Tag: PSG: SOGIE

2021 RLLR 17

Citation: 2021 RLLR 17
Tribunal: Refugee Protection Division
Date of Decision: July 9, 2021
Panel: Megan Kammerer
Counsel for the Claimant(s): Samuel E. Plett
Country: Russia
RPD Number: VC0-03444
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000066-000073

On July 9, 2021 the Refugee Protection Division (RPD) heard the claim of XXXX XXXX XXXX A.K.A. XXXX, who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral POSITIVE decision and reasons for decision. This is the written version of the oral decision and reasons that have been edited for clarity, spelling, grammar and syntax, where appropriate.

DECISION

[1] MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, who also goes by the chosen name of, XXXX XXXX, and is referred to as “the claimant” in this decision, as a citizen of Russia, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[2] In assessing this claim, I considered and applied the guidelines on sexual orientation and gender identity and expression; the SOGIE Guidelines, to ensure that appropriate accommodations remain in questioning the claimant, the overall hearing process, and in substantively assessing the claim.

Allegations

[3] The claimant alleges that they identify as a non-binary transgender person. They allege that they face persecution in Russia due to both their gender identity and because they are a person born biologically male and are married to another person who is male. The claimant alleges that they fear persecution and violence from Russian authorities, members of the public, and their family.

Determination

[4] I find that the claimant has a well-founded fear of persecution and is, therefore, a Convention refugee under section 96 of the Act.

ANALYSIS

Identity

[5] I find that the claimant’s identity as a national of Russia has been established on a balance of probabilities by their testimony and a copy of their passport.

Credibility

[6] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is a reason to doubt their truthfulness. In this case, I have found no reason to doubt the claimant’s truthfulness. The claimant testified in a straightforward and convincing manner and answered all of the questions posed to them.

[7] The claimant was able to speak in detail about their gender identity and their process of self-discovery, what it is like as a trans-gendered person in Russia, the discrimination they faced in Russia as a child, and the risks that they would face if they were to return to Russia.

[8] In addition, the claimant has provided an extensive number of documents which corroborate their claim. These include the following: various documents which establish the ongoing spousal relationship between the claimant and their Canadian spouse, XXXX, including bene-fit payments, car insurance, property assessments, and mobile account information; various photographs depicting the claimant with their Canadian spouse, XXXX. There are a number of different photographs of different events in 2019 and 2020, including the claimant and XXXX wedding; an affidavit sworn by the claimant’s biological father, which corroborates the claimant’s allegations, and which outlines how and when the claimant disclosed their gender identity and relationship with XXXX to him in 2018; an affidavit sworn by the claimant’s stepmother, which corroborates the claimant’s allegations, which confirms that she and the claimant’ s father are aware of the claimant’s gender identity and consider it genuine, and which outlines how distressed and fearful the claimant was when they learned they may have to return to Russia; an affidavit of support from the claimant’ s mother, which generally corroborates the claimant’ s allegations and which confirms that she is aware of the claimant’s gender identity and is aware of the claimant’s relationship with XXXX; an affidavit of support from a friend of the claimant. The friend attests that she knows the claimant as a non-binary, transgender person, and provides evidence about her experiences living as a gender non-conforming person in Russia; an affidavit of support from the claimant’s former partner, XXXX XXXX (ph), which generally corroborates the claimant’s allegations, attests to the fact that they were in a romantic relationship before the claimant left Russia, and confirms that they had plans to both leave Russia, so that they could be together in another country; a letter of support from a representative of the XXXX XXXX XXXX. which provides services and supports to families in Oakville, Ontario. The representative confirms that the claimant identified themselves as non-binary when registering for this support, and that they seem pleased that other staff and volunteers were so accepting of their identity; a letter of support from a clinical psychologist who treated the claimant in the United States. Psychologist confirms that the claimant had a series of appointments in XXXX and XXXX 2019, which centred on issues of gender identity and the claimant’s fear of having to return to Russia. The psychologist confirms that during this time the claimant presented openly as transgender and that they explored the claimant’ s “journey to discover their gender identity as transgender and non-binary”. The psychologist states that in his professional opinion —

COUNSEL: Madam Member, I don’t mean to interrupt, but it looks like the claimant’s video is frozen.

MEMBER: Can you still hear me?

CLAIMANT: I can hear, yeah.

COUNSEL: Okay.

MEMBER: Okay.

COUNSEL: It’ s just your video’ s frozen.

MEMBER: I’ll continue on.

COUNSEL: Yeah.

MEMBER: I’ll continue on, but if at some point you ‘re not able to hear or you cut out, please try to let us know.

CLAIMANT: Okay.

COUNSEL: If — if — if your audio cuts out, just come to the office where I am and then I’ll let the Member know.

CLAIMANT: Will do, yeah.

COUNSEL: Thank you.

[9] MEMBER: Okay. The psychologist states that in his professional opinion, the claimant’s expression of their gender identity as transgender and non-binary is genuine; a letter of support from the claimant’s physician in Canada, which confirms that when taking their initial health history, the claimant identified themselves as a non-binary person and mentioned potentially being interested in gender affirming therapy; a letter of support from the claimant’s former academic advisor in the United States, which generally confirms the claimant’s allegations; a letter of support from a friend of the claimant and their spouse, who attests to the fact that he often drove XXXX to the United States to meet the claimant, and that he was present at their wedding; a letter of support from a friend of the claimant, which indicates that they came out as transgender in 2019, and which indicates that the claimant is a XXXX of a XXXX called XXXX XXXX, which provides support and advocacy to transgender and non-binary individuals; a letter of support from a co-worker and friend of the claimant which confirms that he and claimant have discussed their gender identity and fear of returning to Russia as a LGBTQ+ person; and, a letter of support from a close friend of the claimant in the United States, which generally confirms the claimant’s allegations.

[10] The claimant also indicated that their spouse, XXXX, was available to act as a witness. I did not find it necessary to ask XXXX to testify, given the extensive documentary evidence submitted and the credible nature of the claimant’s testimony. I note that the claimant did not initiate a refugee claim in the United States even though they lived in that country for several years. They explained that this is because their spouse is Canadian and that they did not want to be separated from their spouse for the length of time it would take for their claim to be processed.

[11] The claimant also explained that the political climate in the United States at the time was negative and hostile towards LGBTQ+ persons and that they were afraid of being detained in unsafe conditions, given their status as a gender non-conforming individual. I accept this explanation and do not find that it undermines the claimant’s credibility or subjective fear.

[12] I note as well that the claimant has visited their mother in France and did not make a refugee claim there. The claimant explained that this was because they did not want to be separated from their Canadian spouse. I accept this explanation and do not find that it undermines the claimant’s credibility or subjective fear.

