2024 RLLR 101
Citation: 2024 RLLR 101
Tribunal: Refugee Protection Division
Date of Decision: April 26, 2024
Panel: R. Bafaro
Counsel for the Claimant(s): Evelyn Umudi
Country: Kenya
RPD Number: TC3-39563
Associated RPD Number(s): N/A
ATIP Number: A-2025-00611
ATIP Pages:N/A
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the refugee claim of XXXX XXXX XXXX, who alleges to be a citizen of Kenya, and is seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).
[2] This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the Act.
[3] In deciding this claim, I considered and applied Chairperson’s Guideline 9 – Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC). The purpose of the Chairperson’s Guideline 9 is to promote greater understanding of cases involving sexual orientation and gender identity and expression, and sexual characteristics (SOGIESC) and the harm individuals may face.
ALLEGATIONS
[4] The allegations are set out in the Basis of Claim form. The claimant alleges a serious possibility of persecution in Kenya because of her sexual orientation.
DECISIONS
[5] I find that the claimant faces a serious possibility of persecution because of her sexual orientation if she returns to Kenya and is, therefore, a Convention refugee pursuant to section 96 of the IRPA.
ANALYSIS
Identity
[6] I find that the claimant’s identity as a national of Kenya is established on a balance of probabilities by the copy of her passport in Exhibits 1 and 4.
Credibility
[7] Based on the documents in the file, including a detailed Basis of Claim narrative, I have noted no serious credibility issues. On a balance of probabilities, I find the following to be true:
[8] The claimant was born in Kenya on XXXX XXXX, 1997.
[9] After finishing primary school in 2011, the claimant was admitted to secondary school in 2012. The school was located in a rural area.
[10] She started exploring her interests in the arts.
[11] She joined the school drama club. During rehearsals, in 2013, she met a girl named XXXX, who was also part of the drama club.
[12] As the rehearsed for a play, the claimant and XXXX started talking more, and the claimant found that she was attracted to XXXX personality. This was in 2015, when the claimant was 18 years old.
[13] It wasn’t long before the claimant realized that she had developed feelings for her. They started dating secretly, sneaking moments alone during rehearsals to steal kisses and hold each other’s hands.
[14] One evening while they were enjoying each other’s company behind the canteen, the dining hall captain found them in XXXX 2016. She was angry and reported them to the school administration.
[15] The dining hall captain told the other girls who started calling them names and mistreating them. They were reprimanded by the school administration and were no longer allowed to be alone together.
[16] After being caught with XXXX, the claimant went through a lot of emotional and mental issues. She decided to break up with XXXX to avoid more trouble in school and with the administration. After the breakup, the claimant decided to focus on her studies.
[17] The claimant graduated from secondary school in 2016.
[18] Even after the breakup, the claimant still longed to be loved and missed XXXX terribly. They reconnected during the spring of 2017 and their relationship became stronger than ever.
[19] Unfortunately, their rekindled relationship was cut short when XXXX got admitted to university in XXXX 2018. They tried to keep their relationship alive, but it didn’t work out. They broke up again.
[20] In XXXX 2018, the claimant was going through a rough time emotionally and mentally and she missed XXXX a lot. She decided to visit her childhood friend, XXXX, to talk to him about what was going on in her life. As they talked, they ended up sleeping together. After that night, the claimant felt confused and ashamed of herself.
[21] The claimant had always identified as a lesbian, and this experience made her question her sexuality. Months later, she found out that she was pregnant. The claimant didn’t tell XXXX because he had gone back to university, and she didn’t want to interrupt his studies.
[22] In XXXX 2019, the claimant decided to enroll in a XXXX. In XXXX 2019, the claimant had to leave school to give birth to her daughter, XXXX.
[23] In XXXX 2020, the claimant went back to school. When COVID-19 broke out, the claimant had to go back home to make ends meet. It was during this time that she met a girl named XXXX. The claimant felt a connection to XXXX that she hadn’t felt before with other girls.
[24] Slowly, she started being attracted to XXXX and she realized that she was starting to develop feelings for her. The claimant was hesitant to share her feelings with XXXX at first. Eventually, she mustered the courage to tell XXXX how she felt. XXXX felt the same way about her.
