2024 RLLR 77

Citation: 2024 RLLR 77
Tribunal: Refugee Protection Division
Date of Decision: November 14, 2024
Panel: Adaeze Udeze
Counsel for the Claimant(s): Joshua Moegi Makori
Country: Kenya
RPD Number: TC3-22112
Associated RPD Number(s): N/A
ATIP Number: A-2025-00362
ATIP Pages: N/A

DECISION

[1] MEMBER: This is the decision of the Refugee Protection Division of the Immigration and Refugee Board in the claim for protection made by XXXX XXXX XXXX with file number TC3-22112, who claims to be a citizen of Kenya and is seeking protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[2] The specifics of your claim are set out fully in your Basis of Claim form at Exhibit 2 and your dated Basis of Claim at Exhibit 5.

[3] In summary you allege that your sexual orientation as a bisexual man became known in your country, Kenya, where it is punishable by imprisonment, violence and even death. You fear if you were to return to Kenya you would face persecution from the Kenyan society, the police and be imprisoned or killed.

[4] In coming to my decision I have considered and applied the Chairperson’s Guideline 9, Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, referred to as SOGIESC guidelines.

DETERMINATION

[5] I find that you face a serious possibility of persecution if you return to Kenya as a result of your membership in a particular social group, namely as a bisexual man. Consequently I find that you are a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act.

ANALYSIS

Identity

[6] In terms of identity I find that you have established your personal and national identity as a Kenyan national on a balance of probabilities based on your testimony and the documentation filed, including your Kenyan passport, which is currently seized by the Canadian authorities.

Nexus

[7] For a claimant to be a Convention refugee the claimant must have a well-founded fear of persecution due to a Convention ground. Your allegations establish a nexus to the Convention ground of a particular social group, specifically as a bisexual man. I have therefore analyzed the claim pursuant to section 96 of the Immigration and Refugee Protection Act.

Credibility

[8] In assessing your credibility I have considered all the evidence, including your oral testimony, documentary evidence, exhibits and the Chairperson’s Guidelines. In making this assessment I have also considered several factors that could affect your testimony, including cultural differences, personal, social and legal realities of SOGIESC individuals, as well as their mental wellbeing, the impact of trauma and the inherent stress of refugee proceedings and the virtual environment of the hearing.

[9] I find you to be a credible witness generally. You testified in a straightforward and detailed manner and there were no unexplained discrepancies or inconsistencies in your written story and your testimony. Specifically I find that you have established the core allegation regarding your sexual orientation as a bisexual man.

[10] You established that you discovered your feelings for the same sex while in high school between 2005 and 2008. You testified about your same-sex relationships in Kenya and provided enough testimony to establish those relationships.

[11] I asked you questions about each of these relationships and how you got into these same-sex relationships. You were able to explain your experiences spontaneously and forthrightly. For example you testified that you met your first partner, whom I will refer to as DG, in XXXX 2009 and became friends with each other, but after some months, specifically on XXXX XXXX, 2009, you became intimate and the relationship continued for three years.

[12] I find that the testimony is comprehensive and fulsome because the degree and level of details you provided in your testimony about this relationship are commensurate with what I would expect given the length and depth of the relationship. You were able to describe what you liked about DG and your activities together in full details. You provided details as to how the relationship came to an end when you found him cheating on you in 2012. Given your credible, spontaneous and very detailed testimony I find also that you have established on a balance of probabilities your relationship with DG in Kenya.

[13] I asked you questions regarding your second relationship with a man in Kenya, whom I will refer to as DO. You were able to describe your relationship and experiences with him spontaneously and forthrightly. You testified that you met DO in 2014 at an African students’ get together in the university where you were schooling in India.

[14] You testified in great details about your relationship, what you liked about him, your activities together and how your relationship continued even after you got married to your wife in 2019. You testified that in 2022 you both started receiving threats and calls to the effect that your relationship was no longer a secret, and subsequently you were attacked on XXXX XXXX, 2022, after which you fled to XXXX (ph) where you lived in hiding with your friend G till you came to Canada.

[15] I find that your testimony is comprehensive and fulsome because the degree and level of details you provided are commensurate with the expectations from someone who has been in a relationship for that length of time.

[16] You submitted letters of support from DO and from your friend GS who corroborated your story in their letters, confirming your relationship with DO and the incidents that happened and the fact that the police and the Sungu have continued to look for you and demand that you report to the police station.

