2023 RLLR 269

Citation: 2023 RLLR 269
Tribunal: Refugee Protection Division
Date of Decision: December 15, 2023
Panel: Lauren Lalach
Counsel for the Claimant(s): N/A
Country: Tanzania
RPD Number: VC3-06949
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A

 

DECISION 

 

[1] MEMBER:  Okay, so I’ll begin now reading my reasons for the record.  I’m just noting the time.  Okay, so this is the decision of the Refugee Protection for the claim of protection of XXXX XXXX XXXX, a citizen of Tanzania.  She claims refugee protection in Canada pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act, herein referred to as the IRPA.  

 

[2] In assessing the case 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, herein referred to as SOGIESC.  An application of the SOGIESC Guidelines at the outset of the hearing I asked the claimant how she defined her sexual orientation and she identified herself as a lesbian.  I have thereby used this term in addressing the claimant’s sexuality throughout the remainder of this decision.

 

[3] I’ve also considered and applied the Guideline’s principles for assessing credibility in evidence pertaining to sexual orientation, gender identity and expression.  Further, I’ve taken into consideration, Chairperson’s Guideline 4, which is Women Refugee Claimants Fearing Gender-Related Persecution.  In part by paying particular attention to the social, cultural, traditional and religious norms and laws that affect women in Tanzania.

 

Allegations

 

[4] The claimant’s allegations are found in her Basis of Claim form and narrative.  In summary, the claimant alleges a fear of persecution as a lesbian woman in Tanzania.  The claimant alleges that she entered a relationship with a woman, who I will refer to as “A”, in 2010 while in secondary school.  The claimant and A were caught together, and they were expelled from school.  Their relationship ended at this time and the claimant was transferred to a mixed gender school.

 

[5] In 2018 the claimant and A rekindled their relationship after the claimant reached out to A on Facebook.  While they were returning home from the market together on XXXX XXXX, 2019, the claimant’s uncle saw the claimant’s uncle named XXXX (ph) saw them holding hands.  He began screaming and shouting at the claimant and A telling the claimant that he would beat her mercifully and be punished for wasting his money on her and embarrassing him.  The following day the claimant was attacked by six (6) men on the way home from school.  The claimant was beaten severely and woke up in XXXX XXXX XXXX XXXX.  She remained at the hospital for a period of XXXX XXXX XXXX XXXX XXXX.  During this period, her uncle and other unknown callers would contact her telling her that they were going to finish her off.  The claimant’s mother advised the claimant that it was her uncle who had orchestrated this attack.

 

[6] The claimant told A what had happened, and she connected the claimant with a friend who assisted the claimant in relocating and finding a place to stay in a different city while she made arrangements to flee Tanzania.  The claimant attempted to find a scholarship program that would allow her to study in the U.S. or Canada but could not find any available programs.  She made an application for a scholarship in Turkey and was accepted. 

 

[7] The claimant and A remained in a long distant relationship for the next four (4) years while the claimant studied in Turkey.  In XXXX 2022, the claimant received a call from a friend who informed her that A was cheating on her.  The claimant found out shortly later that A had been taken to the police station and her phone confiscated.  Fearing that the police would find evidence of their relationship on her phone, the claimant began looking again for ways to come to the U.S.A. or Canada.  Based on her GPA and exams score, she met the requirements for cultural exchange funded by the U.S. and Turkey governments.  The claimant returned to Tanzania briefly, only in order to make a visa application.  Her visa was issued, and she arrived in the U.S.A. on XXXX XXXX, 2022.  The claimant found out the next day that the police had come to her home in search of her.  

 

[8] The claimant remained in the U.S.A. for several months crossing into Canada on XXXX XXXX, 2022.  She initiated a claim for refugee protection shortly after.

 

DETERMINATION

 

[9] After considering the claimant’s testimony and the documentary evidence before me in its entirety, I find the claimant faces a serious possibility of persecution in Tanzania on the basis of her sexual orientation.  I, therefore, find that the claimant is a Convention refugee pursuant to section 96 of the IRPA, my reasons are as followed. (sic)

 

Identity

 

[10] The claimant’s personal and national identity of Tanzania is established on a balance of probabilities by the documentary evidence on file, including a certified true copy of her Tanzanian passport.

 

Nexus

 

[11] The claimant’s allegations establish a nexus to the Convention ground of particular social group, specifically, lesbian women.  I, therefore, analyzed this claim pursuant to section 96 of the IRPA.

 

Credibility

 

[12] Testimony provided under oath is presumed to be truthful unless there is a reason to doubt its truthfulness.  In this case, I have no reason to doubt the claimant’s credibility.  The claimant’s testimony was spontaneous and sincere and was consistent with the allegations contained within her Basis of Claim form.

 

[13] Throughout her testimony, the claimant demonstrated a willingness to ask for clarification when she did not understand the question, and was able to provide articulate and well considered responses that I found to be personalized and thoughtful.  Further, I found the claimant’s testimony today to be responsive and unembellished.  She had no trouble switching time periods — sorry, no trouble switching between time periods or topics while testifying and was able to fill in details of her Basis of Claim allegations when prompted for further information.