[13] I find the claimant to be credible and I believe what they have alleged in support of their claim.

Nexus

[14] The claimant alleges that they are at risk, due to both their gender identity and their perceived sexual orientation. I find that the persecution the claimant fears has a nexus to the Convention ground of particular social group; namely, transgendered individuals and individuals who are perceived to be LGBTQ+. I have, thus, assessed this claim under section 96 of the Act.

The Claimant’s Status in the United States

[15] The claimant lived in the United States from 2012 until 2019, during which time they were enrolled in a graduate program at the University of Massachusetts. The claimant testified that they had a student visa and has provided a copy of a certificate of eligibility for non-immigrant student status, as well as various other documents confirming their immigration status.

[16] The claimant testified that they became scared about the possibility of having to return to Russia when they graduated from their university program because they did not have permanent status in the United States, and that they explored the possibility of obtaining and employment visa; although this was ultimately unsuccessful.

[17] I find that the clamant does not have status substantially similar to that of a national or access to such status in the United States, and is, therefore, not excluded pursuant to Article 1(e) of the refugee Convention. I note that the claimant’s father is an American citizen and has been living in the United States since approximately 1997, and that the claimant’s mother is a citizen of France and has been living there since approximately 2010.

[18] The objective evidence in the National Documentation Packages for both countries indicates that the claimant, as an adult, does not have a right to citizenship of either country by a virtue of the parent-child relationship.

[19] I, thus, find that neither the United States nor France is a country of reference in this claim.

Well-Founded Fear of Persecution

[20] The claimant identifies as a non-binary transgender person. They testified that their earliest memories are of being gender non-conforming and recounted being bullied and harassed at school for presenting as too feminine. The claimant explained that they started the process of discovering their identity when they started college in Russia through exposure to the internet and Western sources.

[21] The claimant testified about the process of discovering their transgender identity and the role that their spouse, XXXX, played in that process. They reference the fact that they had experienced a lot of pressure to conform throughout their life and that XXXX was the first person who they could talk to about their gender identity and who supported their self-discovery.

[22] The claimant testified about the risks they would face if they were to return to Russia. They indicated that transgender people who do not fit into gender norms are at risk of physical violence. They reference being aware of several cases where transgendered people have been killed or injured due to their gender identity. They also indicated that, in general, Russian society is very hostile to transgender people and that their family in Russia would not be accepting of their identity.

[23] The objective evidence demonstrates that LGBTQI+ peoples, including those who are transgender and those who are perceived to be homosexual, face treatment in Russia that amounts to persecution. Although homosexuality has been decriminalised in Russia since 1993, in 2013, a law banning the promotion of “non traditional sexual relations” came into force.

[24] Sources cited Item 6.1 of the National Documentation Package indicate that the law is frequently invoked to punish the exercise of free speech by LGBTQI+ persons and their supporters. The government uses a law to restrict any materials that directly or indirectly approve of persons who are non-traditional sexual relationships and to limit the rights of persons who advocate for LGBTQI+ rights or express the opinion that homosexuality is normal.

[25] The United States Department of State Item 2.1 of the National Documentation Package identifies crimes involving violence or threats of violence against LGBTQI+ persons as one of the most significant human rights issues in Russia. There are reports of State actors committing violence against LGBTQI+ persons based on their sexual orientation or gender identity. There are also reports of government agents attacking, harassing, and threatening LGBTQI+ activists. Sources cited at Item 6.1 of the National Documentation Package further indicate that state controlled media engages in a “homophobic campaign”, which is directed against LGBTQI+ persons. Reports have identified a number of recurring themes and mainstream media coverage in Russia, including statements by public officials that portray LGBTQI+ identities as contradictory or Russian and Orthodox values and as a Western phenomenon imposed by Europe as part of an agenda to weaken and alienate Russia.

[26] The UK Home Office at Item 6.4 of the National Documentation Package reports that politicians use transphobic hate speech, which encourages stigma and intolerance amongst the population. Sources indicate that LGBTQI+ persons in Russia face discrimination and are exposed to the threat of violence in their places of study or work when searching for housing and when attempting to access medical care. This is so, even if an individual is not officially out, but simply presents as gender non-conforming. According to one source cited at Item 6.1 of the National Documentation Package, “even if LGBT individuals are not officially out, it is enough for individuals to be suspected of being gay or lesbian for them to be the subject of verbal or physical abuse. Failing to adhere to established gender norms in dress or behaviour, being overly affectionate to someone of the same sex or living with someone of the same sex are tantamount to coming out and can thus result in the risks set out above.”

[27] Sources indicate that medical practitioners limit or deny LGBTQI+ persons health services due to intolerance and prejudice. The Russian LGBT network representative cited at Item 2.1 of the National Documentation Package indicates that upon disclosing their sexual orientation or gender identity, LGBTQI+ individuals often encounter strong negative reactions and the presumption that they are mentally ill.

[28] Sources cited at Item 2.1 of the National Documentation Package also indicate that transgender persons are uniquely vulnerable to discrimination. This is in part because transgender persons face difficulty updating their names and gender markers on government documents to reflect their gender identity and because the government has not established standard procedures, and many civil registry offices deny their requests. When documents fail to reflect their gender identity, transgender persons face harassment by law enforcement officers and discrimination in accessing health care, education, housing, transportation, and employment.

[29] Moreover, the United States Department of State at Item 2.1 of the National Documentation Package, reports that the LGBTQI+ persons are particular targets of societal violence and that the police often fail to respond adequately to such incidents. For example, the Russian LGBT network reported that a transgender man was attacked while he was leaving a supermarket in the Kursk Region in April 2020. The assailant grabbed a man by the neck, beat him, and threatened to kill him. The man sustained serious injuries. Although he filed a report, the police did not investigate the incident and refused to open a criminal case.

[30] There are numerous other similar examples of the failure of the authorities to respond when violence or credible threats of violence are made against LGBTQI+ persons, and these are cited in the National Documentation Package.

[31] There are also reports that Item 2.1 of the National Documentation Package that the authorities have conducted involuntary physical exams of transgender persons, physically and sexual abuse transgender people, and subjected transgender individuals to detention, assault, harassment, and humiliating treatment. The UK Home Office reports at Item 6.4 of the National Documentation Package, that law enforcement personnel used violence and torture to extract confessions. As well, as is set out in the SOGIE guidelines, it is well-established in law that being compelled to conceal one’s gender identity or sexual orientation constitutes a serious interference with fundamental human rights, and a claimant cannot be expected to conceal their gender identity as a way to avoid persecution.