[25] XXXX was an independent woman who had started her own business as a XXXX.
[26] With the encouragement of XXXX, the claimant started a small XXXX business in 2022.
[27] When the government finally reopened the borders and reopened schools in the winter of 2021, the claimant went back to school.
[28] On the evening of the claimant’s graduation in XXXX 2022, XXXX came to surprise her at her home, and they were overjoyed to see each other. They hugged and kissed passionately, not realizing that a neighbour was watching them.
[29] The neighbour made a scene and soon the other neighbours, the caretaker, and the landlord were all gathered rebuking them.
[30] The situation turned violent, and they were beaten mercilessly by the angry neighbours.
[31] The claimant was traumatized by the violence and the hate that she had experienced. The claimant was removed from the neighbourhood WhatsApp group, but she still got calls and messaging insulting her and threatening to kill her. The claimant struggled with XXXX and XXXX.
[32] In XXXX 2022, the claimant got a big XXXX gig for a bridal party that would earn her a lot of money. The claimant decided to deliver the food to the event herself.
[33] While there, the claimant met one of her former neighbours who was one of the invited guests. The neighbour started gossiping and telling everyone about her sexuality. The news spread quickly and almost everyone at the party knew about her sexuality.
[34] The person who had given the claimant the gig refused to pay her the balance because of her sexuality. Then the claimant started receiving threatening calls and messages. The claimant was scared and didn’t know what to do.
[35] The claimant and XXXX started looking for ways to leave the country. One travel agent advised the claimant to go to Canada where she would be safe and could live without fear of discrimination. Grace supported her financially and the claimant was able to apply for a Canadian visa.
[36] The claimant and XXXX decided that the claimant would go to Canada first because she had a child.
[37] The claimant fears that if she has to return to Kenya, she will continue to face persecution or even lose her life.
[38] The claimant left Kenya and arrived in Toronto, Canada on XXXX XXXX, 2023.
[39] The claimant submitted her refugee claim in Canada on or about May 18, 2023.
[40] I am of the view that, as set out in the updated Guideline 9 and the detailed discussion of Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC), complex situations such as that described by the claimant are credible especially in countries where homophobia and a lack of understanding of gender fluidity are still so prevalent.
[41] With the broad range and volume of refugee protection claims before the RPD, like all active participants in a complex administrative tribunal, I seek the best approach to balancing the interests of the claimant before the RPD , the legal protections provided by Canada pursuant to the Immigration and Refugee Protection Act (IRPA), the broader Canadian public interest engaged by the particular circumstances of each case, and the Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the Act.
[42] In the particular circumstances of this case, I find on a balance of probabilities that the events as set out by the claimant in her narrative are credible, and it is not unreasonable that she applied for a TRV without mentioning the real reason for fleeing to Canada.
[43] I therefore find that the claimant’s narrative explaining her subjective fear of persecution because of her sexual orientation was internally consistent and plausible. There were no relevant contradictions or omissions or improbabilities that go to the core of the claim.
[44] The allegations were supported by personal documents in Exhibit 5 that I find credible. These included additional identity documents, photographs of the claimant and her same-sex partner in Kenya, XXXX, photograph of the claimant participating at the Toronto Pride parade, photographs of the claimant showing affection towards another woman, XXXX, who is also a member of the LGBTQ community in Toronto, a letter from XXXX XXXX XXXX XXXX XXXX organization, establishing that the claimant registered with XXXX XXXX newcomer settlement department on XXXX XXXX, 2023, and completed XXXX XXXX newcomer information session on XXXX XXXX, 2023, that the claimant self-identifies as a member of the 2SLGBTQ+ community and has been accessing XXXX XXXX programs and services, including those specific to 2SLGBTQ-identified refugee claimants, a letter from XXXX XXXX, establishing that the claimant is a participant in their XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and has been a client of XXXX XXXX since XXXX XXXX, 2023, a letter of support and corroboration from the claimant’s same-sex partner, XXXX, in Kenya, a letter of support and corroboration from the claimant’s mother, XXXX, a letter of support and corroboration from the claimant’s brother, XXXX, a letter of support and corroboration from the claimant’s sister, XXXX, that together establish the central elements and allegations that form the basis for the claimant’s refugee claim in Canada and reasons why she would be at risk of persecution if she returned to Kenya.
