2024 RLLR 45

Citation: 2024 RLLR 45
Tribunal: Refugee Protection Division
Date of Decision: March 5, 2024
Panel: Ziunn Yow (Choy) Chern
Counsel for the Claimant(s): Albert Muragijimana
Country: Rwanda
RPD Number: TC3-14428
Associated RPD Number(s): N/A
ATIP Number: A-2025-00128
ATIP Pages: N/A

REASONS FOR DECISION

[1] These are the reasons for the decision of the refugee claim of XXXX XXXX, a citizen Rwanda, who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).

[2] In rendering this decision, the panel applied the directives as they are found in the Chairperson’s Guideline 4 – Gender Considerations in Proceedings Before the Immigration and Refugee Board.[1] Similarly, the panel applied the directives that are found in the Chairperson’s Guideline Guideline 9 – Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics​.[2]

ALLEGATIONS

[3] The claimant’s allegations are fully set out in her Basis of Claim (BOC) form. To summarize, the claimant alleges that she faces persecution in Rwanda due to her sexual orientation as a lesbian.

DETERMINATION

[4] The panel finds that the claimant faces a serious possibility of persecution on a Convention ground in Rwanda, based on her sexual orientation and accepts her claim under s. 96 of the IRPA.

ANALYSIS

Identity

[5] The claimant’s personal and national identities are established, on a balance of probabilities, through her testimony and her genuine Rwandan passport in evidence.[3]

Credibility

[6] The claimant’s testimony was straightforward and spontaneous. In general, the claimant was able to recount the details provided in her written narrative. At the hearing, the claimant was asked able to describe the development of her sexual orientation as a lesbian individual. In her description of her experience while attending high school, the claimant testified to how her schoolmates gossiped about her and that she felt inadequate while believing that she was not “normal”. In this regard, the panel finds that her testimony of being made to feel different is consistent to that faced by LGBTQI+ individuals because of perceived stigma.[4]

[7] As for the treatment from family members due to her sexual orientation, the claimant spoke of the growing pains living in a household that instilled religious traditions. Although it took some time for her parents to finally accept that she is a lesbian, the claimant testified that they became supportive when she was harassed on account of her sexual orientation. In fact, the letter from the claimant’s parents[5] mentions the struggles that the claimant faced in Rwanda as an LGBTQI+ individual. Given that the letter corroborates the claimant’s testimony regarding her mistreatment at the hands of the Rwandan authorities, the panel assigns the letter significant weight.

[8] During the hearing, the claimant spoke candidly of her relationship with her same sex partner. Considering the pervasive discrimination that LGBTQI+ individuals such as the claimant and her partner faced, the claimant stated that they had to conceal their sexual orientation in Rwanda. In fact, the claimant spoke of the clandestine meetings that she and her friends organized for members of the LGBTQI+ community. Subsequently, the letter from her same sex partner J confirms their participation in these events.[6] Combined with the photos depicting the claimant and her partner sharing an intimate moment while out on a date, the panel accepts that, on a balance of probabilities, the claimant had a same sex relationship with J. Moreover, the panel assigns significant weight to J’s letter as well as to the photos of the couple.

[9] Overall, the panel did not find any inconsistencies, omissions nor contradictions that rebut the presumption that the claimant was telling the truth on a balance of probabilities. Based on the totality of the evidence, the panel accepts that, on a balance of probabilities, the claimant is a lesbian. As such, the panel finds that the claimant has established her subjective fear of persecution in Rwanda.

Well-Founded Fear of Persecution

[10] The panel finds that the claimant’s fear for returning to Rwanda as a lesbian is supported by the objective evidence found in the National Documentation Package (NDP).

[11] The documentary evidence in the NDP indicates that while same-sex sexual activity is not illegal in Rwanda, cultural attitudes have led to a lack of education on this subject. It was reported that the government generally does not acknowledge the existence of the LGBTQI+ population and that religious groups have stirred up homophobia in the country.[7]

[12] There are reports in the NDP of strong social stigma facing lesbians in Rwanda and there is discrimination against LGBTQI+ persons in housing, employment, access to government services such as health care and in establishing non-governmental organizations.[8] In reality, sexual minorities in Rwanda are often fired, evicted, labeled as satanic, ostracized by the community if they come out, or receive violent threats and actions, as in your case, forcing them to flee the country. Sexual minorities in Rwanda are reportedly the most economically marginalised, vulnerable, and poorest in the country, as they struggle to access work and health services.[9]