[32] It is apparent that the claimant has engaged in a significant measure of behavioural self-censorship while living in Russia, they have been unable to live openly as a non-binary transgendered person in Russia. The objective evidence in the National Documentation Package is overwhelming regarding the persecution and ill-treatment of member of the LGBTQI+ community, which includes transgendered persons, such as the claimant. I find that the claimant would face a serious possibility of persecution by the government as Russia — of Russia, as well as from non-state actors, if they were to return to their country of nationality.

State Protection

[33] I have considered whether adequate state protection is available to the claimant in Russia and conclude that it is not. A State is presumed capable of protecting its citizens to rebut this presumption, a claimant must establish on a balance of probabilities with clear and convincing evidence that their State’s protection is inadequate. In this case, I find it would be objectively unreasonable for the claimant to seek state protection in Russia because it is in part the State that the claimant fears due to its pattern of persecution and prosecution of sexual minorities.

[34] Further, the objective evidence demonstrates that there is no government support for LGBTQI+ persons in Russia and that the law does not prohibit discrimination against LGBTQI+ persons in housing, employment, or access to government services such as health care.

[35] I, thus, find on a balance of probabilities, that the State would be unwilling or unable to provide adequate protection to the claimant if they were returned to Russia. The presumption of state protection has been rebutted.

Internal Flight Alternative

[36] I have also considered whether a viable Internal Flight Alternative exists for the claimant and find that it does not. The evidence before me indicates that transgendered persons are persecuted throughout Russia. I, thus, find that the claimant faces a serious possibility of persecution throughout the entire country. The claimant does not have an IFA.

CONCLUSION

[37] For these reasons, I find that the claimant is a Convention refugee, and I accept their claim. All right. So that concludes my decision in your claim.

CLAIMANT: Thank you.

MEMBER: You — I want to thank you very much for participating in this hearing today, and I want to welcome you to Canada.

CLAIMANT: Thank you so much.

MEMBER: Yeah. Thanks as well to you, Counsel. So, what I’m going to do now, is I’ll stop the recording and then I will disconnect the proceedings.

COUNSEL: Thank you Madam Member.

———- REASONS CONCLUDED ———-

All Countries Nigeria

2021 RLLR 76

Citation: 2021 RLLR 76
Tribunal: Refugee Protection Division
Date of Decision: December 21, 2021
Panel: Lesley Stalker
Counsel for the Claimant(s): Daniel Etoh
Country: Nigeria
RPD Number: VC1-06497
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1] MEMBER: This is a Bench decision in the refugee claim of XXXX XXXX XXXX. Ms. XXXX is a citizen of Nigeria. When she initially filed her claim, she also filed a claim on behalf of her son. I am going to switch from third person to first person. Your son, XXXX XXXX XXXX was born in the US and as a citizen of that country. Both you and your son were seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. At the outset of the hearing, your Counsel advised that you would not be advancing any allegations of persecution or harm on behalf of your son against the US and that you would therefore be withdrawing your claim on behalf of your son. And so, the hearing focussed just on the risk that you would face in Nigeria.

ALLEGATIONS

[2] You set out your allegations in your Basis of Claim form and in the updated narrative, which the Board received on December 10, 2021. In effect, you say that you were at risk on two (2) counts. The first was at the hands of your former mother-in-law, XXXX. You say that XXXX seeks to kill you and to take your son away from you, and that her anger stems from the fact that you had a relationship with her husband and with her son. You also say that you are at risk of persecution in Nigeria because you are a bisexual woman.

DETERMINATION

[3] I find that you are a Convention refugee pursuant to section 96 of the Act because you are a bisexual woman.

ANALYSIS

Identity

[4] The first question is whether I am satisfied that you are who you say you are and I am. I find that you have established your identity through your testimony and your Nigerian passport, a certified true copy of which is on file.

Nexus

[5] The next question is whether your claim has a nexus or a Convention to any of the grounds, which are set out in the refugee Convention. These grounds include political opinion, religion, race, nationality, and particular social group. And I find that your fear of harm as a bisexual woman has a nexus to the Convention ground of particular social group. I therefore assessed that element of your claim under section 96 of the Act. Your fear of harm at the hands of your former mother-in-law does not have a nexus to any of the grounds in the refugee Convention. Rather, her actions are more in the nature of a personal vendetta against you, and I find that that aspect of your claim should be assessed under section 97 of the Act.

Credibility

[6] When assessing your credibility, I start from the Maldonado principle. This principle says that sworn testimony is presumed to be true unless there is good reason to doubt its truthfulness or its reliability. Overall, I found you were a credible witness. Your testimony accorded with the information in your Basis of Claim form and the revised narrative. You were born into a Muslim family in Nigeria. In your narrative, you describe a lengthy history of sexual and domestic violence dating back to childhood. You say the traumatic and unhappy childhood led you to become sexually active at a very young age. You entered a series of casual relationships sometimes with older men. One of these older men was known to you as the Colonel. While you were in a sexual relationship with the Colonel, you met XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, a man who was closer in age to you.

[7] In time, you came to know that XXXX was, in fact, the son of the Colonel. XXXX mother, XXXX, was incensed by you having a relationship with her husband and with her son. She threatened you and said that she would kill you if you had any kind of relationship with either of the men in her family. You took her threats seriously as she was politically very well connected and appears to have been wealthy. Her political connections relate to her being the daughter of the former Nigerian President, Obasanjo. In 2013, you and XXXX married in secret. He then left the country. This meant that you were quite vulnerable and you were run over by a motorcycle shortly after XXXX cautioned you that he had received a word that his mother was determined to harm you and that his mother had found out about the secret marriage. Your uncle was shot for no apparent reason while standing next to you.

[8] You fled to Dubai to get away from the risks posed by XXXX. In Dubai, you entered a relationship with a woman, XXXX, and with a man. Your husband found out about the relationship with the man and threatened to break off the marriage. To make a long story short, you persuaded XXXX to give you another chance. The two (2) of you went off to the United States on visitor’s visas. Shortly after arriving in the US, you learned you were pregnant. XXXX was angry. He refused to believe that the child was his and he walked away from the marriage. You gave birth in the US. You were unable to work there because you did not have status. You were living a very precarious lifestyle. After an unhappy and abusive marriage, you decided to try and regularise your status. You came to Canada and claimed refugee status here.

