2024 RLLR 55
Citation: 2024 RLLR 55
Tribunal: Refugee Protection Division
Date of Decision: March 8, 2024
Panel: Sarah Gebrenegus
Counsel for the Claimant(s): Ebrahim Shaheen
Country: Kenya
RPD Number: TC3-39573
Associated RPD Number(s): N/A
ATIP Number: A-2025-00128
ATIP Pages: N/A
DECISION
[1] On March 28, 2024 the Refugee Protection Division (RPD) heard the claim of XXXX XXXX XXXX, who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). This is the written version of the decision and reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate.
[2] MEMBER: This transcript constitutes my written reasons for decision, as the decision was not given orally at a hearing.
[3] This is the decision for the refugee case of XXXX XXXX XXXX, file number TC3-39573. The claimant is a citizen of Kenya who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[4] I have considered and applied Guideline 9 relating to Sexual Orientation, Gender Identity and Expression, and Sex characteristics, also known as SOGIESC guidelines.
[5] I find that the claimant is a Convention refugee for the following reasons. The claimant’s allegations can be found in the Basis of Claim form found at Exhibit 2. The claimants alleged he is a citizen of Kenya and fears persecution at the hands of his community and Kenyan society because of his sexual orientation as a gay man. Furthermore, the claimant alleged there is no state protection for him or an internal flight alternative anywhere in Kenya.
[6] The claimant’s personal identity as a citizen of Kenya has been established by his testimony and his supporting documents filed in Exhibit 1. Specifically, he has a Kenyan passport.
[7] I find there is a link between what the claimant fears in one (1) of the five (5) Convention grounds because of his membership in a particular social group as a gay man.
[8] Next, I will turn to the issue of credibility. I find the claimant to be a credible witness and believe what he has alleged in support of his claim. When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary.
[9] The claimant was consistent with his narrative as submitted in his Basis of Claim and credible in his allegations and evidence. Additionally, the claimant provided reasonable explanations for credibility concerns that were identified within the hearing.
[10] The claimant provided credible testimony about how he came to realize his sexual orientation when he was attending high school. The claimant testified about how he struggled to accept his sexual orientation due to his upbringing in a Christian household and how he was able to overcome the struggle.
[11] The claimant was in a relationship with a man who will be referred to as A, whom he met through social media. The claimant testified in detail about how he met A, how he spent — how they spent time together, and other details about their relationship.
[12] The claimant alleged his sexual orientation was discovered by his community when he was in Kenya. The claimant provided credible testimony regarding how his sexual orientation was discovered by his community and how his family received this information.
[13] In addition to the claimant’s testimony about his relationship and issues faced in Kenya, he testified about his involvement with LGBTQ organizations in Canada.
[14] The claimant also alleged he is in an — he was in a same-sex relationship during the hearing with a man named E for the past four (4) months. The claimant testified about his relationship with E and provided photographs of them together.
[15] Moreover, the claimant provided corroborative evidence to establish his allegations, which I find to be credible and trustworthy, and I assign it full weight in support of the claimant’s allegations.
[16] I therefore find, on a balance of probabilities, that the claimant is a credible witness and have found he has established that he is a gay man.
[17] I note that the objective evidence supports the claimant’s fear of returning to Kenya as a gay man. The objective evidence is found in the National Documentation Package for Kenya included in Exhibit 3. In particular, I am referring to Items 2.1 and 6.6.
[18] I note that same-sex sexual activity is criminalized within the Kenyan Penal Code, which sets out a sentence of up to 14 years for carnal knowledge against the order of nature. This criminalization of same-sex sexual activity was upheld recently by the High Court of Kenya.
[19] In addition, while there are some indications that attitudes 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 former President Kenyatta, who stated in an interview that Kenya does not consider gay rights relevant as it goes against the cultural beliefs of Kenyans.
[20] Sources also note that violence and discrimination against SOGIESC individuals in Kenya is widespread and includes risks such as murder, mob violence, verbal assaults, rape, blackmail, extortion, arbitrary arrests, physical violence, ridicule, constant harassment, stigma, and exclusion by family and society, expulsion from workplace or learning institutions, denial of work, denial of housing, and poor access to health care.
[21] Moreover, people who do not conform to society’s expectations about gender and sexuality, particularly LGBTIQ persons, are immediately in danger. LGBTIQ persons are not only marginalized, but also face violence and discrimination when they are open about their sexual orientation and gender identity, and when they are perceived to be anything other than heterosexual and or cisgender. This can come from an individual’s family, community, or even from state officials.
[22] Sources indicate that to maintain their safety, SOGIESC individuals often need to hide their sexual orientation or gender identity.
[23] Based on this evidence, I find that there is, on a balance of probabilities, an objective basis for the claimant’s fears.
[24] As subjective fear and objective basis have been established, I find that the claimant has a well-founded fear of persecution in Kenya. I therefore find that the claimant would face a serious possibility of persecution should he be returned to Kenya.
[25] As same-sex sexual activity is criminalized throughout Kenya and carries a sentence of up to 14 years for carnal knowledge against the order of nature, I find that there is clear and convincing evidence that adequate state protection would not be available to the claimants.
[26] For the issue of internal flight alternative. As same-sex sexual activity is criminalized throughout Kenya, I find that there is nowhere in Kenya where the claimant would not face a serious possibility of persecution based on his membership in a particular social group as a gay man. As the test for an internal flight alternative fails on the first prong, I find that there is no viable internal flight alternative for the claimant.
[27] For the foregoing reasons, I find that the claimant has established that he faces a serious possibility of persecution based on his membership in a particular social group as a gay man if returned to Kenya and is a Convention refugee pursuant to section 96 of the Act. The claimant’s claim is therefore accepted.
——— REASONS CONCLUDED ———