencies, omissions, or contradictions between his testimony and the other evidence in this case. The claimant testified in a straightforward, forthright, detailed, and spontaneous manner. He testified convincingly and compellingly as to the persecution of his family in Côte d’Ivoire for their ties to Mr. XXXX’s family. He did not embellish his allegations even when it may have appeared beneficial to do so.
[10] The claimant has additionally provided the following documents to corroborate his allegations:[5]
· The police summons issued for his mother.
· An email from his father, outlining the difficulties their family is facing.
· Proof of his immigration status in the USA.
· Articles about Mr. XXXX, and the persecution faced by his supporters in Côte d’Ivoire.
[11] I have no reason to doubt the authenticity of any of these documents. I find them to be probative and assign them full weight.
Original BoC Omissions and Discrepancies
[12] In this case, the claimant omitted several details from his original BoC form, which he later corrected in an amendment. In his original BoC, from January of 2023 he stated that he feared returning to Côte d’Ivoire because of his sexual orientation. However, he provided an amendment to his BoC in August of 2023, indicating that he actually feared returning to Côte d’Ivoire because of his family’s troubles with the authorities, and that he was not worried about returning because of his sexual orientation.
[13] He explained that members of the Ivorian community in Edmonton advised him not to tell the Canadian authorities about his family’s problems, because the Canadian authorities may contact the authorities in Côte d’Ivoire to verify his story, which would put him and his family at risk. He thereby focused his original BoC on his sexual orientation in an attempt to safeguard his family. Once he spoke to a lawyer, he was advised to disclose the full details of his family’s persecution, and the confidentiality of the proceedings was explained to him. He then submitted the BoC amendment.
[14] I accept the claimant’s explanation for this discrepancy as reasonable. He received poor advice, and wanted to safeguard himself and his family. Once he received appropriate advice from a lawyer, he amended his BoC and told the full details of his story to the Canadian authorities. I make no negative finding regarding credibility.
Conclusions on Credibility
[15] I find the claimant to be a credible witness, and I find that he has established his allegations on a balance of probabilities. Notably, I accept that he is a gay man, and that his family have been targeted by the authorities in Côte d’Ivoire on the basis of their ties to Mr. XXXX.
Nexus
[16] In order to satisfy the definition of a Convention refugee found in section 96 of the IRPA, a claimant must establish that he has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group, or political opinion.
[17] In this case, I find that the persecution the claimant fears has multiple nexuses to the Convention grounds of imputed political opinion, and membership in the particular social group of gay men. I will therefore be assessing this claim under section 96 of the IRPA.
Well-Founded Fear of Persecution
[18] I find the claimant faces a well-founded fear of persecution if returned to Côte d’Ivoire. There are two elements to a well-founded fear of persecution. The first is a subjective fear, and the second is the objective well-foundedness of that subjective fear.
Subjective Fear
[19] The claimant was living in the USA when his mother was arrested in XXXX of 2022, and his father’s XXXX closed. As his parents could no longer finance his studies in the USA, the claimant could not continue to study and live in the USA on his study permit. He believed that his refugee claim would be heard more fairly in Canada than in the USA.
[20] I accept his explanation for his failure to claim in the USA as reasonable. He fled the USA shortly after his mother was arrested, coming to Canada in XXXX of 2023, and claimed shortly after arrival. He spoke to his fear convincingly in the hearing. I find that, on a balance of probabilities, subjective fear has been established in this claim.