[9] So far, this story has focussed on your relationships with men. But in your narrative, you referred to sexual relationships with women dating back to your senior year of high school. Those were less relationships than sexual exploration, but you described the intimacy with female classmates in your senior year of school. You testified that XXXX, the friend and partner in Dubai, was your first real female lover and you said that relationship lasted approximately eight (8) months. You spoke movingly about your current partner, XXXX, with whom you have been living for close to two (2) years. You described how you met XXXX and the evolution of your relationship from a casual acquaintance to flat mates and then lovers. You said that your son, XXXX, who is now six (6) loves XXXX dearly and that the daycare treats her as XXXX second mom.

[10] You corroborated your account with many documents. Some of the documents were very difficult to read due to the poor quality of the image, but I was able to read them and to glean the most important information. The documents include the following. One (1), affidavit of your mother. Your mother confirms that you and she had a difficult relationship for many years. She corroborates many elements of your narrative including the fact that you tried to tell her that you were being sexually abused by a relative when you were a child, your secret marriage to XXXX, your former mother-in-law’s anger towards you, your former mother-in-law’s attacks on you and on your maternal uncle, and your former mother-in-law’s demands and threats that you handover your son.

[11] Your father…two (2), your father, your sister and your brother also filed affidavits. Each of these affidavits confirms many aspects of your narrative. In particular, your father describes an incident relatively recently in which your former mother-in-law sent thugs to his home demanding that you surrender your son to her. Three (3), your maternal uncle filed an affidavit confirming that he was shot while standing beside you. He says that, when the police were asked to investigate, the police arrested him on false charges of robbery and he attributes this, both the shooting and the police refusal to investigate to XXXX influence in Nigeria. You filed an affidavit from XXXX, the woman whom you say was your female lover in Dubai and finally, six (6), you filed an affidavit from XXXX, your current partner in Canada.

[12] You filed a number of other documents, which corroborate your account, but I don’t feel it’s necessary to review them in detail here. I have no reason to doubt the truthfulness of any of these documents, which are detailed and speak frankly about some of the difficulties that you and they have had over the years. I noted that none of the affidavits from your family refer to your relations with women. I asked you about that and you said that they do not know you were bi. You explained that, in Nigeria generally and in the Muslim community in particular, same-sex relationships are unthinkable. In the Muslim community, they are haram or taboo. You said it would be impossible to tell your family about this, at least at this stage of your life. You hoped to tell your parents about your relationship someday, but are not yet at a stage where you can do so comfortably. You said that one (1) sister in the UK knows that you were bi. The other sister is a devout Muslim and you cannot bring yourself to tell her of your…about your sexual identity.

[13] In addition to these written documents, your partner, XXXX, testified about your relationship. XXXX spoke comfortably and easily about your relationship and the role you play in her life. I asked her whether her family in Nigeria knows about her relationship with you and she said she cannot tell them due to the enormous stigma and shame attached to any kind of same-sex activity. In view of your credible testimony, the many corroborative documents that you have filed and the credible testimony of your current partner, I accept the allegations that you have set out in your BOC and your revised narrative. More specifically for the purpose of this claim, I am satisfied that you are a bisexual woman who has had relationships with women as well as men since your teenage years.

Well-Founded Fear of Persecution

[14] In the next section, I focus on the risk that you would face in Nigeria as a bisexual woman. The first question I must consider is whether you have established a subjective fear and harm in Nigeria if people learn that you are bisexual. I find that you have. You said…you described witnessing two (2) men who were outed in effect in Nigeria. You were a child at that time. You said the men were dragged naked from the home where they had presumably been engaged in same-sex relation. They were beaten by the mob. You said that you did not see the outcome. Your mother forced you inside. You said that, in Nigeria, it’s not uncommon for such mob incidents to result in burning or killing of the victims of the violence and your mother did not want you to see that. You stated that you would face not only persecution, but prosecution in Nigeria, that you could be arrested and sentenced to 14 years imprisonment and that in parts of the country, in particular the north, which is subject to Sharia law, you could be sentenced to death.

[15] I considered whether the fact that you failed to claim refugee status in the US detracts from your subjective fear of persecution. You said that you had been in the US for a number of years, but did not know that you could claim refugee protection. A Sudanese man told you about that possibility and gave you the contact information of a clinic. But when you sought advice from the clinic, you were told that the deadline for filing the claim had passed. And in the circumstances, I find that your failure to claim asylum in the US does not detract from your subjective fear of harm. So, in short, I find that you have established a subjective fear of persecution in Nigeria.

[16] The next question I must consider is whether your fear is well-founded and I find that it is. Same-sex sexual activity is a criminal offence in Nigeria. The country reports in the Immigration and Refugee Board’s National Documentation Package on Nigeria says that Nigeria’s federal criminal laws prescribed up to 14 years in prison for same-sex sexual activities. And these reports also note that persons convicted of same-sex activity in states, which are governed by Sharia law may be sentenced to death by stoning. The 2019 report of the International Lesbian, Gay, Bisexual, Trans and Intersex Association, IGLHRC, found at item 6.2 of the NDP says that Nigeria is one (1) of the most homophobic countries in the world. This reflects both the severity and comprehensiveness of Nigerian legislation that criminalises same-sex relationship, but also reflects the discriminatory and violent treatment meted out to LGBTI persons who are subject to arbitrary arrest, blackmail, physical and psychological abuse by the police, kidnappings, extortion, harassment, sexual attack, subjection to conversion therapies, pressure to marry, and involuntary outing by family and society alike.

[17] The Response to Information Request at tab 6.7 of the NDP describes how bisexuality is perceived in Nigeria. The RIR quotes the executive directive of the Women’s Health and Equal Rights Initiative where the executive director states that any sexual orientation that has not had heterosexual is considered unnatural, demonic and immoral in Nigeria. Bisexuality is usually conflated with homosexuality or lesbianism by heterosexual communities, and bisexuals who are discovered engaging in same-sex activity may be lynched, beaten, arrested, ostracised and disowned by family and community. A person who was outed for engaging in same-sex sexual behaviour will be seriously ostracised by their family, harshly excommunicated and threatened.

[18] I also note that the country reports indicate that the situation for lesbian or bisexual women is particularly dire. The RIR referred to above refers to a passage or a report by IGLHRC. The report says that lesbian and bisexual women experience subtle and explicit pressures that all women in Nigeria face. These pressures include marriage, child rearing, sexual harassment, threats of rape, assault and a lack of legal support. And so, as a bisexual woman who has already experienced gender-based violence and discrimination, I find that you face a double risk. As stated by the RIR report, bisexual women face overlapping and intersecting spheres of discrimination in Nigeria. Nigeria is described as a patriarchal and sexist country in which women are disproportionately affected by gender-based violence, sexism and patriarchy.

