2024 RLLR 54

Citation: 2024 RLLR 54
Tribunal: Refugee Protection Division
Date of Decision: October 16, 2024
Panel: Brenda Lloyd
Counsel for the Claimant(s): Ian G Mason
Country: Kenya
RPD Number: TC3-38639
Associated RPD Number(s): N/A
ATIP Number: A-2025-00128
ATIP Pages: N/A

DECISION

[1] MEMBER: This is the decision regarding the claimant for refugee protection, or the claim for refugee protection of XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, born XXXX XXXX , 1984, a citizen of Kenya and his citizenship is established by way of the passport utilized to travel to Canada found in Exhibit 1.

[2] I have considered the testimony and the other evidence presented this day. You, sir, declare that you fear society in Kenya due to your support of LGBTQ+ [2SLGBTQI+] which is Lesbian Gay Bisexual Transgender Queer and + follows everything else, two-spirited and the other acronyms we use. For the purpose of this hearing I’m just going to say LGBTQ.

[3] You fear the community through your work as a XXXX at the XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, located in XXXX, Kenya. You allege that there is serious possibility you’d be harmed by community members in XXXX, Riuri, R-I-U-R-I and the police if you were to return to Kenya and that you would be unable to pursue your XXXX XXXX XXXX XXXX XXXX

[4] Now I’ve taken into consideration the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression and Sexual Characteristics. I recognize, sir, that you yourself are not stating that you’re a member of this community, you do state that you XXXX in support of this community.

[5] The process of determining whether a claimant is a Convention refugee or a person in need of protection under the Immigration Refugee Protection Act allows me to decide whether I can believe your evidence and find you’re a Convention refugee or a person in need of protection.

[6] In determining your claim I have considered your testimony, the various amendments to your Basis of Claim forms, the supporting documents provided, your witness — your written evidence, Ministers brief, thank you, sir, submission.

[7] You allege that in 2018 you joined the XXXX XXXX as a XXXX or XXXX XXXX. Due to your knowledge of your brother XXXX’ same-sex relationship and his membership in the LGBTQ community you testified that in XXXX 2019, specifically on XXXX XXXX you spoke to a group of 400 XXXX about the acceptance of the LGBT community.

[8] After this you met with hostility from the XXXX XXXX and the XXXX and the XXXX XXXX asked you not to XXXX about the LGBT community. You complied, only speaking to those who had approached you first, but you did no more outreach specifically targeting the LGBT community.

[9] In XXXX 2019 your brother was XXXX from your XXXX as he was exposed as a member of the LGBTQ to the XXXX. He moved away. You state in your original narrative that he was chased away from every place he would rent and he moved to R-U-I-R-U.

[10] On XXXX XXXX XXXX 2020 you were removed from your XXXX XXXX position or XXXX XXXX position as XXXX XXXX XXXX XXXX XXXX but you were allowed to continue as XXXX XXXX XXXX XXXX XXXX XXXX but your fellow XXXX began to distance themselves from you.

[11] On XXXX XXXX, 2021 your brother went missing. Though you searched for him you could not locate him, the police refused to aid you in your search. On XXXX XXXX, 2022 you were removed from the position of XXXX XXXX XXXX XXXX XXXX and in XXXX 2022 you left this XXXX.

[12] And though you believe your brother is dead, this was based on a statement from a XXXX made on XXXX XXXX, 2022 when you were confronted at your home by a group of community members in XXXX but you have no evidence of him being deceased.

[13] On XXXX XXXX despite your brother leaving you and your family you were targeted by the XXXX and community members and they demanded that you leave the area, specifically you move out of XXXX. That evening after confrontation at your house two (2) police officers came to your home and assaulting you, telling you to leave. You complied with this request and moved your family to Ruiru, R-U-I-R-U.

[14] You allege that in 2020, oh sorry, in 2022 these threats began to escalate in that once you relocated to the home where you were building a XXXX XXXX, the chief and several elders of the community came to your home, I think I do believe it was on XXXX XXXX, 2022, demanding that you not to XXXX or XXXX your views on sexual — homosexuality to the community.

[15] Despite you not doing this they again showed up at your home chanting and threatening your family. After this you — well before this you had already made the decision to leave the country but by this there seemed to be a more urgent need for you specifically to leave the country for your safety and the safety of your family and you left the country travelling to Canada.

[16] With regards to your credibility I too have some concerns particularly related to your brother and XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, Exhibit 6 and his letter pages 2 to 73. I find this letter and given the Minister’s evidence found at Exhibit 10, the Facebook page, it lessens any weight I can give this letter.

[17] I find not by not mentioning your previous relationship with him in the original letter, and this is particularly important given your testimony that he met XXXX through you, I find it not to be credible, sir.

