2024 RLLR 18
Citation: 2024 RLLR 18
Tribunal: Refugee Protection Division
Date of Decision: July 24, 2024
Panel: Olaolu Rosiji
Counsel for the Claimant(s): Robin Edoh
Country: Ghana
RPD Number: TC3-14912
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A
DECISION
[1] MEMBER: This is a decision of the Refugee Protection Division in the claim for XXXX XXXX XXXX XXXX, you alleged to be a citizen of Ghana and are seeking refugee protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[2] Your allegations are found in your Basis of Claim form and narrative.
[3] In summary, you allege that you fear persecution in Ghana due to your sexual orientation as a lesbian woman.
[4] After considering your testimony and the documentary evidence as well as that of your same-sex partner. I find that you are Convention refugee pursuant to section 96 of the Immigration Refugee Protection Act, as you have established a serious possibility of persecution in Ghana on the grounds of your membership into a particular social group, based on your sexual orientation, as a lesbian woman.
[5] In arriving at my decision, I considered and applied the Chairperson’s Guideline 9 on Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.
[6] Your personal and national identity as a citizen of Ghana has been established on a balance of probabilities by your testimony, as well as the documentary evidence on file, including a copy of your Ghanaian passport.
[7] I find that you have established a nexus to section 96 of the Immigration and Refugee Protection Act, as the persecution that you fear has a link to one (1) of the five (5) Convention grounds. Specifically, your membership into a particular social group, based on your sexual orientation as a lesbian woman and it is for this reason that your claim was assessed under section 96.
[8] I found you to be a credible witness and therefore believe what you have alleged in your oral testimony and Basis of Claim form. I found that there were no material inconsistencies, contradictions or omissions that were not reasonably explained such that the presumption of truthfulness could be rebutted.
[9] You identify as a lesbian. You explained that you discovered your feelings for the same sex when you are around 15 years of age. At that time, you noticed that unlike your peers, you are not interested in forming relationships with the opposite sex. Rather, you felt attracted to the same sex. You also spoke about your dressing and how you gravitated to more traditional masculine wear. You explained that your feelings and attractions towards the same sex made you sad, as you did not want to be different. As such, you would — sometimes you would get so sad that you would cry. You explained that you kept your attraction to the same sex as secret, as you had learned that same-sex relationships in Ghana was not acceptable.
[10] Based on your testimony, I find that you established on a balance of probabilities, how you came to discover your sexual orientation as a lesbian. While you did not enter into any same-sex relationships in Ghana, your family and community suspected that you were lesbian based on your behaviors, specifically your way of dressing, as well as your interest in keeping female friendships rather than male friendships.
[11] You testified that your family, especially your father, disliked you and currently refuses to speak with you as he does not accept you as well as your ways. He explained that he suspects that you are a lesbian based on your penchant for maintaining relationships with women rather than men, as well as your dressing, which was more masculine. You also explained that you are estranged from your siblings for the same reason.
[12] At the first hearing, you spoke about a number of incidents where you were confronted by your siblings regarding your sexual orientation. When they confronted you, they advised you to change your ways. They spoke to you as though you could stop being who you were. You explained that these confrontations and incidents worried you and you could not respond to them. You also spoke about being mistreated in other ways, such as being denied food in your home or having your peace disturbed. In a letter submitted to support your claim, your mother also outlined treatments that you received from your community as well as in school. She spoke about how you were taunted by other students and how teachers refused to intervene to stop the discrimination. Based on this, I find that your sexual orientation was discovered in Ghana and that you face persecution based on your sexual orientation and identity.
[13] I also asked you about whether you had a same-sex partner. You are currently in a same-sex relationship in Canada. You were able to explain to me how you met, how your relationship blossomed over time, and the activities that you enjoyed together. Your testimony about your relationship is in line with the level of detail I would reasonably expect in the circumstance. Your same-sex partner also testified about your relationship, and I found her testimony to be coherent and consistent. I therefore assign her testimony full weight in corroborating your allegations that you are both in a relationship in Canada.