Objective Basis – SOGIESC
[21] Although the claimant did not specifically advance his claim on the basis of his sexual orientation, I find that he would face a serious possibility of persecution on this basis alone in Côte d’Ivoire. Although the Ivorian Penal Code does not explicitly criminalize LGBTQI+ practices, Article 360 of said code provides that whoever commits public indecency is liable to imprisonment from three months to two years, and a fine from CFA 50,000 to 500,000. The provision adds that if the public indecency is an indecent act, or an act against nature with an individual of the same gender, the term of imprisonment will be six months to two years and the fine shall be CFA 50,000 to 300,000. In October of 2016, two gay men were arrested and jailed in a city in the southwest for reasons that are not clear, but apparently for ‘public indecency.’[6]
[22] The EASO report confirmed that homophobia was present in the country and LGBTQI+ persons had to hide their homosexuality to avoid discrimination, violence, insults, and humiliation. They note that LGBTQI+ individuals are at risk of family rejection and loss of support networks, as feared by the claimant. Homophobic and transphobic behaviours are reportedly present at all levels of the administration. There have been large and violent anti-gay protests in the country, and perpetrators of homophobic attacks benefit from impunity.[7]
[23] A Response to Information Request (RIR) on the treatment of those with diverse sexual orientations in the country states that incidents of social discrimination against sexual and gender minorities in Côte d’Ivoire are common, and becoming the ‘cultural norm.’ Sources indicate that some LGBTQI+ individuals are forced to turn to prostitution to survive after being rejected by their families or community. They outline discrimination in access to healthcare, employment, housing, and education, alongside verbal, psychological, and physical assaults.[8]
[24] The claimant’s mother knows of his sexual orientation, but not his father. He fears that his father would react with violence, or that he would disown him from the family. He testified that it is not easy to live openly with a diverse sexual orientation in Côte d’Ivoire, and indicated that he personally knows 2 individuals who have been violently attacked for their sexual orientation there. He indicated that he is more afraid of the consequences of his family’s imputed political opinion; however, I find that his fear of persecution on the basis of his sexual orientation is well founded.
Objective Basis – Imputed Political Opinion
[25] The US Department of State (DOS) notes that within Côte d’Ivoire:
Significant human rights issues included credible reports of: forced disappearance; torture or cruel, inhuman or degrading treatment or punishment by the government; harsh and life-threatening prison conditions; arbitrary arrest or detentions; political prisoners or detainees; serious problems with the independence of the judiciary; […] and violence against lesbian, gay, bisexual, transgender, queer, or intersex persons.[9]
They go on to state that several associates of XXXX XXXX have been arbitrarily arrested, with Mr. XXXX himself living abroad in self-exile, having been sentenced in absentia to life imprisonment for “conspiracy, attempted attack on the authority of the state, and disseminating false news.”[10] This includes an aide, an activist close to him, and members of his political movement. Counsel has also provided several articles corroborating the sentencing of self-exiled Mr. XXXX, and the targeting of his associates.[11]
[26] Freedom House states that Côte d’Ivoire is a partly country, giving it a “freedom rating” – in terms of political rights and civil liberties – of 49 out of 100.[12] They note that there are numerous allegations of the detention of masses of political prisoners following the 2020 presidential elections. In response to the question “Are the people’s political choices free from domination by forces that are external to the political sphere, or by political forces that employ extrapolitical means?” [13] Freedom House gives Côte d’Ivoire a rating of 2 out of 4, citing intimidation, threats, and physical violence used to silence opposition. Security forces used violence to disperse protesters, and committed extrajudicial killings.
[27] The claimant has established, on a balance of probabilities, that his mother has been arrested for her imputed support of Mr. XXXX, their family’s XXXX closed, and that his father is now being sought by authorities. The family’s passports have been seized and they are not allowed to leave the country. I find that if the claimant were to return to Côte d’Ivoire, there is a serious possibility that he would also be viewed as a supporter of Mr. XXXX, due to his family ties, and that he would be at risk of being arbitrarily arrested or harmed on this basis.
[28] I find that the claimant’s fear of persecution on the basis of his imputed political opinion in Côte d’Ivoire is also well-founded.
State Protection
[29] I have considered whether adequate state protection is available to the claimant in Côte d’Ivoire and conclude that it is not. A state is presumed capable of protecting its citizens and to rebut this presumption a claimant must establish on a balance of probabilities with clear and convincing evidence that their state’s protection is inadequate.