[19] Having considered your testimony and the objective country reports, I find that you have established a well-founded fear of persecution.

State Protection and IFA

[20] The next question is, whether you can seek protection from the state? In the event that you face persecution on the basis of your sexual orientation, I find that you cannot. Indeed, the state is one of the actors or agents of harm. As noted above, same-sex sexual behaviour is criminalised in Nigeria and the police harass and extort members of the LGBTQ community. I therefore find that there would be no state protection available to you. And in terms of whether you can avoid persecution as a bisexual by relocating to another part of Nigeria, the country reports confirm that the laws which criminalise same-sex sexual activity apply throughout the country as do the homophobic attitudes that have been described above. I therefore find that you would not have a viable internal flight alternative too. Having found that you have a well-founded fear of persecution on the basis of your sexual orientation, I have not considered whether you would also require protection from your former mother-in-law.

CONCLUSION

[21] Having considered the totality of the evidence, I find that you are a Convention refugee because of your membership in a particular social group, namely your identity as a bisexual woman. I therefore accept your claim.

———- REASONS CONCLUDED ———-

All Countries South Korea

2021 RLLR 75

Citation: 2021 RLLR 75
Tribunal: Refugee Protection Division
Date of Decision: November 19, 2021
Panel: David Jones
Counsel for the Claimant(s): Minhee Jo
Country: South Korea
RPD Number: VC1-05121
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

[1] This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada in the claim of XXXX XXXX XXXX XXXX a citizen of the Republic of Korea, also known as South Korea, who is seeking refugee protection pursuant to s. 96 and s. 97(1) of the Immigration and Refugee Protection Act.

[2] I have reviewed and applied both the Chairperson’s Guideline on Women Refugee Claimants Fearing Gender-Related Persecution and the Chairperson’s Guideline on Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[3] The claimant fears persecution due to her sexual orientation if she were to return to South Korea. The claimant also fears further abuse from her uncle.

[4] Details of the claimant’s allegations can be found in her Basis of Claim form. The following is a summary of her allegations and testimony.

[5] The claimant was raised by a single mother in Korea and as a result faced harassment in her childhood.

[6] The claimant was also sexually abused by her uncle when she was a minor in Korea.

[7] The claimant came to Canada in 1996 and studied in in Toronto from 1996 to 1999.

[8] On XXXX XXXX, 2003, the claimant returned to Canada as a visitor.

[9] The claimant’s last valid TRV expired on November 15, 2004, and she remained in Canada.

[10] The claimant described taking a long time to figure out her sexual orientation and how she has tried to escape, conceal, and hide herself from the world. The claimant described not having any relationships with women but that she has gone on a couple of dates with women. The claimant identified her sexual orientation as bisexual.

[11] The claimant has suffered from mental health issues, and she is currently being treated for 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. The claimant has attempted suicide on a at least two occasions in the past.

[12] In December 2019, the claimant applied for refugee protection.

DETERMINATION

[13] I find that the claimant is a Convention refugee.

ANALYSIS

Identity

[14] The claimant’s identity as a citizen of South Korea has been established by her testimony and passport located at Exhibit 1.

Nexus

[15] The allegations support a nexus to a Convention ground for the claimant based on her particular social group, namely her sexual orientation as a bisexual.

[16] The allegations and country condition documents support that the claimant’s risks arise from the intersection between her sexual orientation, her gender, and her mental health issues.

Credibility

[17] I find that the claimant is a credible witness.

[18] In making that finding I am relying on the principle that a claimant who affirms to tell the truth creates a presumption of truthfulness unless there are reasons to doubt their truthfulness.

[19] In this regard, the claimant testified in a consistent and straightforward manner that was consistent with her basis of claim form and supporting documents. The claimant was able to speak about her fears if she returned to Korea due to her sexual orientation. The claimant described how she is coming to terms with her sexual orientation and how does not like men, how she only dated one man and that was 22 years ago, and how she feels comfortable with women. The claimant testified that she has been introduced to the 519 and has been volunteering with the group since 2020. The claimant also described her ongoing fears from her uncle who abused her as a child and who is still in contact with the claimant’s mother in Korea. The claimant described not be open about her sexual orientation with her mother. Further, the claimant described her previous suicide attempts as well as an incident when she was a child and her mother attempted to kill herself and the claimant. The claimant also spoke positively about her improvements from treatment and medication she now receiving. There were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence.

[20] The claimant also provided documents to support her claim found at exhibit 5. For example, the claimant provided documents including her membership card and volunteer information supporting her involvement with the 519. The claimant also provided approximately 60 pages of medical reports from the XXXX XXXX XXXX XXXX XXXX XXXX in Toronto supporting the ongoing treatment the claimant has been receiving for her mental health. The reports also indicate that prior to the claimant’s refugee application the claimant described herself as bi-sexual to her mental health professionals. I have no reason to doubt the genuineness of the documents submitted by the claimant and since they relate to the claimant’s sexual orientation and her difficulties expressing her identity and the predate the claimant’s application for refugee protection, I place significant weight on these documents to support the allegations and overall claim.

[21] I find that the claimant has a subjective fear of returning to Korea even though she last arrived in Canada in 2003, she was without status in Canada since November 2004, and did not apply for refugee protection until December 2019. The claimant explained that during that time that she did not have any knowledge of applying for refugee protection and she was afraid of being forced to return to Korea. The claimant explained that she had not met many people in Canada. The claimant also said she decided she could not live any longer without saying that she wanted to have a relationship with a woman and that she needed to overcome her fears. The claimant testified that she never received treatment for her mental health issues before 2019. I do not make any negative credibility findings against the claimant for her lengthy delay. When making that finding, I am taking into consideration that the claimant has suffered trauma throughout her life. The claimant also suffers from significant mental health issues and that has led to her being socially isolated for most of her time in Canada.

Objective Basis

[22] The objective evidence supports the claimant’s fear of returning to Korea.