[14] So, in summary I found your testimony to be credible and that you are currently in a same-sex relationship in Canada. I also find, on a balance of probabilities, that you are a lesbian woman. I therefore find that your evidence, that the allegations which form the basis of your subjective fear are, on a balance of probabilities, true.
[15] In addition, you provided the following documents, among others, which corroborated your claim and which I found persuasive in reaching my decision. So, these were pictures showing you and your current partner, a letter from your partner, as well as her testimony regarding your relationship, as well as a letter from your mother which confirmed that you are a lesbian, that your sexual orientation was discovered by members of your community, and that you have been discriminated against in Ghana. I give these documents full weight in corroborating your core allegations.
[16] Objective Basis
[17] The objective country reports are consistent with your testimony about the treatment you would receive if you were to return to Ghana. The National Documentation Package for Ghana confirms that sexual minorities, including lesbian women, face the possibility of widespread persecution in Ghana. Section 104 of the Ghanaian Criminal Code criminalizes the act of unnatural carnal knowledge, which is defined as sexual intercourse with a person in an unnatural manner. This offence covers persons engaged in same-sex relationships.
[18] At Item 6.1 (sic) of the NDP, the Human Rights Watch 2018 No Choice But to Deny Who I Am report, explains that while the law does not explicitly prohibit discrimination based on sexual orientation and gender identity, the criminalization of adult consensual same-sex acts in the country contributes to a claimant of frequent discrimination and violence against sexual minorities, both in public and in the family setting. Since 2010, opinion leaders and government officials have called for further criminalization of sexual minorities. For example, in 2017, the Speaker of Parliament referred to same-sex relationships as an abomination and called for stricter laws against same-sex conduct.
[19] The Human Rights Watch notes that such homophobic statements by government officials, local traditional leaders, and senior religious leaders contribute to the climate of homophobia, and in some cases incites violence towards people based on real or imputed sexual orientation or gender identity. This prevailing climate of homophobia in Ghana puts sexual minorities at risk of arbitrary arrest and detention, torture, sexual violence and even death. Sexual minorities in Ghana must conceal their identities to protect themselves, as even the suspicion that one is a sexual minority is enough to put themselves — to put them at risk of their life.
[20] Considering this, I find that your allegations regarding your risk of persecution in Ghana is credible and plausible in the context of the NDP, as well as the documents that you submitted. That said, based on the objective evidence that shows the persecution of sexual minorities in Ghana as well as your sexual orientation as a lesbian woman, I find, on a balance of probabilities, that there is an objective basis, to your subjective fear that you will face persecution in Ghana. I find that if you return to Ghana, you will be subject to discrimination which amounts to persecution, and therefore your fear is well-founded.
[21] Absent a complete breakdown in the state apparatus, there is a presumption that a state could protect its citizens, and you, as the claimant, bear the burden of rebutting that presumption with clear and convincing evidence. In this case, I find that it will be unreasonable to expect you to seek protection from the authorities in Ghana, as the objective evidence demonstrates that Ghanaian authorities are among the agents of persecution as they actively promote homophobia and hateful rhetoric against sexual minorities. You have therefore rebutted the presumption of state protection, and I find that there is no adequate state protection available for you in Ghana.
[22] I also considered whether a viable internal flight alternative exists for you. Again, the objective evidence confirms the oppressive treatment of sexual minorities nationwide and I am also guided by 8.7.1 of the SOGIESC guidelines, which indicates that an internal flight alternative is not viable if an individual must conceal their identity in order to live in that location. I therefore find that there is no viable internal flight alternative for you, as there is a serious possibility of persecution throughout the entire country, and that you would have to hide your identity in order to live in Ghana.
[23] So, for these reasons, I find that you, XXXX XXXX XXXX XXXX, face a serious possibility of persecution in Ghana on the basis of your sexual orientation as a lesbian woman, and based on this, I have accepted your claim.
——— REASONS CONCLUDED ———