 

[14] The claimant testified in detail to her lived experience as a lesbian woman in Tanzania, speaking to how she discovered her sexuality while attending a girls only secondary school.  She spoke honestly and openly regarding coming to the realization that she was attracted to women, detailing denying these feelings and thinking her attraction to women could not be true.  However, her circle of friends were open and kind and with their encouragement and support the claimant came to realize that she could not, and should not, have to hide her feelings.

 

[15] When I questioned the claimant on her relationship with A she was able to spontaneously and candidly detail how they met, what attracted her to A, and the types of activities they did together, such as playing sports like rugby, cooking and studying together.  The claimant detained how there was little suspicion regarding their relationship during this time due to her attending an all girls school, explaining that it was normal to study, eat and spend the entirety of your day with other students.  The claimant also testified emotionally regarding the attack orchestrated by her uncle, discussing how difficult it has been to have this individual who she views as a father figure disown her and wish for her death.  

 

[16] Further, the claimant spoke to her activity since her arrival in Canada.  The claimant testified that she met XXXX (ph), a West African woman — oh, sorry, she met XXXX in a West-African WhatsApp group in XXXX of this year, and detailed how their relationship has progressed.  They now live together and enjoy spending time watching Korean drama, cooking and creating artwork.  

 

[17] The claimant also spoke candidly regarding her involvement in the XXXX XXXX in Edmonton.  Speaking in detail regarding the programs and activities that the centre offers and she participates in, and the benefits there are to her in accessing a community of people who she can speak with regarding her experiences.

 

[18] To corroborate her testimony the claimant provided ample documentary evidence.  Before me at Exhibit 4, I have a hospital discharge record indicating that the claimant was in the hospital from XXXX XXXX, 2019 to XXXX XXXX, 2018; and an affidavit accompanied by personal ID authored by the individual that assisted the claimant in departing in — departing Tanzania and securing a permit for Turkey; and a copy of the claimant’s scholarship offer and transcripts from her time studying in Turkey.

 

[19] In considering the claimant’s in-Canada activities, before me again at Exhibit 4 and 5, I have a letter of support and photographs authored by the claimant’s girlfriend in Canada attesting to the relationship, accompanied by photographs of them together.  I have a membership card and a support letter from the XXXX XXXX XXXX XXXX indicating the claimant has been an active member in the organization since XXXX 2023, and photographs of the claimant participating in activities at the XXXX XXXX in Edmonton.

 

[20] After careful review of these documents, I have no reason to doubt their authenticity and I place considerable weight on these documents and find them highly probative in supporting the claimant’s allegations.

 

[21] I canvased the claimant in regards to her failure to claim for protection in either Turkey, where she resided for a period of approximately four (4) years on a study permit, and the U.S.A., where she resided for several months.  In response the claimant stated that Turkey is a Conservative Muslim country, and it is impossible to live safely and freely as an LGBTQ individual there.  She explain that how in 2021 Turkey arrested 157 students for creating LGBTQ art, which made her fear for her safety.  She also spoke to the general attitudes towards refugees or asylum seekers in Turkey as she witnessed them making her feel that the environment there was hostile and unwelcoming.

 

[22] In regards to the U.S.A., the claimant testified that while she did originally intend to claim asylum, after researching and witnessing the violent targeting of the LGBTQ+ community, referencing specifically the Pulse Nightclub shooting, she made the decision to come to Canada as she considers it to be more LGBTQ+ friendly.

 

[23] I find that the claimant’s failure to apply for asylum in Turkey or the U.S.A. does not diminish her credibility, and I find she provided clear — as I find she’s provided clear and reasonable explanations with respect to not filing asylum claims in either Turkey or the U.S.A.

 

[24] Ultimately, I found the claimant’s evidence to be consistent and void of any major inconsistencies, and I’ve also given significant weight to the aforementioned documents.  In addition, I make no negative credibility finding regarding her failure to claim asylum in Turkey or the United States.  I find that the claimant has established on a balance of probabilities the central allegations in her claim for protection.  I accept on a balance of probabilities the claimant has established her identity as a lesbian woman.  I accept on a balance of probabilities that the claimant has faced assault orchestrated by her uncle as a result of him discovering her sexual identity.  And so, accordingly, I find on a balance of probabilities that the claimant has a genuine subjective fear of persecution in Tanzania.

 

Well-Founded Fear

 

[25] When assessing a claim for refugee protection we look at whether the claimants have a well-founded fear of persecution which involves both subjective fear elements, and a forward-facing objective basis for that fear.  Based on all of the evidence before me, I find on a balance of probabilities that the claimant has a well-founded fear of persecution should she return to Tanzania.

