2024 RLLR 40

Citation: 2024 RLLR 40
Tribunal: Refugee Protection Division
Date of Decision: August 7, 2024
Panel: Joseph Berkovits
Counsel for the Claimant(s): James Hill Lawson
Country: Uzbekistan
RPD Number: TC2-33729
Associated RPD Number(s): N/A
ATIP Number: A-2025-00128
ATIP Pages: N/A

REASONS FOR DECISION

[1] XXXX XXXX XXXX XXXX, a citizen of Uzbekistan, (the claimant), claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, (the IRPA).

[2] The panel has considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.[1]

[3] The names of all third parties have been redacted to their initials for safety and privacy reasons.

DECISION

[4] For the reasons given below, the panel finds that the claimant is a Convention refugee because he has established that he faces a serious possibility of persecution should he return to Uzbekistan on the grounds of his membership in a particular social group, bisexual men.

ALLEGATIONS

[5] The claimant alleges that, in summary, that as a bisexual man, he cannot live safely and freely in Uzbekistan.

Identity

[6] The claimant’s personal identity as a citizen of Uzbekistan has been established by a certified copy of his passport.

[7] The panel therefore finds that the claimant has established his identity, on a balance of probabilities.

Nexus

[8] Given the claimant’s allegations, his claim will be assessed pursuant to section 96 of the IRPA, with the nexus being his membership in a particular social group: bisexual men.

Credibility

[9] When a claimant swears or solemnly affirms that certain facts are true, this creates a presumption that they are true, unless there is valid reason to doubt their truthfulness. Hence, as a corollary, there is no general legal requirement for a claimant to corroborate sworn or solemnly affirmed testimony that is uncontradicted and otherwise credible.

[10] In terms of the claimant’s general credibility, and in light of the evidence below, the panel has found him to be a credible witness and the panel therefore accepts what he has alleged in his oral testimony and in his basis of claim form. The panel found his testimony to be credible because there were no major contradictions or omissions that went to the core of his claim, and because his testimony was spontaneous and detailed. Additionally, the panel found his corroborative evidence to be reliable and trustworthy, and as such, the panel assigns it full weight in supporting the claimant’s credibility in relation to his allegations.

[11] In his detailed narrative and in his testimony, the claimant provided a credible account of his life experiences as a bisexual man in Uzbekistan. The claimant testified, credibly, that from a young age, he remembered how he encountered negative attitudes towards persons who were not heterosexual, and this made him feel fearful. In his narrative and in his testimony, the claimant also detailed how he grew up in an abusive environment and a climate of fear because of his father’s treatment of himself and his family members, which, the claimant detailed, was exacerbated by his father’s XXXX. As the claimant testified, credibly, when he was about 16 or 17, he first developed feelings for another male, MM. The claimant testified, credibly, about the depth of his feelings for MM, detailing how he found him to be attractive, intelligent and generous. By way of corroboration of their longtime relationship, the claimant provided a number of photos of them together in various social situations over the years, and he also testified credibly about the events depicted in these photos.[2] According to the claimant, throughout the longtime relationship that he developed with MM, which lasted from 2010 to 2022, he feared not only the harmful reactions of society, which he knew were hostile to same sex relationships, but those of his father as well.

[12] As the claimant testified, credibly, he was fearful of his father’s suspicions about his relationship with MM and his father’s subsequent threats that he would report the claimant to the police, as well as tell community members about his sexual orientation, if he did not marry a woman. The claimant also detailed how his father made abusive and homophobic comments about both him and his partner. As the claimant testified, credibly, that as a result, he commenced a relationship with a female, KK, and he testified about how he ultimately married her, loved her and had a family with her. However, as the claimant confirmed, he continued to see his male partner MM, for whom he testified, credibly, he still had strong feelings for, notwithstanding how unsafe he felt in the country as a bisexual man. According to the claimant, he saw MM as secretly as he could.

[13] In his narrative and in his testimony, the claimant also detailed how he and his partner, MM, were attacked in XXXX of 2022, when they attended a club together, and were assaulted by a group of some seven men who uttered homophobic slurs against them in what amounted to a hate crime and injured them so badly that they both needed hospitalization. As the claimant testified, credibly, he was too fearful of the police to report this attack, given the homophobic attitudes of the police and their enforcement of the homophobic laws in Uzbekistan. As the claimant also testified, credibly, in the wake of this assault, he became fearful of going outside, even to go on a walk with his daughter, because he realized that because of this recent assault, news of his sexual orientation had reached members of his community. The claimant also testified, credibly, that he was compelled to end his relationship with MM at that point, out of fear for their safety. The claimant also detailed how, in the wake of community members finding out about his sexual orientation, his wife was supportive of him. However, as the claimant testified, credibly, he no longer felt safe in Uzbekistan and commenced to make arrangements to leave the country.