[13] The panel is guided by 8.5.1 of the Guideline 9 that affirms that being compelled to conceal ones’ SOGIESC constitutes a serious interference with fundamental human rights that may amount to persecution.[10] The report at item 6.3 of the NDP states that evidence suggests that Rwanda’s reticence on this issue is not an indication of a supportive sociocultural environment for LGBTQI rights.[11]

[14] Homophobia and transphobia remain real within Rwandan society, as is the perception that homosexuality is a corrupting ‘Western’ import and not a Rwandan concern.[12] In this case, the claimant’s experience at the hands of the Rwanda Investigation Bureau (RIB), particularly in their accusations against the claimant that she was spreading homosexual ideologies from the West that went against Rwandan cultural values, adequately illustrates the pervasive attitude shared by those in positions of authority in that country.

[15] The United States Department of State’s report at item 2.1 says LGBTQI persons reported societal discrimination and abuse including challenges to officially registering NGO’s.[13] According to Freedom House at item 2.3 of the NDP, same sex activity is not criminalized though LGBTQI people face strong social stigma. No law specifically provides protection against discrimination based on sexual orientation or gender identity and police arrest people using the public morality laws.[14]

[16] In Rwanda, LGBTQI individuals are stigmatized by society in general.[15] As a result of this stigmatization, they are often subjected to violence.[16] While some LGBTQI organizations were found to operate in Rwanda,[17] some of which are even recognized by the government, none of these explicitly dedicate their efforts to defend LGBTQI rights.[18] Effectively, safe spaces for the LGBTQI community in Rwanda remain few and far in-between.

[17] In summary, the claimant’s allegations are well-founded, and the panel concludes that the claimant’s sexual orientation would expose her to risks of homelessness, and other related harms, such as arbitrary arrests, as well as difficulty in obtaining subsistence, and employment that would help her survive and be healthy in Rwanda. As a result, the panel finds these concerns would amount to persecution in accordance with section 96 of the Immigration and Refugee Protection Act. Consequently, the panel finds that the claimant’s fear of persecution in a return to Rwanda is objectively supported by the documentary evidence in the NDP.

State Protection

[18] States are presumed capable of protecting their citizens unless they are in a state of complete breakdown. Based on the objective evidence noted above, the panel finds that there is no operationally effective state protection available to the claimant as there continues to be reports of police harassment of sexual minorities in Rwanda.[19]

[19] According to the article entitled, Rwanda: Situation of persons of diverse sexual orientation and gender identity and expression (SOGIE), including their treatment by society and state authorities; state protection and support services (2019–August 2021) which is found in item 6.2 of the NDP, it is stated that, while individuals cannot be charged for any crimes based on their sexual orientation or gender identity, other charges can be used to detain people of diverse SOGIESC.[20]

[20] In a study conducted by the Coalition [4], members of the LGBTI community stated that they do not file complaints of gender-based violence (GBV) with the police because the police have a perception that they are “deviant”; this results in complaints of GBV against the LGBTI population going unreported. The Executive Director of HRFR stated that it is hard for LGBTI people to receive assistance from law enforcement due to discrimination and that in some instances, LGBTI individuals have been denied assistance (5 Aug. 2021).[21]

[21] According to item 6.2 in the NDP, it is stated that, while individuals cannot be charged for any crimes based on their sexual orientation or gender identity, other charges can be used to ‘tame’ them.[22] Similarly, item 6.3 of the NDP states that the police use morality laws to detain LGBTQI individuals in Rwanda. As the claimant attested to in her testimony, the police’s actions against the LGBTQI+ community in Rwanda had been witnessed first-hand by the claimant and her acquaintances during the raid at the arts gallery. Therefore, the panel finds that the state is an agent of harm on the balance of probabilities. As such, the presumption of state protection has been successfully rebutted.

[22] The panel finds that it would be objectively unreasonable for the claimant to seek the protection of the state in light of her circumstances. Moreover, the panel finds that, on a balance of probabilities, legal protections against discrimination for LGBTQI individuals would not be forthcoming to the claimant in Rwanda.