 

[26] The claimant testified that she was required to keep her sexual orientation in Tanzania a secret, citing that there’s no acceptance, protection or human rights for LGBTQ+ individuals in Tanzania.  Consensual same-sex sex activities are criminalized in Tanzania under section 154 of Chapter 16 of the country’s criminal code that addresses unnatural offences.  Those who are convicted of violating the law face between 30 years to life in prison.

 

[27] The objective evidence found in National Documentation Package, NDP 2.1, reports that the government engaged in serious human rights abuses, including crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender or intersexed persons.  The law does not prohibit discrimination based on sexual orientation and gender identity.  NDP item 6.2 describes respect for LGBTQ people has declined markedly in recent years.  In mid-2016 the government launched a crackdown on LGBTQ+ communities that has been escalating ever since.  LGBTQ+ people are forced to conceal their identities due to harsh or anti homosexuality legislation, together with the State representatives hostile public statements, social media persecution, widespread arrests, forced anal examinations during detentions, raids and threats of deregistration against non-government organizations for promotional activities, bans on the import and sale of lubricants, suspension of HIV or AIDS programs for gay men, and shut down of drop-in centres and private clinics that provide services to key populations.

 

[28] On October 29th, 2018, the Regional Commissioner for Dar es Salaam, Paul Makonda, announced plans to form a task force to identity and arrest LGBTQ+ people and asked members of the public to collaborate by reporting suspected gay people.

 

[29] The U.N. High Commissioner for Human Rights warned that it will be turned into a witch-hunt and is interpreted as a licence to carry out violence, intimidation, bullying, harassment and discrimination against those perceived to be LGBTQ+.  Tanzania’s President, John Magufuli, has also been quoted as saying, “Those who teach such things as advocating LGBTI equality do not like us brothers, they brought us drugs and homosexual practices that even cows disapprove of.” 

 

[30] Found at NDP item 6.1, 

 

Sexual minorities face discrimination from society in Tanzania.

 

[31] NDP 2.1 describes that,

 

LGBTQI+ persons faced societal discrimination that restricted their access to health care, including access to information regarding HIV, housing, and employment.

 

[32] I also note that under the SOGIESC Guidelines section 5.11, being compelled to conceal one (1)’s SOGIESC constitutes a serious interference with fundamental human rights that may, therefore, amount to persecution.  And the claimant cannot be expected to conceal their SOGIESC as a way to avoid persecution in their country of reference.

 

[33] The claimant has testified to this extent citing concealing her sexual orientation as a lesbian woman while living in Tanzania.  In summary, I am satisfied based on the claimant’s identity as a lesbian woman if she were to openly express her sexual orientation upon her return to Tanzania there is a serious possibility that she would be subjected to assault, hate crimes, societal stigma and discrimination, imprisonment and even death amounting to persecution.

 

[34] Based on all of the evidence before me, I find that the claimant has established a well-founded fear of persecution on account of her identity as a lesbian woman in Tanzania.

 

State Protection

 

[35] I’m satisfied that the presumption of state protection has been rebutted.  In reviewing the country conditions and state protection in Tanzania, there is objective evidence to demonstrate the police have outright failed in their responsibility to protect LGBTQ+ people.

 

[36] Found at item 2.1, Government Representatives have stated that homosexual practices are contrary to the law and cultural norms of Tanzanian society.  Police mistreat or harass sexual minorities on the regular.

 

[37] Further, while Human Rights Watch reported in June 2017 that the laws that punish same-sex relations are rarely applied, police and authorities use them as a pretext to extort, abuse and marginalize the LGBTQ+ community.

 

[38] And, finally, according to NDP 6.2, police often raided and arrested workshop participants who are promoting homosexuality, detained human rights lawyers and activists in an attempt to intimidate citizens from approached judicial institutions when their rights had been violated.  And, ultimately, creating an environment where it is unthinkable to hold the state accountable for human rights violations.

 

[39] Considering the state’s laws criminalizing same sex relationships, and the state’s interest in arbitrarily harassing, discriminating and detaining members of the LGBTQ+ community, I find that adequate state protection would not be reasonably forthcoming to the claimants.

 

Internal Flight Alternative

 

[40] I’ve also considered whether the claimant has an Internal Flight Alternative in Tanzania and I’ve concluded that she does not.  The situation for sexual minorities is prevalent throughout Tanzania.  I do not find the claimant could live safely elsewhere in Tanzania as the treatment of sexual minorities is similar across the country and the law criminalizing same-sex relationship applies throughout the entirety of the country.  I find the claimant will face a serious possibility of persecution throughout Tanzania.

 

CONCLUSION

 

[41] Having considered all of the evidence, I find that the claimant will face a serious possibility of persecution in Tanzania based on her membership in a particular social group as a lesbian woman.  I find the claimant to be a Convention refugee pursuant to section 96 of the IRPA, and I accept this claim.

 

[42] Okay, so those are the end of my decision.  I realize that that was a lot of information, and I do speak quickly.  Like I said, a copy of this will be sent to you by mail, so that will be written out.  So you can review it if you’d like.

 

——— REASONS CONCLUDED ———