[14] As the Chairperson’s Guideline 9 advises, LGBTQIAS2+ people can often encounter significant challenges in obtaining evidence from the homophobic countries that they have come from, which can sometimes make their credible testimony the best and only substantiation of their claims.[3] Nevertheless, the claimant was, in this instance, able to provide a number of documents that were corroborative of his circumstances in Uzbekistan. In a detailed letter provided by his longtime partner, MM, MM states, in part, “[The claimant] had a problematic relationship with his father, because of which he suffered greatly… Out of fear of being blackmailed and arrested, [the claimant] and I had to get girlfriends, although we had no such desire. After that, we continued to be in a relationship until we were attacked by homophobes…After that incident, we both had to seek medical help and ended our relationship in order to avoid further problems. [The claimant] had to leave Uzbekistan because he was afraid that rumours about his orientation… would spread and reach the authorities which could result in his imprisonment.”[4] The claimant’s mother, who ultimately came to Canada prior to the claimant’s arrival, also wrote a letter that confirmed much of the personal circumstances that the claimant described in Uzbekistan, stating, in part, that” “My family suffered greatly due to the aggressiveness of my ex-husband, related to XXXX…. I found out about his orientation from my youngest son… while I was already in Canada. I understood that [the claimant] would not be able to stand it, if in addition to the pressure from his father, he would also experience pressure from society because of his non-traditional orientation…. I am happy that my son can freely build his personal life without being afraid to go out with a guy on the street, to the cinema, to a café, without hiding his relationship with him…”[5] The claimant’s younger brother, who is also now in Canada, also wrote a letter of support for the claimant, expressing his fear of what the claimant would face in Uzbekistan “due to societal prejudice and discrimination.”[6]

[15] The panel is also mindful of the Chairperson’s Guideline 9, which advises that panels are “not to rely upon such assumptions that diverse SOGIESC individuals would actively participate in the LGBTIQ2 culture, or that they necessarily would enter into relationships with members of the same sex.”[7] Nevertheless, the claimant provided detailed testimony about his life experiences in Canada as a bisexual man. The claimant testified, credibly, that he feels that, as a bisexual man, he can live as “an equal” in Canada. He also testified, credibly, that he has found the LGBQ1A2+ oriented XXXX XXXX XXXX to be supportive of him, and, by way of confirmation of his involvement in their XXXX XXXX XXXX, he provided a letter of reference from the XXXX’s XXXX XXXX XXXX XXXX XXXX XXXX.[8] The claimant also testified, credibly, that when he participated at a recent Pride Parade, he, at first, felt fearful that the police would arrive and harm him, but then realized that he was safe, and felt “respected and welcome” as a bisexual man. The claimant also testified, credibly, about his new partner in Canada, MS, whom he described as an attractive, intelligent and supportive person who helped him overcome his fears of homophobia in Canada, and with whom he testified that he feels much in common with, and is someone whom he can confide in. By way of corroboration, the claimant provided a letter from MS, where he confirmed the claimant’s evidence of how they met, of their mutual interests and of their feelings for each other. In his letter, MS also described how both he and the claimant were able to kiss at a gay bar, writing that it “was such an awesome moment when we were surrounded by strangers who applauded and cheered at our kiss.”[9] The claimant also submitted a number of photos of himself with MS, and testified, credibly, about the story behind these photos, one of which recorded the claimant’s attendance at the recent Pride Parade, which, he testified, he went to with both MS and the claimant’s younger brother.[10] In her letter of support, the claimant’s mother described MS as “close to me as my own children,”[11] and the claimant’s brother writes about how their “relationship is a source of joy and support for both of them.”[12]

[16] In light of the credible evidence that the claimant provided of his circumstances in both Uzbekistan and Canada, the panel finds that the claimant has established his personal identity as a bisexual man. The panel also finds that the claimant’s agents of persecution are certain intolerant and homophobic members of his community as well as members of Uzbekistani society as a whole, as well as state agents such as members of the government or the police who are either unwilling to protect the LGBTQ1A2+ or who are aggressors in their own right due to their own intolerance and homophobia.