[45] I accept the evidence as establishing, on a balance of probabilities, the claimant’s subjective fear of persecution from her homophobic community in Kenya due to her sexual orientation as a lesbian and membership in a particular social group.
Objective Basis
[46] I have examined closely the objective documentary evidence on country conditions in the 31 August 2023 National Documentation Package for Kenya (Exhibit 3). The material supports the conclusion that Kenya is a deeply homophobic society, and Kenyan citizens continue to be at serious risk from both state authorities and society generally, as a result of their sexual orientation.
[47] Item 2.1 – the US Department of State 2022 Human Rights Report – confirms that the penal code criminalizes same-sex activity and carries a penalty of up to fourteen years’ imprisonment. The following excerpt summarized the high risk of violence, and the inadequacy of state protection:
“Acts of Violence, Criminalization, and Other Abuses Based on Sexual Orientation, Gender Identity or Expression, or Sex (pp. 40-41):
Characteristics
Criminalization: The penal code criminalizes “carnal knowledge against the order of nature,” which was interpreted to prohibit consensual same-sex sexual conduct and specifies a maximum penalty of 14 years’ imprisonment if convicted, and seven years for “attempting” said conduct. The law also criminalizes acts of “gross indecency” between men, whether in public or in private, with five years’ imprisonment. Police detained persons under these laws, particularly persons suspected of prostitution, but released them shortly afterward. LGBTQI+ organizations reported police more frequently used general public-order laws (for example, disturbing the peace) to arrest or harass LGBTQI+ individuals. NGOs reported police frequently harassed, intimidated, or physically abused LGBTQI+ individuals in custody. They also reported police threatened gay men while in custody with forced anal examinations, which were outlawed in 2018.
Violence against LGBTQI+ Individuals: Nonstate actor violence and discrimination against LGBTQI+ individuals were widespread. In April, Sheila Adhiambo Lumumba, a nonbinary member of the LGBTQI+ community, was found dead at home after being raped, stabbed, and beaten. LGBTQI+ activists alleged the attack was due in part because Lumumba identified as a nonbinary lesbian and rejected the perpetrator’s sexual advances. Following an investigation, police arrested and charged a suspect in Lumumba’s killing but there was no date for the trial at year’s end. In May, media reported on the rape and killing of an intersex person in Trans-Nzoia County. Police had not charged anyone with these crimes at year’s end.
Discrimination: The constitution does not explicitly protect LGBTQI+ persons from discrimination based on sexual orientation, gender identity or expression, or sex characteristics, nor does it recognize LGBTQI+ individuals, couples, or their families (see next section for information on recognition of intersex persons). The law does not specifically recognize the rights of LGBTQI+ persons within the areas of housing, employment, education, or healthcare. …”
[48] See also Item 6.6: Country Policy and Information Note. Kenya: Sexual orientation and gender identity and expression. Version 3.0. United Kingdom. Home Office. April 2020.
[49] Having considered the totality of the documentary evidence, I find that the claimant has established, in the circumstances of this claim, a well-founded fear of persecution by reason of her lesbian sexual orientation if she returns to Kenya.
State Protection
[50] I find that the documentary evidence establishes that Kenyan police and authorities do not provide protection to LGBTQ+ persons suffering serious human rights abuses in Kenya, and in fact, persecute LGBTQI+ persons. It is therefore not reasonable for the claimant to ask for state protection, and I find that the claimant has rebutted the presumption of state protection with clear and convincing evidence.
Internal Flight Alternative
[51] I also find that that the objective country documentary evidence establishes that state authorities operate similarly throughout Kenya. I find that there is a serious possibility of persecution throughout Kenya due to the claimant’s lesbian sexual orientation. Therefore, I find that the claimant does not have a viable internal flight alternative within Kenya.
CONCLUSION
[52] I find that the claimant faces a serious possibility of persecution because of her sexual orientation if she returns to Kenya and is, therefore, a Convention refugee pursuant to section 96 of the IRPA.
[53] The claim is accepted.
——— REASONS CONCLUDED ———