2024 RLLR 134
Citation: 2024 RLLR 134
Tribunal: Refugee Protection Division
Date of Decision: March 7, 2024
Panel: Olaolu Rosiji
Counsel for the Claimant(s): Roy C Amadi
Country: Zimbabwe
RPD Number: TC3-06979
Associated RPD Number(s): N/A
ATIP Number: A-2025-00724
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division in the claim for refugee protection for XXXX XXXX.
[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.
[3] In coming to my decision, I have considered and applied the Chairpersons Guideline 9 on Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.
[4] This guideline assists in assessing the key evidentiary elements in determining the harm individuals may face due to their sexual orientation or gender identity.
[5] Your allegations are fully set out in your Basis of Claim form and narrative.
[6] In summary, you fear persecution and risk to your life in Zimbabwe on the basis of your sexual orientation as a bisexual woman.
[7] After considering your testimony and the documentary evidence, I find that you face a serious possibility of persecution in Zimbabwe on the basis of your sexual orientation as a bisexual woman. I therefore find that you are a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act and I accept your claim.
[8] Your personal identity as a citizen of Zimbabwe has been established on a balance of probabilities by your testimony and a copy of your Zimbabwean passport.
Nexus
[9] I find that there is a link between what you fear and one (1) of the Convention grounds as you are a member of a particular social group, namely bisexual woman, and it is for this reason that your claim was assessed under section 96 of the Immigration and Refugee Protection Act.
[10] I found you to be a credible witness and therefore believe what you have alleged in your oral testimony and Basis of Claim form. Throughout the hearing, you were articulate, responsive, and forthright. You were able to elaborate on your narrative and give explanations to the questions asked. There were no material inconsistencies, contradictions, or omissions that were not reasonably explained such that the presumption of truthfulness could be rebutted.
[11] You identify as a bisexual woman. You explained that you realized that you were a bisexual when you were around 20 years of age when you started having desires towards women. You explained that you reached this realization when you would complement your female friends and felt that there was more behind the complement. You gave the example of an incident where you complemented a friend for lipstick that she had applied. You added that you liked the lipstick and found yourself fantasizing about her lips wishing you could kiss them and wishing that you could have your friend to yourself. You also testified about how you would fantasize over the bodies of your female friends. You explained that these thoughts made you feel happy but at the same time you were afraid to express them as same sex relationships are not acceptable in Zimbabwe. You explained that the Zimbabwean constitution was against same sex relationships. Also, you had also learned from church, school, as well as from the general attitudes in society that any relationship other than with the opposite sex was not accepted.
[12] Based on your credible testimony, I find that you’ve established on a balance of probabilities how you came to discover your sexual orientation as a bisexual woman.
[13] You testified that the only person that you told about your sexuality was your good friend, C. You explained that you felt comfortable opening up to her as you sincerely believed that C. also had the same feelings towards you. You explained how C was often playful around you and would sometimes hit your derriere and give you back massages. You also testified that C reacted positively when you expressed your feelings towards her and the two (2) of you shared a kiss.
[14] Unfortunately, you were both caught being intimate by a friend who spread the news across the campus that you were bisexual. In the days that followed, you were harassed and insulted by your colleagues. You also received death threats. As your life was in danger, you did not leave your apartment for two (2) days until you were picked up by your parents who ultimately took you home. You dropped out of XXXX due to this incident. Your family members were also harassed on multiple occasions and your home was vandalized by community members. It is in this context that you fled Zimbabwe.
[15] Based on your credible testimony as well as the documentary evidence, I find on a balance of probabilities that you had a same sex encounter in Zimbabwe and that your sexual orientation was discovered while you were in Zimbabwe.
[16] While you’re not currently in a relationship in Canada, you are very active in the LGBTQ [2SLGBTQI+] community and you’re an active member of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, as well as the XXXX XXXX XXXX XXXX XXXX XXXX XXXX.
[17] I questioned you about your implications in these organizations and you described in detail about the events that you have taken, that you have been a part of, what these organizations mean to you and the LGBTQ community in general, as well as your intentions to hold an executive position at the XXXX XXXX XXXX XXXX. You also testified that you sent financial contributions to the XXXX XXXX XXXX XXXX as you hoped that they will be able to bring about positive change in Zimbabwe in the legislation such that it would be, such that the country would be more accepting towards sexual minorities. Based on your credible testimony, I find on a balance of probabilities that you are a bisexual woman.
