2023 RLLR 98

Citation: 2023 RLLR 98
Tribunal: Refugee Protection Division
Date of Decision: May 5, 2023
Panel: Louis Gentile
Counsel for the Claimant(s): Idorenyin E. Amana
Country: Zimbabwe
RPD Number: TC2-23720
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]         MEMBER: This is the decision for the following claimant, XXXX XXXX XXXX, file number TC2-23720. I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally. In reaching this decision, the Panel applied Chairperson’s Guideline 9, proceedings before the Immigration and Refugee Board involving sexual orientation, gender identity and expression and sex characteristics. 

[2]         You are claiming to be a citizen of Zimbabwe and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. 

DETERMINATION

[3]         I find that you are a Convention refugee because you face a serious possibility of persecution for the following reasons. 

ALLEGATIONS

[4]         You allege the following. You are a transgender woman and victim of child sexual abuse who cannot live openly in Zimbabwe. You fear arrest, torture, murder or other ill treatment at the hands of the government family or community members, should you return to Zimbabwe, because of your gender identity. You allege that there is no state protection for you or any internal flight alternative. 

Identity

[5]         Your personal identity as a citizen of Zimbabwe has been established by your testimony and the supporting documents filed in the exhibits, including a certified true copy of your Zimbabwean birth certificate. I, therefore, find, on a balance of probabilities, that identity and country of nationality have been established. 

Nexus to Section 96 or Section 97

[6]         I find that there is a link between what you fear and one (1) of the five (5) Convention grounds, specifically your membership of a particular social group as a transgender woman. Therefore, this claim has been assessed under section 96.

Credibility

[7]         In terms of your general credibility, I have found you to be a credible witness and I, therefore, accept, on a balance of probabilities, what you have alleged in your oral testimony and in your Basis of Claim form. Your testimony is presumed to be true. In support of your claim, you provided documents in Exhibit number 6, including photos, letters of support and a letter from your Canadian doctor assisting with your XXXX XXXX XXXX XXXX, confirming your identity as a transgender woman. The Panel finds these documents to be consistent with your Basis of Claim and testimony and to be credible on a balance of probabilities. The Panel, therefore, assigns this evidence significant weight. 

[8]         Your testimony about your realization of your gender identity and what you fear you might happen to you if you return to Zimbabwe was also straightforward, seemingly unrehearsed, responsive to questioning and was in keeping with your Basis of Claim form and there were no significant inconsistencies or omissions. In reaching these findings, the Panel applied both Chairperson’s — applied Chairpersons’ Guideline 9, particularly, sections 6 and 7. I, therefore, believe what you have alleged in support of your claim and I find the following to be credible. 

[9]         That on a balance of probabilities, you are a transwoman form Zimbabwe and you have credibly established your subjective fear of persecution, including fear of severe physical violence at the hands of community members, widespread societal discrimination and verbal or physical abuse condoned or even encouraged by state actors. 

Persecution Risk

[10]      The objective documentation supports your allegations that individuals in your circumstance face persecution. 

[11]      One (1), the documentary evidence indicates that consensual same-sex conduct is criminalized in Zimbabwe and that there is a lack of investigation and accountability for gender-based violence, including crimes against women and girls. NDP 2.1, 2.2. 

[12]      Two (2), the documentary evidence indicates that LGBTI+ persons were vulnerable to blackmail because of the criminality and stigma associated with same-sex conduct. NDP 2.1.22, page 49.

[13]      Three (3), there were credible reports that LGBTI+ persons face discrimination in education and had higher rates of unemployment and homelessness. NDP 2.1.22 page 49.

[14]      Four (4), the documentary evidence indicates that Zimbabwean society holds a widespread discriminatory and violent attitude towards sexual and gender minorities. Senior public figures, including even a human rights commissioner, have issued hostile statements against LGBTI people. NDP 6.1.19 page 2.

[15]      Five (5), the documentary evidence also indicates that impunity for violators of human rights was widespread. NDP 2.1.22, page 2.

[16]      Six (6), homophobia permeates Zimbabwean society unchecked and manifests itself in different forms, ranging from verbal and physical assault to discrimination of LGBTI+ people on the basis of their sexual orientation or gender identity. NDP 6.2, page 5. 

[17]      Consequently, I find that there is a serious possibility that you could face arrest, imprisonment, torture and or serious physical harm should you return to Zimbabwe. I find that you have established an objective basis for your subjective fear, and therefore, you have a well-founded fear of persecution. 

State Protection

[18]      I find that adequate state protection would not be available to you were you to seek it in Zimbabwe. The objective documentary evidence indicates that the state police and security forces have effective reach throughout Zimbabwe and that same-sex conduct is criminalized in Zimbabwe and same-sex relationships, of any kind, are stigmatized and susceptible to violence with impunity and stigmatization. States are presumed to be capable of protecting their citizens, except in situations where the state is in a complete breakdown. 

[19]      However, based on the claimant’s personal circumstances, as well as the country documentation referred to above, the Panel finds, on a balance of probabilities, that the claimant has rebutted the presumption of state protection with clear and convincing evidence. Adequate state protection is not available to her as she fears persecution from agents of the state themselves, family members of the police and security forces, whose reach extends everywhere in Zimbabwe as well as from community members. 

Internal Flight Alternative 

[20]      I have also considered whether a viable internal flight alternative exists for you. The country documentation indicates that the situation for individuals in circumstances such as yours is the same throughout the country and that you would face a serious possibility of persecution or risk to life anywhere in Zimbabwe. The Panel finds, on a balance of probabilities, that there is a serious possibility of persecution of the claimant anywhere in Zimbabwe, were she to live openly, as is her fundamental right. As such, I find there is no viable internal flight alternative for you in Zimbabwe. 

CONCLUSION

[21]      Based on the totality of the evidence, I find the claimant to be a Convention refugee as she faces a serious possibility of persecution because of her membership of a particular social group as a transgender woman. Your claim is, therefore, accepted. 

——— REASONS CONCLUDED ———