[17] While the claimant passed through, for relatively brief periods, XXXX XXXX XXXX, XXXX and then XXXX XXXX XXXX on route to Canada, the panel does not find that his passage through these countries or his failure to claim asylum there undermines his subjective fear of persecution or the core of his allegations. The claimant testified, credibly, that his ultimate destination was always going to be Canada, given that his mother and his younger brother were already residing in this country, and that the route that he took was pre-arranged with the plan being to ultimately arrive in Canada.

[18] Given the above credible evidence, the panel believes what the claimant has alleged on a balance of probabilities. In light of this credible evidence, the panel finds that the claimant has established a subjective fear of persecution on the basis of his membership in a particular social group: bisexual men.

Objective evidence

[19] It has been observed that, “Following the collapse of the USSR, Turkmenistan and Uzbekistan were the only Central Asian states not to decriminalize homosexuality.”[13] Pursuant to Article 120 of the Criminal Code of Uzbekistan, “consensual sexual conduct between men” is punishable “with up to three years in prison.”[14] Also, pursuant to Article 2 of the Family Code of Uzbekistan, marital unions are specified as “that of between a man and a woman, thus depriving LGBTI people from the right to officially register same-sex marriage.”[15]

[20] An interview of LGBTQIA2+ activists revealed that the LGBTQIA2+ faced arbitrary arrests, threats, extortion, psychological pressure, and physical attacks by both police and non-state actors for being gay.”[16] Furthermore, it has been noted that under the law of Uzbekistan, there is “no provision for hate crimes, nor can hate crimes be prosecuted as aggravated offences if they are motivated by hatred or discrimination. Uzbekistan has yet to adopt a comprehensive anti-discrimination law that includes sexual orientation and gender identity as a protected ground. As of September 2019, the last time it addressed the issue, the Uzbek government said there were no ongoing criminal investigations involving violence against LGBT people.”[17] Moreover, according to objective sources, “Uzbek authorities have dismissed calls to decriminalize homosexuality. In March 2020, during the UN Human Rights Committee’s review of Uzbekistan, an Uzbek government representative said that the ‘lifestyle [of LGBT people] was …not in keeping with the Uzbek mindset.”[18] One LGBTQIA2+ activist and journalist has been cited as concluding that “Uzbek society was still not ready to accept those who do not fit in with mainstream notions of gender and sexuality.”[19]

[21] Also, it has been reported that “there are few organisations that provide social assistance and support to the LGBT.”[20] “In their 2019 index, a gay travel website… ranked Uzbekistan 159 out of 197 countries for their level of tolerance towards sexual minorities. Acts of violence are not only rarely investigated, but often meet with public approval.”[21] It has also been observed that LGBTQIA2+ people “rarely sought help from human rights activists [in Uzbekistan] … who tended to be conservative, middle-aged people who viewed homosexual relations as unacceptable. There are no dedicated LGBTI rights organisations inside Uzbekistan.”[22]

[22] In light of the objective evidence above, the panel finds that the claimant’s fear of persecution has been established by the objective evidence. Therefore, the panel finds that the claimant has a well-founded fear of persecution on the ground of his membership in a particular social group: bisexual men.

State Protection

[23] As established above, the sexual relations between men are criminalized in Uzbekistan. As such, the state is an agent of persecution. Furthermore, objective observers have noted that, as agents of the state, the “police continued to be the main perpetrators of anti-LGBT violence, including through extortion.”[23] According to a director of the Europe and Central Asia division at Human Rights Watch, the criminalization of sexual relations between men, “and abuses linked to it, has placed gay and bisexual men in Uzbekistan in a deeply vulnerable and marginalized position, leaving them with almost no protection from harassment by police and others.”[24] It has been noted that “gay men were frequent targets for intimidation and extortion but knew that they could expect no help from the authorities if they made a formal complaint. ‘Law enforcement officers blackmail the victims and extort money [according to an interview of a gay man that was being cited in this source] … Otherwise, they threaten to open a criminal case or tell the truth to the family. So, gays don’t complain about the police if they face blackmail and extortion.”[25] Also, “It was not unknown for police officers to pose as gay men on dating websites to lure victims into a meeting.”[26] “It is further noted that access to justice for victims of hate crimes and those charged under Section 120 [which criminalizes sexual relations between men] remains elusive as lawyers are often reluctant to take up their cases for fear of public retaliation. It is said that lawyers who make a habit of taking on ‘sensitive’ cases even risk disbarment.”[27]

[24] In light of this objective evidence, the panel finds should the claimant return to Uzbekistan, given his sexual orientation, adequate state protection will not be available to him. As such, the panel finds that the claimant has rebutted the presumption of state protection.

