2024 RLLR 25
Citation: 2024 RLLR 25
Tribunal: Refugee Protection Division
Date of Decision: March 18, 2024
Panel: Daphne Shamoun
Counsel for the Claimant(s): Ian G Mason
Country: Kenya
RPD Number: TC3-36488
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision for XXXX XXXX XXXX, file number TC3-36488, who claims to be a citizen of Kenya. You are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. In making this decision and during the conduct of the hearing I have considered and applied Guideline 9 Proceedings before the IRB involving Sexual Orientation and Gender Identity and Expression and Sex Characteristics.
DETERMINATION
[2] I find that you are a Convention refugee. Your allegations are found in your Basis of Claim form narrative and the amended narrative which are found at Exhibit 2.
[3] In summary you have alleged a fear of persecution stemming from your sexual orientation as a gay man and that you have had three (3) consensual same-sex relationships in Kenya which your last one is still on going. As sexual orientation is considered a particular social group, which is a Convention ground, your claim is assessed under section 96.
Identity
[4] Your personal identity as a citizen of Kenya has been established on a balance of probabilities by a copy of your Kenyan passport in Exhibit 1 and a copy of your birth certificate found at Exhibit 5.
Credibility
[5] I have found you to be a very credible witness in relation to your sexual identity. Your testimony was consistent, straightforward and in keeping with your Basis of Claim form narratives. You were asked several open-ended questions about your relationships such as how you met them, what you liked about them, what you did together and the threats that arose that led you to seek safety in Canada that would be expected to generate elaborate (ph) responses.
[6] You testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before the Panel. Therefore I find that the evidence of the same-sex relationship corroborates your profile as a gay man on a balance of probabilities.
[7] Your first relationship was when you were in secondary school. The testimony that you provided about this relationship is in line with what one would reasonably expect for a relationship of that duration at that age. There were no inconsistencies or omissions in any of this testimony and the evidence of the same-sex relationship corroborates your profile as a gay man on a balance of probabilities.
[8] You also testified about your second same-sex relationship, how you met and where you worked at XXXX (ph) XXXX together. You testified how he was your supervisor and this relationship lasted approximately two (2) years. You provided additional testimony about this individual such as the memorable moment that you – that he spoke highly of you in front of other co-workers at a team building event. I found that you were able to provide additional testimony without embellishing your claim.
[9] You also provided a support letter from this individual to which I assign full weight. There were no inconsistencies or omissions in any of your testimony and I find that the evidence of the same-sex relationship corroborates your profile as a gay man on a balance of probabilities.
[10] You also testified about your last same-sex relationship that is ongoing and long distance from XXXX 2022 as your partner is still in Kenya. Again the testimony you provided was in line with what one would reasonably expect for a relationship of that duration. There were no inconsistencies or omissions in any of your testimony and again you provided additional testimony about this individual such as a memorable moment of going on a long bike ride that was approximately 150 kilometres in distance from Eldoret (ph) to XXXX (ph) and then when you arrived at XXXX you looked at landscape, had food took pictures. I found again that you were able to provide additional testimony without embellishing your claim and you also provided a support letter from this individual to which I assign full weight and again the evidence of the same-sex relationship corroborates your profile as a gay man on a balance of probabilities.
[11] You also provided pictures of you attending PRIDE, being part of the XXXX, volunteering with PRIDE, e-mails and text messages between you and your current same-sex partner from Kenya which would reasonably expected. Again I found no issues with any of your documentary evidence and assign them full weight in establishing your allegations.
[12] In assessing your overall credibility I find that your testimony was consistent with someone whose sexual orientation did not conform to societal norms and expectations and did not comply with the national, legal requirements. So therefore I find you have established on a balance of probabilities your sexual orientation as a gay man.
Objective Basis
[13] The Kenyan Government has criminalized same-sex activity and actively persecutes members of the LGBTQ+ community via arbitrary arrests, violence and invasions and intrusions into their private lives. Individuals of diverse SOGIESC are commonly subjected to abuse, violent attacks, arbitrary arrests, forced rape and murder throughout Kenya by state actors, the Kenyan community and often members of their own family.
[14] Violence and discrimination against LGBTQ+ people is widespread and there has been an increase in conversion therapy and practices. Many LGBTQ+ people live in hostile home and community environments due to their sexual identities and orientation. Even LGBTQ+ rights, human rights defenders have been attacked, tortured and killed for their efforts and beliefs.
[15] The NDP also indicates that the state authorities continue to engage in arrests under section 162(a)(c) of the Kenyan Penal Code which prohibits individuals from engaging in same-sex relations and activities and this law is effectively – is effective countrywide. Therefore I found that you have a demonstrated a subjective fear of persecution in Kenya that is objectively well-founded.
State Protection
[16] As noted in section 8.6.4 of the SOGIESC Guideline 9 the existence of laws criminalizing non-conforming sexual orientations, sexual behaviours, gender identities or expressions, or sex characteristics and the enforcement of these laws by the state may be evidence that state protection is inadequate.
[17] The May 2021 U.N. Report indicates that individuals of diverse SOGIESC face barriers to assessing justice and remedies.
[18] The Human Rights Defender stated it is difficult for LGBTQ+ individuals (inaudible) police who thinks (inaudible) is illegitimate. As same-sex sexual activity is criminalized in Kenya and since homophobic violence continues with impunity I find that state protection would not be forthcoming as a gay man should you try to seek it upon return to Kenya. I find that there’s clear and convincing evidence that the state would be unwilling or unable to protect you – sorry, provide you with adequate protection in this case. So based on the foregoing I find that the presumption of adequate state protection is rebutted and that state protection does not exist for you.
IFA
[19] I must consider a two-prong test in order to determine the viability of an IFA location and both of these prongs must be satisfied for a finding that the claimant has a viable Internal Flight Alternative. I find that the test for IFA fails on its first prong. In Guideline 9, 8.7.1 it is well-established in law that an IFA is not viable if a SOGIESC individual must conceal their SOGIESC in order to live in that location. Given the state capacity, criminalization of same-sex conduct and homophobic attitudes that exists countrywide as outlined in the objective evidence earlier I find you would face persecution in all areas of Kenya. So therefore I find that there’s no viable IFA for you in Kenya and in your particular circumstances.
CONCLUSION
[20] I find you to be a Convention refugee and I accept your claim.
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