Internal Flight Alternative

[23] Given the pervasiveness of homophobic attacks,[23] ostracization, lack of access to jobs, to housing, to basics of life, the panel finds that the claimant would face a serious possibility of persecution throughout Rwanda, and it is not objectively reasonable given her particular circumstances to relocate anywhere in Rwanda. Accordingly, there is no viable Internal Flight Alternative available to the claimant.

CONCLUSION

[24] The panel finds, for the reasons stated above, that the claimant has established that she faces a serious possibility of persecution in Rwanda due to her sexual orientation. The panel therefore concludes that the claimant is a Convention refugee and accepts her claim under s. 96 of IRPA.

——— REASONS CONCLUDED ———

[1] https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx

[2] https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir09.aspx

[3] ‘Immigration documents’: passport & ID documents and Exhibit 4; D-1

[4] Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir09.aspx

[5] Exhibit 4, D-4

[6] Exhibit 4, D-5

[7] “People have not yet normalized the existence of LGBTQ+ people.” Examination of LGBT people’s lived experiences and public perceptions of sexual and gender minorities in Rwanda. Health Development Initiative; African Population and Health Research Center May 2022 https://aphrc.org/wp-content/uploads/2022/05/Rwanda-SGM-Report-1.pdf              Accessed Date:     12 September 2022

[8] Situation of persons of diverse sexual orientation and gender identity and expression (SOGIE), including their treatment by society and state authorities; state protection and support services (2019–August 2021) RWA200730.E Immigration and Refugee Board of Canada. 23 August 2021 https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=458416           Accessed Date:     17 September 2021

[9] Ibid.

[10] https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir09.aspx#a851

[11] Sexuality, Poverty and Politics in Rwanda. Evidence Report No 131. ​Institute of Development Studies 5 October 2015     Author: Polly Haste; Tierry Kevin Gatete http://opendocs.ids.ac.uk/opendocs/bitstream/handle/123456789/6062/ER131_SexualityPovertyandPoliticsinRwanda.pdf?sequence=1           Accessed Date:     5 October 2015

[12] Ibid.

[13] Rwanda. Country Reports on Human Rights Practices for 2022.​ United States. Department of State. 20 March 2023     URL:     https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/rwanda           Accessed Date:     4 August 2023

[14] Rwanda. Freedom in the World 2023. Freedom House 2023 https://freedomhouse.org/country/rwanda/freedom-world/2023 Accessed Date:     13 October 2023

[15] « [The] violent acts are many in different areas where rwandan lgbti community live, work, study and stay. Stigma, discrimination and harassment exist in general society on high scale level because of the culture and religion which are very intolerant towards the homosexuality […] » Rwanda : L’homosexualité. COI Focus. Belgium. Office of the Commissioner General for Refugees and Stateless Persons. 30 October 2019 https://www.cgra.be/sites/default/files/rapporten/coi_focus_rwanda._lhomosexualite_20191030_0.pdf           Accessed Date:     11 August 2020

[16] Ibid.

[17] Rwanda. Country Reports on Human Rights Practices for 2022.​ United States. Department of State. 20 March 2023 URL: https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/rwanda          Accessed Date:     4 August 2023

[18] Ibid.

[19] “… LGBT people continue to face discrimination and arbitrary arrests based on individual and communal moral and cultural convictions.” ​Examination of LGBT people’s lived experiences and public perceptions of sexual and gender minorities in Rwanda. Health Development Initiative; African Population and Health Research Center. May 2022. https://aphrc.org/wp-content/uploads/2022/05/Rwanda-SGM-Report-1.pdf           Accessed Date:     12 September 2022

[20] Situation of persons of diverse sexual orientation and gender identity and expression (SOGIE), including their treatment by society and state authorities; state protection and support services (2019–August 2021) RWA200730.E Immigration and Refugee Board of Canada. 23 August 2021 https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=458416           Accessed Date:     17 September 2021

[21] Ibid.

[22] Ibid.

[23] « Plusieurs sources soulignent la discrimination et la stigmatisation sociales de la communauté LGBT, malgré l’approche progressiste apparente de l’Etat rwandais à l’égard d’orientations sexuelles non hétérosexuelles. »​Rwanda : L’homosexualité. COI Focus. Belgium. Office of the Commissioner General for Refugees and Stateless Persons. 30 October 2019 https://www.cgra.be/sites/default/files/rapporten/coi_focus_rwanda._lhomosexualite_20191030_0.pdf           Accessed Date:     11 August 2020