Internal Flight Alternative (IFA)

[25] The test to be applied in determining whether there is a viable internal flight alternative is two-pronged.[28]

[26] Firstly, the panel must be satisfied, on a balance of probabilities, that there is no risk to life or risk of cruel and unusual treatment or punishment or danger of torture in the proposed internal flight alternative location, or, on a balance of probabilities, there is no serious possibility of persecution in the proposed internal flight alternative location. This prong is known in plain language as the “safety” part of the test.

[27] Secondly, the conditions in the proposed internal flight alternative location must be such that it would not be objectively unreasonable under the circumstances, including those particular to the claimant, for him to seek refuge there. This prong is known in plain language as the “reasonableness” part of the test.

[28] Both of these prongs must be satisfied for a finding that the claimant has a viable internal flight alternative.

[29] For the reasons that follow below, the panel finds that the test for a viable IFA fails on its first prong, the safety test.

[30] As established above, the state an agent of persecution in its own right, by means of the criminalization of sexual relations between men. As determined above, the police, who are agents of the state and who are also known to be agents of persecution. As such, the claimant would likely have no better recourse to state protection in an IFA location. It has also been established by the objective evidence that homophobic attitudes prevail in Uzbekistani society. As the Chairperson’s Guideline 9 also makes clear, “an IFA is not viable if a SOGIESC individual must conceal their SOGIESC in order to live in that location.”[29] Therefore, the panel finds that there is no safe place for the claimant to reside freely, safely or openly as a bisexual man in Uzbekistan.

[31] Accordingly, the panel finds that test for a viable internal flight alternative fails on the first prong of the test, safety.

[32] Therefore, the panel finds that there is no viable internal flight alternative for the claimant in his particular circumstances throughout Uzbekistan.

CONCLUSION

[33] Based on the totality of the evidence, the panel finds that the claimant will face a serious possibility of persecution pursuant to section 96 of the IRPA, should he return to Uzbekistan.

[34] His claim for protection is therefore accepted.

——— REASONS CONCLUDED ———

[1] Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the IRPA. Because different sources are being cited, the acronyms used in this decision for the LGBTQiA2+ will not be consistent.

[2] Exhibit 5, Claimant Disclosure, Photos, pp. 23- 25.

[3] See the Chairperson’s Guideline 9, cited above, section 7, “Establishing principles for assessing credibility and evidence pertaining to SOGIESC,” for a discussion in this regard.

[4] Exhibit 5, Claimant Disclosure, Letter from MM, p. 9. (translation).

[5] Exhibit 5, Claimant Disclosure, Letter form the claimant’s mother, p. 12, (translation).

[6] Exhibit 5, Claimant Disclosure, Letter from the claimant’s brother, p. 14, (translation).

[7] Chairperson’s Guideline 9, cited above, section 6: “Avoiding stereotyping when making findings of fact.”

[8] Exhibit 5, Claimant Disclosure, Letter from XXXX XXXX, pp. 6- 7.

[9] Exhibit 5, Claimant Disclosure, Letter from MS, pp. 17- 18.

[10] Exhibit 5, Claimant Disclosure, photos, pp. 20 -22.

[11] Exhibit 5, Claimant Disclosure, Letter form the claimant’s mother, p. 12, (translation).

[12] Exhibit 5, Claimant Disclosure, Letter from the claimant’s brother, p. 14, (translation).

[13] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.3, p. 1.

[14] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.2, p. 1.

[15] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.1, p. 1.

[16] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.2, p. 1.

[17] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.2, p. 2.

[18] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.2, p. 3.

[19] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.3, p. 6.

[20] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.1, p. 2.

[21] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.3, p. 3.

[22] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.3 p. 4.

[23] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.1, p. 2.

[24] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.2, p. 1.

[25] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.3, p. 4.

[26] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.3, p. 4.

[27] Exhibit 3, National Documentation Package for Uzbekistan, (March 28, 2024), Item 6.4, p. 2.

[28] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).

[29] Chairperson’s Guideline 9, cited above, section 8.7.1.