2024 RLLR 51

Citation: 2024 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: September 23, 2024
Panel: D. Shamoun
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Kenya
RPD Number: TC3-35224
Associated RPD Number(s): N/A
ATIP Number: A-2025-00128
ATIP Pages: N/A

REASONS FOR DECISION

[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX (the claimant) citizen of Kenya, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

[2] In reaching this decision, the panel took into consideration the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.[2]

ALLEGATIONS

[3] The claimants’ allegations are set out in his Basis of Claim (BOC) form narrative.[3] In short, the claimant was a XXXX at XXXX in Kenya. In XXXX 2018, along with a professional counsellor he managed to create informal conversations with the XXXX that were being discriminated and tormented against because of their sexuality. This came to the attention of the XXXX XXXX and community and the claimant was threatened with legal action and eventually suspended. Unknown individuals attacked his family in Nakuru in XXXX 2023 and the claimant arrived in Canada in XXXX 2023.

[4] The claimant fears if he were to return to Kenya, he would face persecution from Kenyan society, police and his immediate family, and be imprisoned or killed.

DETERMINATION

[5] The panel finds the claimant does face a serious possibility of persecution in Kenya due to his perceived sexual orientation, as a gay man. Therefore, the panel finds that the claimant is a Convention Refugee pursuant to section 96 of the IRPA.

ANALYSIS

Identity

[6] The panel finds that the claimant’s identity has been established, on a balance of probabilities, by copies of his Kenyan passport.[4]

Nexus

[7] The panel finds that the claimant has established a nexus to section 96 of the IRPA as the persecution he fears has a link to one of the five Convention grounds, specifically membership in a particular social group, as a perceived gay man. Therefore, the claim is assessed under section 96 of the IRPA.

Credibility

[8] Testimony provided under oath is presumed to be truthful unless there is a reason to doubt its truthfulness. In this case, the panel has no reason to doubt the claimant’s credibility. The claimant’s testimony was spontaneous, sincere, and consistent with the allegations in his Basis of Claim (BOC). He testified in a straightforward and detailed manner, and there were no inconsistencies that arose or were not satisfactorily explained. Throughout his testimony, the claimant demonstrated a willingness to ask for clarification when he did not fully understand a question and was able to provide articulate and well-considered responses.

[9] Based on the claimant’s spontaneous, consistent testimony, and the ability for him to elaborate on questions asked, along with the documentary evidence listed below, the panel finds, on a balance of probabilities, that the claimant created informal conversations with the XXXX that were being discriminated and tormented against because of their sexuality. The claimant testified in detail about his activities with the LGBTQ+ community. This came to the attention of the XXXX XXXX and community and the claimant was threatened with legal action and eventually suspended. Unknown individuals attacked his family in Nakuru in XXXX 2023 and continue to look for the claimant through his wife in Kenya.

[10] Accordingly, the panel finds no inconsistencies between the claimant’s documents and his testimony and finds, on a balance of probabilities, they corroborate his allegations. The claimant provided copies of his work ID cards, support letter from his wife, his sister, two students and a neighbour. The panel also notes the support letter contained personal details and were not just a reiteration of the BOC. The panel finds this further establishes the claimant’s allegations and credibility.

Well-Founded Fear of Persecution

[11] To establish the claimant’s status as a Convention Refugee, the claimant had to show that there was a serious possibility that he would be persecuted if removed to Kenya. The panel finds that the evidence presented in support of his allegations does establish a serious possibility of persecution.

[12] 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.[5] Individuals of diverse SOGIESC are commonly subjected to abuse, violent attacks, arbitrary arrest, forced rape and murder throughout Kenya by state actors, the Kenyan community and often members of their own family.[6]

[13] 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.[7] Even LGBTQ+ human rights defenders have been attacked, tortured, and killed for their efforts and beliefs.[8]

[14] While there are some indications that attitude towards SOGIESC individuals in Kenya are improving, stigma against sexual minorities remains deeply entrenched. This stigma is reinforced by those who hold the highest levels of political office in Kenya, including past President Kenyatta, who stated in a 2018 interview that Kenya does not see gay rights relevant as it goes against the cultural beliefs of Kenyans.