[18] I also find that your evidence is credible and that the allegations which form the basis of your subjective fear are on a balance of probabilities true.
[19] You also provided documents among others which corroborate your claim and that I found persuasive in reaching my decision. These documents are a letter from the LGBTQ organization in Zimbabwe confirming that you are a supporting member of the organization since XXXX 2022 and that you continue to contribute to the organization financial, financially, and gifts. There was also a letter from the XXXX XXXX XXXX XXXX confirming that you are an active member of their organization, as well as a letter from XXXX XXXX organization confirming the same.
[20] Also included in the documentary evidence were pictures showing you with your friend C, pictures showing you at LGBTQ2S events in Canada, a sworn declaration from your mother confirming that you were in a same sex encounter in Zimbabwe, that your sexual orientation was discovered by members of your community and that you were persecuted in Zimbabwe. In this letter, your mother goes on to explain that on XXXX XXXX, 2023, a group of five (5) men went looking for you at her residence. She also explained that your home was vandalized on multiple occasions. Finally, there was a letter from your friend, C, who confirmed that you both shared an intimate moment and were discovered by a mutual friend. C now resides in Botswana as she also fled Zimbabwe following the incident.
[21] So, to summarize, I find your evidence to be credible and that the allegations which form the basis of your subjective fear are on a balance of probabilities true. I also find that you are a bisexual woman and that you were persecuted in Zimbabwe because of your sexual orientation.
[22] I find that your fear for returning to Zimbabwe as a bisexual individual is supported by the objective evidence that is found in the National Documentation Package. The documentary evidence in the NDP indicates that same sex sexual activity is illegal in Zimbabwe. Section 73 of the Criminal Law Act which became effective in July 2006 criminalizes same sex sexual behaviour.
[23] According to the U.S. Department of State, LGBTQ individuals are vulnerable to blackmail because of the criminalization of and stigma against same sex activity. LGBTQ advocacy organizations reported blackmail and being outed as two (2) of the most common forms of repression of sexual minorities. It is common for blackmailers to threaten to reveal a victim’s sexual identity to police, the church, employers, or family if the victim refuses to pay a sum.
[24] The United States Department of State Report at item 2.1 states that sexual minorities reported societal discrimination and abuse as recently as 2022. According to a submission by GALZ, homophobia permeates Zimbabwean society unchecked and manifests itself in different forms ranging from verbal and physical assault to discrimination of people on the basis of their sexual identity and gender identity; thus, the objective documentation supports your explanation of how you would be treated by your community if you were to return to Zimbabwe.
[25] I am also guided by 8.5.1 of the Guideline 9 which confirms that being compelled to conceal one’s sexual identity constitutes a serious interference with one’s fundamental human rights which may amount to persecution. In this regard, I find that, I find on a balance of probabilities that you would need to conceal your sexual identity if you wanted to avoid discrimination and stigma in Zimbabwe.
[26] In conclusion, I find that your subjective fear of a return to Zimbabwe as a bisexual individual is objectively supported by the documentary evidence. I thus accept that you will face a serious possibility of persecution in Zimbabgwe due to your sexual orientation and that your fear is well founded.
State Protection
[27] The evidence demonstrates that state authorities including police and government officials at the highest level are among the agents of persecution. I therefore find that it would be unreasonable to expect you to seek protection from the authorities in Zimbabwe. As such, I find that you have rebutted the presumption of state protection and I find that there is no adequate state protection available for you in Zimbabwe.
[28] I also considered whether there will be a viable Internal Flight Alternative for you and again, as the federal government is the agent of persecution and has an effective control of its territory, you would face a serious possibility of persecution throughout the country.
[29] For this reason, there is no viable Internal Flight Alternative for you in Zimbabwe.
[30] So, for these reasons, I find that you, XXXX XXXX, are a Convention refugee as set out in section 96 of the Immigration and Refugee Protection Act as you face a serious possibility of persecution in Zimbabwe. Therefore, your claim has been accepted.
——— REASONS CONCLUDED ———