[23] As background, the US Department of State Report at item 2.1 located in the National Documentation Package for the Republic of Korea located at exhibit 3, describes the Republic of Korea (South Korea) as a constitutional democracy governed by a president and a unicameral legislature. The report lists few significant human rights issues in the country, but it does highlight corruption and laws criminalizing consensual same-sex sexual conduct between adults in the military. The report also indicates that many members of the LGBTI community keep their sexual orientation or gender identity secret due to fear of stigmatization.¹

[24] The 2021 Human Rights Watch report at item 2.2 opens by stating that: “the South Korean government, a democracy, largely respects most political, civil, and socio-economic rights but significant human rights concerns remain. Discrimination against women is pervasive, as is discrimination against lesbian, gay, bisexual, and transgender (LGBT) people, and racial and ethnic minorities.” The report goes on to indicate that while the “LGBT rights movement in South Korean grew but hostility and severe discrimination persisted.” The report also described that discrimination against women is widespread and how there is a 35% wage gap between men and women.²

[25] A report from Rainbow Action against Sexual Minority Discrimination found at item 6.4 indicates that LGBTI persons face discrimination and harassment in employment and education. The report also describes that the police in Korea do not aggregate hate crimes based on sexual orientation so only few cases can be known through the media. The report provides examples including an example of women being murdered because of her lesbian relationship. Further, the report states with respect to violence against LGBTI persons that “police investigators said the perpetrators committed crimes because they thought that victims are not likely to report to the police.”³

[26] Finally, an Amnesty International report at item 6.3, while focused on LGBTI people in South Korea’s Military, states that:

“Interviewees stated that LGBTI people in South Korea face pervasive discrimination and many hide their sexual orientation and/or gender identity from their families. Same-sex couples are not recognized under the law or by the judiciary. “Conversion therapy”, which claims to change a person’s sexual orientation, based upon the incorrect assumption that homosexuality is a mental disorder requiring treatment, is common according to one interviewee who experienced it.

Though criminalization is only applicable within the military and therefore to a small segment of society, the fact that approximately half of the population goes through compulsory military service early in life means that criminalization has a significant impact. Criminalization creates an environment where discrimination is tolerated, and even encouraged, based solely on who someone is. Many former and current soldiers consider this to be toxic.

Homophobic and transphobic individuals can view this law as tacit permission to target LGBTI people inside and outside the military. Discrimination and harassment can and does extend to South Korean organizations and events supporting LGBTI rights.”⁴

[27] With respect to the claimant’s mental health issues, a UN report found at item 2.9 describes concerns about “large number of individuals in mental health facilities were involuntarily hospitalized, that the grounds for involuntary hospitalization were broad and included circumstances in which the detained persons did not present a threat to themselves or others, and that procedural safeguards against involuntary hospitalization were inadequate.”⁵

[28] A 2020 BTI Country Report at item 1.6 states that “Mental health issues are not currently well addressed in Korea, as can be seen by the large numbers of suicides; the country has the second-highest suicide rate in the OECD.” The report indicates that the social welfare system is far below OECD standards. In addition, the report also states that discrimination remains a major problem in South Korea, particularly for women and LGBTI people. As an example, for women the report notes that South Korea has the largest gender pay gap in the OECD and was ranked 115 out of 149 countries evaluated in the world.⁶

[29] The claimant also provided country condition documents to support her claim. For example, at exhibit 5 is a report from the Lesbian Counseling Center in South Korea that states, when discussing the invisibility of sexual minority women in South Korea, that:

“However, this serious invisibility has not worked as protection for sexual minority women. Sexual minority women of ROK have been tormented by multilayered discrimination and violence under sexism, homophobia and transphobia which have intensified one another. Moreover, this tendency has grown stronger as society in general has become more used to assuming diverse types of gender non-conforming women simply as lesbians (or just as perverts). Even regardless of self gender identification or expression (for example, even cisgendered women not looking a bit masculine), people have been treated as erratic and deviant if they do not get married to opposite gender after certain age and/or are being involved in special relationship with person of their own gender. In this way, we can see the entanglement of issues of discrimination against women who go against the grain and the ones against lesbians.”⁷

Well-Founded Fear of Persecution

[30] I find that the claimant has established that she faces a serious possibility of persecution from the cumulative effect of the risks and discrimination she would face in South Korea based on her gender, sexual orientation, and her mental illness.

[31] It is well established that cumulative discrimination and harassment can constitute persecution. When determining whether cumulative discrimination and harassment constitutes persecution, it is necessary to evaluate the claimant’s personal circumstances and vulnerabilities including age, health, and finances.

[32] In this case, the claimant has only basic employment experience. The claimant is currently working part-time in a XXXX XXXX XXXX The claimant testified her previous employment has included as a XXXX and a XXXX. The claimant testified she has no family or friends to support her in Korea. Further, the claimant has described how her family has been a source of trauma both due to the sexual abuse from her uncle, from her mother who attempted to kill her in a suicide attempt, and from society when growing up because she came from a single parent household. The claimant also has numerous well documented mental health issues. While the claimant’s health is improving with the treatment she has been receiving, the claimant has attempted suicide previously and testified that due to the poor treatment of mental health issues in South Korea and her lack of finances, she believes she would be unable continue treatment if she were to return.

[33] The claimant’s personal circumstances, and her lack of support, makes her particularly vulnerable to the cumulative risks, discrimination, and harassment described in the objective evidence. As such, I find that the claimant has established a well-found fear of persecution were she to return to South Korea.

State Protection

[34] It is presumed that states can protect their citizens. This presumption can be rebutted with clear and convincing evidence of the state’s inability to protect its citizens.

[35] The issue is whether the South Korean authorities can reasonably be expected to provide the claimant with adequate protection if she were to return to South Korea. The documentary evidence reviewed above provides a somewhat mixed view when it comes to state protection in South Korea.

[36] It does show that South Korea is a democratic country with substantially effective police, civil authorities, an independent judiciary, and human rights organizations. However, it also highlights, for example in a Kaleidoscope Australia Human Rights Foundation report found at item 6.1, that while the National Human Rights Commission Act prevents discrimination against based on their sexual orientation that there are no specific laws in Korea punishing such discrimination nor laws providing remedy to victims of discrimination or violence against LGBTI persons. The report notes that discrimination against LGBTI persons exist in laws with respect to the military, adoption, censorship, and there is no same-sex marriage in the country.⁸

[37] The country conditions noted above indicate that the environment in South Korea is one where discrimination against LGTBI persons and women is tolerated and when considering all the cumulative risks the claimant faces, the objective evidence presents clear and convincing evidence that rebuts the presumption that the South Korean authorities would be able to provide adequate protection to this claimant in the future. As such, I find that there is no state protection available for the claimant in South Korea.

Internal Flight Alternative

[38] I have also considered whether there would be an internal flight alternative available to the claimant.

[39] The claimant testified that her risks based on her sexual orientation would be the same anywhere in South Korea.

[40] The objective evidence, as noted previously, highlight how the claimant faces a serious possibility of persecution based on her intersection as a woman, a member of a sexual minority, and a person with mental health issues. I find on a balance of probabilities that while there may be parts of South Korea, where one of those factors may have a lesser risk, the evidence as a whole indicates, including the claimant’s own experiences, that the claimant would still face a serious possibility persecution anywhere in South Korea.

