2024 RLLR 141

Citation: 2024 RLLR 141
Tribunal: Refugee Protection Division
Date of Decision: November 22, 2024
Panel: Philip Schwarz
Counsel for the Claimant(s): Michael Dorey
Country: Zimbabwe
RPD Number: TC4-02610
Associated RPD Number(s): N/A
ATIP Number: A-2025-00724
ATIP Pages: N/A

DECISION

XXXX XXXX XXXX is a Convention refugee. Your claim is accepted.

Summary of your Claim

[1] XXXX XXXX XXXX claims to be a citizen of Zimbabwe.

[2] You have asked for Canada’s protection. You allege that state authorities, as well as members of your community and extended family, will harass, arrest, beat, and abuse you because of your sexual orientation.

[3] In making my decision, I have considered and applied Guideline 9 on Proceedings before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.

Identity

You proved who you are and where you are from

[4] You have established your identity on a balance of probabilities. This means I believe it’s more likely than not that you are who you say you are. You established this through your testimony and documents, specifically: the certified true copy of your Zimbabwean passport in Exhibit 1 as well as your national registration card in Exhibit 5.

Convention Refugee

Your fear is linked to one of the grounds of persecution in the Refugee Convention

[5] There is a link between what you fear and one of the five the protection grounds listed in the Refugee Convention. Specifically, I find that your claim is connected to your: membership in a particular social group due to your sexual orientation as a lesbian.

[6] Since your claim is linked to a protected ground, I must determine whether you face a serious possibility of persecution in Zimbabwe.

Despite some issues, you proved important parts of your refugee claim

[7] I find that it is more likely than not that what you say happened to you in Zimbabwe did happen. Your testimony was straightforward and detailed. You testified about the homophobic society in Zimbabwe and how you used to be targeted and bullied for being different. This made you feel sad and afraid, wondering why you were not allowed to show the person you truly were. You described how you felt more natural dressing like a tomboy, and how others singled you out and suspected your sexual orientation. You testified about how in high school you realized you were developinf feelings for girls, and felt like getting closer and more intimate with them rather than boys. You described your first and only relationship with a woman, which was brief yet meaningful to you, and how you eventually felt forced to marry a man out of fear that refusing to do so would out you as lesbian. You described this relationship and how you came to Canada to escape it. You further described how, since being in Canada, you feel free of discrimination and that there is nothing stopping you from loving other women. While there was an inconsistency between your testimony and the letter from your former partner about how intimate you were together, you explained that she may have forgotten since this relationship did end in 2007 when you were both still very young. Considering this, as well as the short duration of this relationship, I find that this explanation is reasonable and does not outweigh the core elements of your claim. There were no important omissions or inconsistencies in your testimony or contradictions between that testimony and the other evidence before me which have not been satisfactorily explained.

[8] Guideline 9 states that an individual’s testimony may be the only evidence of their sexual orientation or gender identity. Despite this, I find your claim is supported by your personal documents, including: letters of support from your former partner, your mother, and your brother, as well as the West Island LGBTQ2+ Centre.

[9] Based on your evidence before me, I find you have established a subjective fear of persecution, meaning that you genuinely fear being harassed, arrested, beaten, and abused because of your sexual orientation. I find that the credible evidence that goes to the core of your claim outweighs any contrasting evidence.

Your risk is supported by the country conditions evidence

[10] What happened to you in Zimbabwe and what you fear might happen to you if you return to Zimbabwe is supported by evidence about the country conditions:

[11] Information in the NDP indicates that there is a prevailing climate of homophobia in Zimbabwe that puts LGBTQ individuals at risk of arbitrary arrest and detention, torture, sexual violence and death. LGBTQ individuals in Zimbabwe must conceal the identities to protect themselves, as even the suspicion that someone is LGBTQ would be sufficient to put them at risk of their life.

[12] According to item 2.1, while LGBTQ community leaders reported cases of state-sanctioned violence targeted at members of their community were lower than in the previous administration, the penal code continued to outlaw homosexuality. Members of the LGBTQ community continued to report homophobic attacks by the public, which the police did not investigate. Mistreatment faced by LGBTQ people includes blackmail, abuse by authorities, abuse by the community, refusal of health service by health care workers, high rates of unemployment and homelessness, and lack of access to education.

[13] According to item 6.2 of the NDP, the travel advice of the Government of Canada indicates that same-sex sexual acts are illegal in Zimbabwe. A US travel advisory for Zimbabwe notes that, while there is no explicit legal prohibition against sexual relations between women, societal violence and harassment against LGBTQ individuals is pervasive.

[14] Item 6.4 reports that LGBTQ individuals are frequently beaten, mocked, and forced to take bribes in order to escape custody. The same report notes that in the last few years there have been multiple reported instances where LGBTQ individuals in Zimbabwe have been physically assaulted by police officers while in police custody.

[15] Item 6.1 of the NDP indicates that the hostility towards sexual minorities and former president Robert Mugabe’s anti-gay rhetoric still prevails. The report states: “Such stigma and criminalization have forced samesex relations to be on the downlow, often increasing the spread of HIV/AIDS, depriving patients of proper medical care, since same-sex sexual acts are deemed ‘filthy’ in the eyes of many medical practitioners in Zimbabwe.”

[16] I therefore find you have established an objective basis for your fear.

State protection and internal flight alternative

You are not protected by your state or safe anywhere in Zimbabwe

[17] You have established that if you return to Zimbabwe you face a risk from state authorities. In the circumstances of your case, this means that there is no adequate state protection available to you in Zimbabwe because the objective evidence shows that the authorities will not protect you and you cannot be protected from them. State authorities are in control of its territory and have the capability to harm you anywhere within the country. In addition, regarding the internal flight alternative, Guideline 9 states that an IFA is not viable if an LGBTQ person must conceal their identity in order to live in that location, and I find this is the case in your situation. For this and the other reasons stated earlier, there is no internal flight alternative because there is nowhere safe for you to go within Zimbabwe.

Conclusion: your claim is accepted

[18] Based on all the evidence and my analysis, I determine that XXXX XXXX XXXX is a Convention refugee. I accept your claim.

——— REASONS CONCLUDED ———