[15] Violence and discrimination against SOGIESC individuals in Kenya is widespread. SOGIESC individuals also face difficulties in obtaining assistance from the authorities, with reports indicating that SOGIESC individuals have faced harassment, extortion, and sexual or physical assault by police in the past. This is also the situation with individuals perceived to be of same-sex sexual orientation.

[16] The NDP also indicates that the state authorities continue to engage in arrests under s. 162(a)(c) of the Kenyan Penal Code, which prohibits individuals from engaging in same-sex relations and activities, and this law is effective country wide.[9]

[17] The panel, therefore, finds that the claimant has demonstrated a subjective fear of persecution in Kenya that is objectively well-founded.

State Protection

[18] The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to a claimant. Absent situations where there has been a complete breakdown of the state apparatus, the general presumption is that a state can protect its citizens. This presumption may be rebutted if a claimant provides clear and convincing evidence of the state’s inability to provide protection. A claimant must approach the state for protection if it might reasonably be forthcoming; however, they should not risk their life seeking ineffective protection of a state merely to demonstrate that ineffectiveness.[10]

[19] As noted in section 8.6.4 of the Chairperson’s 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.[11]

[20] The May 2021 UN report indicates that individuals of diverse SOGIESC face barriers to accessing justice and remedies. The human rights defender stated that it is difficult for LGBTQ+ individuals to go to the police, who think the very existence of LGBTQ+ individuals is illegitimate.[12]

[21] As same-sex sexual activity is criminalized in Kenya and since homophobic violence continues with impunity, the panel finds that state protection for the claimant would not be forthcoming as a perceived gay man, should he try to seek it upon return to Kenya. The panel finds that there is clear and convincing evidence that the state would be unwilling or unable to provide the claimant with adequate protection in this case. Based on the foregoing, the panel finds that the presumption of state protection in this case is rebutted, and that state protection does not exist for the claimant.

Internal Flight Alternative

[22] The panel must consider a two-prong test in order to determine the viability of an IFA location. First, the panel must be satisfied that, on a balance of probabilities, the claimant would not face a serious possibility of persecution or be personally subjected to a risk to their life or of cruel and unusual treatment or punishment in the proposed IFA. Second, the panel must be satisfied that conditions in the suggested IFA are not such that it would be objectively unreasonable in all the circumstances, including those particular to the claimant, for them to relocate and reside there. Once the possibility of an IFA is raised, the burden shifts to the claimant to show, on a balance of probabilities, that there is a serious possibility of persecution, or a section 97(1) risk, in the IFA locations.[13] Both of these prongs must be satisfied for a finding that the claimant has a viable internal flight alternative.

[23] The panel finds that the test for IFA fails on its first prong. Given the state’s capacity, criminalization of same-sex conduct and homophobic attitudes that exist country wide, as outlined in the objective evidence cited earlier, the panel finds that the claimant would face persecution in all areas of Kenya.

[24] Therefore, the panel finds that there are no viable internal flight alternatives for the claimant in Kenya in his particular circumstances.

CONCLUSION

[25] Having considered all of the evidence, the panel finds that the claimant faces a serious possibility of persecution in Kenya based upon his perceived sexual orientation.

[26] The panel, therefore, finds XXXX XXXX is a Convention Refugee pursuant to section 96, and accepts his claim.

——— REASONS CONCLUDED ———

[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2] Chairperson’s Guideline 9 of the Refugee Protection Division: Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.

[3] Exhibit 2 – Basis of Claim Form.

[4] Exhibit 1 – Claim Referral from CBSA/IRCC.

[5] Exhibit 3 – National Documentation Package (NDP) for Kenya (May 31, 2024) item 6.1.

[6] Exhibit 3 – item 6.7.

[7] Exhibit 3 – item 2.1.

[8] Ibid.

[9] Exhibit 3 – item 6.7.

[10] Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689.

[11] Chairperson’s Guideline 9 of the Refugee Protection Division: Involving Sexual Orientation and Gender Identity and Expression.

[12] Exhibit 3 – item 6.7.

[13] Thirunavukkarasu v. Canada (MEI), 1993 CanLII 3011, at para. 9.