[41] I find that there are no viable internal flight alternatives for the claimant in South Korea as there is insufficient evidence that areas exist in the country where conditions for the claimant in her particular circumstances would be significantly improved.

CONCLUSION

[42] For the foregoing reasons I determine that the claimant is a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act and the Board therefore accepts the claim.

(signed) David Jones

December 10, 2021

__________________________

^[1] National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 2.1: Republic of Korea. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021.

² National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 2.2: South Korea. World Report 2021: Events of 2020. Human Rights Watch. January 2021.

³ National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 6.4: Human Rights Violations against Lesbian, Bisexual Women, Transgender and Intersex People on the Basis of Sexual Orientation, Gender Identity, and HIV Status in the Republic of Korea. Rainbow Action against Sexual Minority Discrimination. February 2018.

⁴ National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 6.3: Serving in Silence: LGBTI People in South Korea’s Military. Amnesty International. 11 July 2019. ASA 25/0529/2019.

⁵ National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 2.9: Compilation on the Republic of Korea. Office of the United Nations High Commissioner for Human Rights. 31 August 2017. A/HRC/WG.6/28/KOR/2.

⁶ National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 1.6: BTI 2020 Country Report — South Korea. Bertelsmann Stiftung. 2020.

⁷ Exhibit 5 at page 209.

⁸ National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 6.1: Submission to the UN Universal Periodic Review regarding the protection of the rights of LGBTI persons in the Republic of Korea. Kaleidoscope Australia Human Rights Foundation. March 2017.

All Countries Malawi

2021 RLLR 74

Citation: 2021 RLLR 74
Tribunal: Refugee Protection Division
Date of Decision: June 14, 2021
Panel: Jennifer Smith
Counsel for the Claimant(s): Kate Forrest
Country: Malawi
RPD Number: VC1-02500
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1] MEMBER: Alright we are back on the record.

[2] These are the reasonsfor decision in the claim of XXXX XXXX XXXX a citizen of Malawi who is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3] In rendering my reasons I have considered and applied the chair person’s guidelines on women refugee claimant’s fearing gender related persecution and the chair person’s guidelines on proceedings before the IRB involving sexual orientation and gender identity and expression.

[4] Miss XXXX you are Zambian born citizen of Malawi and allege that you are at risk of harm in both Zambia and Malawi because you are a lesbian and you have been recently diagnosed with HIV. You believe you are at risk in both countries from family members, the state and civil society.

DETERMINATION:

[5] In my determination I find that you are a Convention refugee in accordance with Section 96 as you have established a serious possibility of persecution.

[6] I note that Canadian jurisprudence and the gender guideline makes it clear that RPD members are to consider the interplay between multiple grounds of persecution advanced by a claimant. I find the persecution you face has separate and intersecting connections to the convention on account of your membership in particular social groups based on both sexual orientation and HIV status.

IDENTITY:

[7] With respect to identity, I find that your identity as a national of Malawi is established by the passport and other identity documents in evidence at Exhibits 1 and 5.

COUNTRIES OF REFERENCE:

[8] With respect to countries of reference in your claim, you through your counsel have agreed that you also have access to citizenship in Zambia.

[9] I note that this position is consistent with the country conditions evidence before me, specifically the National Documentation Package for Zambia at Tab 3.3, which indicates that a person born in Zambia to a parent with Zambia citizenship also has access to Zambian citizenship.

[10] Because a refugee claimant must demonstrate that they have a well founded fear of persecution in all countries of nationality before they can receive refugee protection in Canada, I must assess your claim with respect to both countries of reference in your claim these countries of reference are both Malawi and Zambia.

CREDIBILITY:

[11] With respect to credibility, I find you to be a credible witness and I believe what you have alleged in support of your claim.

[12] I note as well that you have provided significant corroborative documentary evidence in relation to both aspects of your claim and I find that through your testimony and the supporting documents at Exhibits 5 and 6 you have established on a balance of probabilities both your sexual orientation and your HIV status.

OBJECTIVE EVIDENCE:

[13] To establish your status as a convention refugee you had to show that there was a serious possibility that you would be persecuted if you were removed to either of your countries of nationality and I find that you have met that burden.

[14] As noted just a moment ago, I accept that you have established that you are a lesbian woman with a HIV diagnosis.

[15] In my view it is important to assess the objective evidence relating to the prospective or forward facing risk for you in each country with the express acknowledgement that your claim engages inter-related grounds of persecution and that each increases the risk of persecution in relation to the other. In other words, they are not truly separate or separable.

[16] First with respect to Malawi, the country conditions evidence reflects a nation in which state institutions are deeply impacted by corruption, where the law criminalizes sexual minorities and where person’s living with HIV are mistreated by civil society, state and medical system actors.

[17] Sources in the National Documentation Package from Malawi at Chapters 2, 5 and 6 and your own documents at Exhibit 5 confirm that consensual same sex activity is illegal and the law does not prohibit discrimination against LGBTI persons.

[18] Sexual minorities risk mob attacks, routine violence and discrimination in almost all aspects of life, according to a Human Rights Watch report that is located at Tab 6.1 of the NDP.

[19] As well, very recently the Malawi Parliament in amending the penal code to expand criminalization of same sex sexual activity to women as well.

[20] I find that the risk you face in Malawi is further magnified by your HIV status. The country conditions documents, also demonstrates severe stigma, ostracism and discrimination for persons living with HIV, including in accessing and receiving medical care.

[21] I find that your HIV status alongside rapid, official and social homophobia in Malawi amounts to persecution and I find there is a serious possibility of persecution for you if you were to return to Malawi.

STATE PROTECTION MALAWI:

[22] I also find there is clear and convincing evidence before me to rebut the presumption of adequate state protection in Malawi. According to the sources already cited, you fear state actors with good reason, given the criminalization of homosexuality and the fact that you are a lesbian. The presumption of state protection in Malawi has been rebutted.

INTERNAL FLIGHT ALTERNATIVE MALAWI:

[23] I have also considered whether a viable internal flight alternative exists for you and given the illegality of your sexual orientation in Malawi I find that you face a serious possibility of persecution throughout the country.

[24] Second with respect to Zambia, the country conditions evidence it Exhibit 5 is similarly clear about the National Documentation Package for Zambia and your documents at Exhibit 5 is similarly clear about the existence of laws criminalizing same sex, sex acts and a context of social and state sponsored homophobia.

[25] In Zambia sexual minority persons living with HIV are further stigmatised in relation to healthcare and have been expressly excluded from the countries national framework for addressing HIV. Both persons with sexual minority identities and persons living with HIV are severely mistreated and stigmatised in all aspects of life in Zambia and the risk of persecution is even greater for persons with both of these identities, that is persons that are both sexual minorities and living with HIV.