[18] Further, I also find the structure, font and set up of the letter similar to other letters within that exhibit, pages 67, 68 and 74 and 75 of Exhibit 6. Again I find this lessens any weight or any — actually I can give this letter no weight, so I find this is central to your claim. This is the reason you had to flee Kenya to come to Canada and this is the reason why you had flee your home not once but twice, you fled from XXXX and then from the other city.

[19] Thus I do not find the reasons you left Kenya are as you stated, due to your XXXX on behalf of the LGBTQ community in Kenya based on your brother.

[20] Despite this — that being a central reason for your claim as what occurred, a key issue in this claim is whether you are a XXXX who supports the LGBTQ community and whether there’s a serious possibility you would face persecution if you were to return to Kenya for that support and the answer is that there is a serious possibility that this may be the case, this is the crux in my opinion of the claim.

[21] Now what I do find credible, sir, is the information found in Exhibit 9 and the information in Exhibit 6, particularly pages 18 to 19 and 20 which is the letter from the XXXX XXXX XXXX XXXX XXXX, also Exhibit 6 pages 21 to 22, I find these letters very persuasive.

[22] I also found your testimony about your XXXX in Canada and your desire to XXXX XXXX XXXX to not just Kenya but other areas including other areas in Africa to be credible, this is what I’ve given significant weight to. Okay?

[23] Now with regards to the objective evidence, it aligns with your allegations of risk facing individuals including pastors who support the LGBTQ community in Kenya. The US Department of State Report, Exhibit 3, item 2.1 reports — the report highlights several significant human rights issues including laws criminalizing consensual same-sex conduct between adults, it also mentions the harassment of non-governmental organizations and activists which is one of the most significant human rights issues in Kenya and I — this is where I find your profile fits, sir.

[24] Now according to several other reports within the National Documentation Package LGBTQ individuals and their supporters face significant discrimination and threats. The legal environment in Kenya is hostile towards LGBTQ rights and same-sex relationships, criminalizing them under sections 161 and 165 of the Penal Code which can result in imprisonment. See Exhibits 3, items 6.1, 6.2, 6.7, and 6.9 is of particular importance in this claim because it speaks about human rights organizations where it’s documented that individuals and activists have been harassed, detained and subjected to violence by both state and non-state actors.

[25] Supporters and allies of the LGBTQ community have also faced intimidation and legal challenges. Now there are other reports within the National Documentation Package that indicate that despite some progress, and there has been some progress, it’s very incremental in advocacy and disability, so despite this the legal context and societal repression still exists.

[26] Now in the documentary evidence that you have provided, specifically Exhibit 7, I’m referring to pages 15 to 20 and also page 23 talks about how persons who should be, as you say, ministering to all seem to want to target the LGBTQ community. We’re talking high-ranking members of churches who speak against LGBTQ rights and who talk about family rights and seem to identify these rights as somehow limiting family rights, LGBTQ rights limiting family rights which you know and they talk about you known nipping this in the bud and this is found I think at page starting at page 23.

[27] There are — they’ve actually urged the government to pass legislation to safeguard the family which in other words means to deprive LGBTQ community of any rights or freedoms and I — this seems to follow the profile that you’ve talked about how the higher ranks within your XXXX including the XXXX not wanting you to speak out about this. They may have a different opinion or differing opinion but the majority of the evidence provided in Exhibit 7 speaks and identifies targeting of Christians and other religious members by their own people because of this fear of the LGBTQ community.

[28] The stigma and risk faced by supporters of the LGBTQ community are reinforced by those holding the highest political office in Kenya, this is also noted within Exhibit 7 and in our NDP, again item 6.1, 6.2, 6.3 and 6.6 of the National Documentation Package talk about mob violence, blackmail, legal prohibition, evictions, arbitrary arrest, discrimination and supporters are being persecuted by non-state actors and the state. Having considered this objective evidence I find that you have established a well-founded fear of persecution in Kenya.

[29] I didn’t put state protection as an issue because it’s so evident that the state is not offering protection to those who speak out on behalf of the LGBTQ community. As I just talked about they are somewhat targeting these people. So to put it clearly, if you were to — if I were to put an issue on of state protection I believe that your testimony would have rebutted that presumption.

[30] So it’s not reasonable to think that you could go and get protection for speaking out if the actors who are targeting you are from the state.

[31] And I did put the issue of internal flight alternative but given your desire, your passion, your belief in your goals of speaking to the community about LGBTQ rights I don’t think that you would be safe anywhere in Kenya if you were to return and speak out and to XXXX and to XXXX which you have said is your calling.

[32] So considering that the laws against sexual minorities are applied uniformly through Kenya I find that you would face a serious possibility of persecution across Kenya, therefore there’s no viable internal flight alternative.

[33] Given what I’ve said I find that you are a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act and therefore I accept your claim, sir.

——— REASONS CONCLUDED ———