2024 RLLR 140

Citation: 2024 RLLR 140
Tribunal: Refugee Protection Division
Date of Decision: June 19, 2024
Panel: Adedeji Quadri
Counsel for the Claimant(s): Justin Andrew Heller
Country: Kenya
RPD Number: TC3-45793
Associated RPD Number(s): N/A
ATIP Number: A-2025-00724
ATIP Pages: N/A

REASONS FOR DECISION

[1] These are the reasons for the decision in the claim for refugee protection of XXXX XXXX XXXX, a citizen of Kenya seeking refugee protection pursuant to sections 96 and 97 (1) of the Immigration and Refugee Protection Act (the Act).[1]

ALLEGATIONS

[2] The allegations of your claim are fully set out in your Basis of Claim forms and in the narrative in detail. To summarize, you allege that you are a lesbian woman and cannot live openly and safely as an LGBTQ person in Kenya. That’s because of your sexual orientation, you fear persecution from the authorities in Kenya as well as the community.

[3] In hearing your claim, I have considered and applied Chairperson’s Guideline 9, which addresses the issues concerning sexual orientation.[2]

DETERMINATION

[4] I find that you have established that you face a serious possibility of persecution and as such is a convention refugee because of a nexus ground, specifically being a member of a particular social group as provided in section 96 of the Immigration and Refugee Protection Act.[3]

ANALYSIS

Identity

[5] Your personal identity as a citizen of Kenya has been established by your testimony and your Kenyan passport on file. I find on a balance of probabilities that personal identity and country of reference have been established.

Credibility

[6] The standard of proof for assessing evidence as well as credibility is a balance of probabilities, that is, is the evidence (testimony) more likely than not true. Overall, I find you to be a credible witness and I believe what you are alleging. Your testimony was clear, compelling, and consistent.

[7] I find that you have established the core elements of your claim on a balance of probabilities:

i. That you are a Lesbian, and

ii. that you fear serious risk of harm because of your sexual orientation in Kenya at the hands of the authorities and the society.

[8] Your testimony was largely consistent with your narrative as well as the evidence proffered in support of your claim. Panel asked you when you realised that you are a lesbian, you responded that though you had found the transformation the female body undergoes interesting when you were about twelve years old, you developed attraction and what you considered as sexual and romantic feelings for girls when you joined high school at the age of fourteen years. Panel also asked you how you felt about being attracted to females and you responded that at first you felt different because the understanding that society and the church gave you is that same sex attraction is a sin. That with time, you came to understand that it is normal for you to feel the way you do and that nothing is wrong with you. This testimony about your sexuality is quite consistent with your narrative and as such, I find it, on a balance of probabilities credible.

[9] Regarding when you started having issues in Kenya, you testified at length about how in February 2021 you and CH, your same-sex partner then told your friends about your relationship and your parents in November 2021 also. When asked by panel why you told your friends, you responded that these were long time friends who you were close to and trusted. However, you discovered that these girls started distancing themselves from you and CH. That because you believed they might tell your parents before you do, you and CH decided to tell your parents because you were afraid of how they will feel if they heard from your friends.

[10] You testified that your parents did not take it well when you told them. You talked about the fact that your mother threatened to disown you if you refused to discontinue the relationship and that both your parents threatened to report you and CH to the police. You testified about how after the meeting when you and CH informed your parents, they came to the house in Kiambu where you and CH lived together and had an argument with your landlord, who they accused of condoning your relationship by harboring you. That this encounter became chaotic to the point that your neighbors also discovered your relationship, and that when it seems that you may be attacked by the landlord and your neighbors, you and CH had to flee. You talked about how you initially went to Nairobi but had to move to Mombasa in March 2023 because of the fear you continuously had as Nairobi was clearly unsafe for someone with your sexual orientation as you felt you could be discovered there easily by your family. Your provision of additional details about these issues were very spontaneous. I accept this testimony, and I find it credible on a balance of probabilities.

[11] The above facts were corroborated by letters from CH, your same-sex partner in Kenya, CHT, your friend you stayed with at Nairobi, and CT, your aunt. CH in her letter recounts the challenges you and her faced subsequently when you told your parents and how they instigated the rest of your families to turn on you. And how you both had to keep a low profile afterwards because of the constant fear of harm from your families and society. Your aunt in her letter talked about how your mum was greatly disappointed and how she is being berated by the rest of the family for raising you badly because of your sexual identity.

[12] These accounts are consistent with your testimony, and I have no reason to doubt these letters. I attach full weight to them as they corroborate your allegation about the exposure of your sexual identity and the fear of violence or discrimination you can face as a result.

[13] You testified about details of your relationship with CH, providing a very good amount of detail. This is corroborated by the information you provided in your narrative about your relationship with her. When asked what you liked about CH, you mentioned her being a loving person and described her as adventurous and fun-loving. You talked about how you both enjoy hiking and going on field trips with your church’s youth group. I find your testimony, on a balance of probabilities to be credible.