[17] The letters and ID documents appear genuine on their face. I do not have reason to doubt the contents, therefore I give them full weight. Based on your credible testimony and documents in support, I find on the balance of probabilities that you have established your relationship with DO in Kenya. I find also that your sexual orientation was discovered in Kenya.

[18] You testified about your current relationship in Canada. You explained in details that you have a romantic partner of the same sex in Canada whom I will refer to as E. You mentioned the name of this person, his address, when and where you met him and what you like about him.

[19] I find that your testimony concerning this relationship is comprehensive and fulsome because the degree and level of details you provided in your testimony regarding this relationship is commensurate with what I would expect given the length and depth of the relationship. You even testified as to the plans you both have for the future and your plans to move in together.

[20] You submitted a letter of support and ID document from E. After reviewing these documents, which appear genuine on their face and which confirm your relationship to the same degree as you have testified, I do not have reasons to doubt the authenticity of the letter, therefore I give it full weight. I

[21] I find also that you have established on a balance of probabilities your relationship with E in Canada.

[22] Given your credible testimony and documents in support I therefore find that you have established on a balance of probabilities that you are a bisexual man. You testified that since coming to Canada you are now actively involved within the SOGIESC community, that you are a member of XXXX XXXX and XXXX and you participate in their activities and their meetings. You submitted a letter of support from XXXX XXXX. After reviewing this letter, which appears genuine as it is signed, dated and written on the letterhead and paper of XXXX XXXX, I do not have reasons to doubt your testimony of membership in the said communities. Therefore I give the letter considerable weight.

[23] I find on the balance of probabilities that you have established your membership in the SOGIESC community in Canada. Given your credible, straightforward and detailed testimony I find that you have established your sexual orientation on a balance of probabilities and therefore you have established your subjective fear of returning to Canada.

Well-founded fear of persecution

[24] In terms of well-founded fear of persecution I find that the evidence presented in support of your allegations do establish a serious possibility of persecution based on the analysis below.

[25] The Kenyan government has criminalized same-sex activity and actively persecutes members of the LGBTQ+ [2SLGBTQI+] community through arrests, violence, invasions and intrusions into their private lives.

[26] The NDP Kenya Tab 6.7 reports that individuals of diverse SOGIESC are commonly subjected to abuse, violent attacks, habitual arrests, forced rape and murder throughout Kenya through state actors, the Kenyan community and other members of their own families. Violence and discrimination against LGBTQ+ people are widespread and there has been an increase in conversion therapy and practices.

[27] Many LGBTQ+ people live in hostile homes and community environments due to their sexual orientation. Even LGBTQ+ human rights defenders have been attacked, tortured and killed for their efforts and beliefs.

[28] The NDP 6.7 also indicates that state authorities continue to engage in arrests under section 162, sub paragraphs (a) and (c) of the Kenyan penal code, which prohibits individuals from engaging in same-sex relations and activities, and this law is effective countrywide.

[29] The objective evidence supports the facts of your case that you have continued to live in hiding and in denial of your sexual orientation so that you could remain safe in Kenya. I therefore find that your subjective fear of persecution in Kenya is objectively well-founded.

State Protection

[30] In reviewing the country conditions on state protection in Kenya there is objective evidence in NDP 6.4.23 and NDP 6.7 to demonstrate that the police have outrightly failed in their responsibility to protect SOGIESC individuals. The police and the state are the agents of persecution. I find that no adequate state protection is available. Therefore the presumption of state protection is rebutted.

Internal Flight Alternative

[31] I find that the test for the IFA fails on its first prong. In Guideline 9, 8.7.1 it is well established in law that an IFA is not viable if a SOGIESC must conceal their SOGIESC in order to live in that location. Given the state’s capacity, criminalization of same-sex conduct and homophobic attitudes that exist countrywide in Kenya as outlined in the objective evidence earlier, I find that you would face persecution in all areas in Kenya. Therefore I find that there is no viable internal flight alternative in Kenya in your particular circumstances.

CONCLUSION

[32] Having considered all the evidence I find that you face a serious possibility of persecution in Kenya based on your sexual orientation. Consequently I find that you XXXX XXXX XXXX are a Convention refugee pursuant to section 96, and I therefore accept your claim.

——— REASONS CONCLUDED ———