[30] In this case, I do not find that the claimant could seek state protection because it is the state that the claimant fears for its human rights abuses and violations of fundamental freedoms. State agents persecute those of diverse SOGIESC throughout the country. The evidence in the NDP shows that corruption is endemic in Côte d’Ivoire, particularly affecting the judiciary, police and government contracting operations.[14] The US DOS notes that serious government corruption is one of the most significant issues in the country, and states that although the government took some steps to prosecute government officials and those in the security services accused of abuses, impunity remained an issue.[15] The state has arbitrarily arrested and imprisoned the claimant’s mother, have taken the passports of his family members, have closed his father’s business, and are currently searching for his father.
[31] Given that state agents are agents of harm in this case, I find that there is no adequate state protection available to the claimant. The presumption of state protection has been rebutted.
Internal Flight Alternative (IFA)
[32] The test for a viable IFA has two prongs. First, I must be satisfied that the claimant would not face a serious possibility of persecution and that he would not be personally subjected to a risk to life, of cruel and unusual treatment or punishment or danger of torture in the IFA. Second, I must be satisfied that it would not be unreasonable in all the circumstances, including those particular to the claimant, for him to seek refuge there. Once an IFA has been proposed, the onus is on the claimant to show that the IFA location is unreasonable, which requires the existence of conditions which would jeopardize his life and safety. I suggested Bouaké as a potential IFA at the hearing.
[33] Given that the state is an agent of persecution, and the state is in control of its entire territory, committing human rights abuses against perceived opponents and those of diverse SOGIESC throughout the country, I find that it is not safe for the claimant to relocate in Côte d’Ivoire. Accordingly, I find that there is no viable IFA available to him.
CONCLUSION
[34] For the foregoing reasons, I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA and I therefore accept his claim.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, May 2017, amended December 2021.
[3] Exhibits 2 & 4.
[4] Exhibit 1.
[5] Exhibits 5 & 6.
[6] Exhibit 3, National Documentation Package, Côte d’Ivoire, 31 August 2023, tab 1.7: EASO Country of Origin Information Report. Côte d’Ivoire: Country Focus. European Union. European Asylum Support Office. June 2019.
[7] Exhibit 3, National Documentation Package, Côte d’Ivoire, 31 August 2023, tab 1.7: EASO Country of Origin Information Report. Côte d’Ivoire: Country Focus. European Union. European Asylum Support Office. June 2019.
[8] Exhibit 3, National Documentation Package, Côte d’Ivoire, 31 August 2023, tab 6.1: Treatment of individuals with diverse sexual orientation and gender identity and expression (SOGIE) by society and authorities, including legislation, state protection and support services (2019–August 2021). Immigration and Refugee Board of Canada. 1 October 2021. CIV200766.FE.
[9] Exhibit 3, National Documentation Package, Côte d’Ivoire, 31 August 2023, tab 2.1: Cote d’Ivoire. Country Reports on Human Rights Practices for 2022. . United States. Department of State. 20 March 2023.
[10] Exhibit 3, National Documentation Package, Côte d’Ivoire, 31 August 2023, tab 2.1: Cote d’Ivoire. Country Reports on Human Rights Practices for 2022. . United States. Department of State. 20 March 2023.
[11] Exhibit 5.
[12] National Documentation Package, Côte d’Ivoire, 31 August 2023, tab 2.5: Côte d’Ivoire. Freedom in the World 2022. Freedom House. 2022.
[13] National Documentation Package, Côte d’Ivoire, 31 August 2023, tab 2.5: Côte d’Ivoire. Freedom in the World 2022. Freedom House. 2022.
[14] National Documentation Package, Côte d’Ivoire, 31 August 2023, tab 2.5: Côte d’Ivoire. Freedom in the World 2022. Freedom House. 2022.
[15] National Documentation Package, Côte d’Ivoire, 31 August 2023, tab 2.1: Cote d’Ivoire. Country Reports on Human Rights Practices for 2022. . United States. Department of State. 20 March 2023.