[14] When questions about your life in Canada were put to you, you were consistent and there were no material discrepancies between your testimony and the evidence before the member. You testified that you are currently in a relationship with JT, who you met through a mutual friend ML. You testified that you and JT started dating in January 2024 and she helped you to get a job at her workplace. Panel asked why you did not make mention of your relationship with JT in your narrative, and you responded that you were not in a relationship with JT at the time you wrote your narrative. Panel also asked you if you considered asking JT to be a witness at the hearing, you responded that JT did make a request with her workplace for time to be at the hearing but could not get the time off. Your testimony was clear, spontaneous, and consistent with your narrative. I find it credible on a balance of probabilities.

[15] Panel asked you if you have participated in any LGBTIQ+ related activities since you came to Canada. You testified about your membership of the XXXX as well as participating in online sessions with an organization known as the XXXX XXXX. You also talked about your volunteer work with XXXX XXXX. You testified about how much participating in these activities has helped you to express yourself without fear, and that for the first time, you have high hopes for yourself.

[16] The above facts are supported by letters from JT, your current partner as well as letters from XXXX confirming your membership and XXXX XXXX XXXX XXXX with regards to your volunteer work. These letters provide accounts that are consistent with your testimony regarding your relationship with JT as well as your participation in LGBTIQ+ related activities in Canada. I give full weight to these letters as I have no reason to doubt them. I find that you have established your relationship with JT as well your participation in LGBTIQ+ activities in Canada on a balance of probabilities.

[17] I therefore accept the totality of your testimony and find that you have established that you are a lesbian on a balance of probabilities.

Well-Founded Fear of Persecution

[18] Your subjective fear is established by your credible and corroborated testimony. I also find that your claim is objectively well founded. Objective basis for this can be found in items 2.1, 6.1, 6.2, 6.3, 6.5 and 6.6 in the National Documentation Package for Kenya[4]. Specifically, I note that same sex sexual activity is criminalized under Sections 162, 163, and 165 of Kenyan Penal Code, which sets out a sentence of up to 14 years for carnal knowledge against the order of nature. This criminalization of same-sex sexual activity was upheld by a High Court of Kenya decision in 2019. In addition, while there are some indications that attitudes towards SOGIESC individuals in Kenya are improving, stigma against sexual minorities remains deeply entrenched. The stigma is reinforced by those who hold the highest level of political office in Kenya, including former President Kenyatta, who in a 2018 interview, stated that Kenya does not consider gay rights relevant as it goes against the cultural belief of Kenyans.

[19] Sources also note that violence and discrimination against SOGIESC individuals in Kenya is widespread and includes risks such as mob violence, blackmail by organized crime, prohibitions against and regarding adoptions, and employment discrimination. SOGIESC individuals also face difficulties in obtaining assistance from the authorities, and reports indicate that SOGIESC individuals have faced harassment, sexual and physical assault by the police in the past.

[20] Based on the objective documentation cited, I find that as a lesbian, you have demonstrated a well-founded forward-facing fear of persecution should you return to Kenya.

State Protection

[21] There is a presumption that a state has the capability to protect its citizens. A claimant can rebut that presumption, on the balance of probabilities, with clear and convincing evidence.

[22] With regards to state protection, the preponderance of the evidence indicate that the police often refuse to act in cases involving the LGBTQ community. Where a lesbian is at risk of persecution or serious harm, the state authorities do not provide them with a sufficiency of protection. The UK Home Office Report for 2020 at Item 6.6 states that NGOs reported police frequently harassed, intimidated, or physically abused LGBTQ individuals in custody. As mentioned earlier, the law in Kenya criminalizes same sex relationships and it is not reasonable to expect police protection for harassment and discrimination arising from sexual orientation.

[23] I am persuaded and find it would be unreasonable to expect you to seek protection from the Kenyan police and authorities as in some cases they may be the agents of persecution. You have therefore rebutted the presumption of protection. Accordingly, I find that there is no adequate or operationally effective state protection available to you in Kenya.

Internal Flight Alternative

[24] Country documentation indicates that LGBTQ individuals face persecution throughout Kenya and same sex acts are criminalized throughout the country. I find that there is a serious possibility of persecution in all parts of the country because the law, the authorities and the societal attitudes operate similarly throughout the whole country. I therefore find there is no viable Internal Flight Alternative for you in Kenya.

CONCLUSION

[25] Based on the totality of evidence, I find the claimant has demonstrated that she faces a serious possibility of persecution in Kenya. I find that the claimant is a convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act and your claim for protection is accepted.

——— REASONS CONCLUDED ———

[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27

[2] Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, 1 May 2017, revised 17 December 2021.

[3] Ibid

[4] National Documentation Package, Kenya, 31 August 2023