[26] Because of your identification as a lesbian and your HIV diagnosis, I find there is a serious possibility of persecution for you if you were to return to Zambia.

STATE PROTECTION ZAMBIA:

[27] With respect to state protection I find it would be objectively unreasonable for you to seek protection in the state for Zambia, given the current legislation and the fact that the government is an agent of persecution. The presumption of state protection has been rebutted in Zambia as well.

INTERNAL FLIGHT ALTERNATIVE ZAMBIA:

[28] And finally I have considered whether a viable internal flight alternative exists for you in Zambia. I find that it does not, on the evidence before me I find there is a serious possibility of persecution throughout the country, since the laws apply across the country and you cannot be expected to hide from the state.

CONCLUSION:

[29] So for the reasons I have just outlined I conclude that you are a Convention refugee in accordance with Section 96 of the Immigration and Refugee Protection Act. I accept your claim.

[30] So that is the end of my decision and just before we leave today Miss XXXX I want to say thank you very much for your testimony and good luck to you.

[31] CLAIMANT: Thank you, thank you so much for accepting me.

———- REASONS CONCLUDED ———-

All Countries Iran

2021 RLLR 73

Citation: 2021 RLLR 73
Tribunal: Refugee Protection Division
Date of Decision: October 20, 2021
Panel: Isis Marianne van Loon
Counsel for the Claimant(s): Juliette Ukpabi
Country: Iran
RPD Number: VC1-02405
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1] MEMBER: This is the decision in the Refugee Protection Division in the claim of XXXX XXXX as a citizen of Iran who is claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons, I have considered and applied the Chairperson’s guidelines on women refugee claimants fearing gender related persecution as well as the Chairperson’s guidelines on proceedings before the IRB involving sexual orientation and gender identity and expression.

[2] Your allegations are set out in your Basis of Claim form and by your testimony, the following is a very brief summary. You are a lesbian and you fear persecution in Iran as a result.

DETERMINATION

[3] I find you are a Convention refugee as you have established a well-founded fear of persecution based on a Convention ground.

IDENTITY

[4] Your identity as a national of Iran is established by your testimony and the supporting documentation on file including a certified true copy of your passport in Exhibit 1.

CREDIBILITY

[5] The presumption before me is that your testimony is true; however, this could be rebutted in appropriate circumstances if there were inconsistencies or contradictions, omissions or undetailed testimony and the Presumption does not apply to inferences or speculation for which there is no evidentiary basis. You provided in Exhibit 4 credible documentation in support of your claim.

[6] There are text exchanges between you and your father where you are asserting your right to make your own decisions and he is stating that you don’t have that right and that you need to return and get married. Your father states in these exchanges that in awhile you’re going to run out of money and you’ll come begging and he threatens to kill you if you don’t return. You reply that he should stop threatening you and said that you would rather die in a corner of a street than have your father or someone else that he has chosen for you control your freedom, your life, and your right to decided.

[7] There are also exchanges between your uncle XXXX and your father. Your father accuses XXXX of using black magic on you to make you turn against him and XXXX tells your father that you are able to decide for yourself. Your friend XXXX writes from Iran and states that you came out as a lesbian when you were about 13. She further describe a situation that you would face in Iran where you would have to marry and would risk persecution if your sexual orientation were ever exposed and XXXX included a copy of her passport.

[8] There is a letter from the Centre for Newcomers which confirms your attendance at various LGBTQ+ events and workshops and you provide copies of certificates of completion for some of these workshops. Your uncle XXXX letter confirms that he sponsored you to Canada as he was aware of the daily abuse that you were enduring and your lack of safety in Iran. He found a school and a place for you to live and he was able to convince your father to let you come to study.

[9] At the time, your uncle was unaware of your sexuality but you came out to him after your father began to pressure you to return to marry a man of your father’s choosing. Your uncle actually – threat, was threatened by your father and your uncle describes the religious intolerance of your family in Iran and states that as a lesbian woman, you have no place in Iran and you would be persecuted and he provided a copy of his photo ID. I found these documents were relevant and they corroborate your allegation that you are a lesbian.

[10] Furthermore, your testimony was straightforward and forthcoming. You spoke without hesitation and in detail. There were no inconsistencies between your testimony or contradiction between your testimony or the other evidence before me. I found you to be a credible witness and therefore I believe what you have alleged in support of your claim. I find that the persecution that you face has a nexus to one of the five convention grounds, that of your membership in a particular social group as a lesbian, a member of the LGBTQ+ community. Therefore, I have assessed your claim under Section 96.

[11] I could equally have analyzed your claim on the basis of your gender alone as a woman from Iran, but it wasn’t necessary to do so given the former. In order to be considered a Convention refugee, you have to demonstrate a well-founded fear of persecution. This includes both a subjective basis, an objective basis, and it has to be forward looking. Based on your testimony, supporting documents, and the country condition documents, I find you have a well-founded fear of persecution for the following reasons: You told me how you had to hide yourself when you were in Iran. You could never speak about your sexuality with anyone but that one friend, the one person in Iran who knows about your sexuality. You tried your best to act appropriately, you said you did everything right so that no one would suspect you, you tried to conform to what a girl should be and act like, you never disobeyed, you never did anything rebellious because you were scared to death. You said from the moment that you discovered your sexual orientation and in light of the view of Iranian people about LGBTQ people, you hid yourself and until this day, no one in Iran but that one friend and your uncle who lives here in Canada knows about your sexual orientation because you were too frightened to tell them.

[12] Two months before you finished high school in Canada, your father called and told you that he had found you someone to marry. You refused and he insisted. You explained to me that if you don’t go back and marry this man in Iran, your father perceives it as ruining his reputation in the community and inaudible honour as a man. You said that when he first told you you had to return, you tried to drag it out, you said you couldn’t get a flight, the pandemic and so on, but you hadn’t even actually checked. You just said it to put him off. You dragged it out until June when you were supposed to graduate but in the meantime, you had searched online for help and you applied for asylum and continued to refuse your father’s demands and you eventually blocked him from contacting you.

[13] For a while you heard nothing but then you received e-mails in October 20. They were basically death threats. Your father told you you were going to run out of money and that your uncle would stop supporting you and then you were going to have to come back to Iran. So I find that you have induced sufficient credible evidence to establish a subjective fear of persecution if you were to return to Iran. You told me that your father and in fact the whole Islamic Republic believes that a father owns his children, especially when you are talking about his girl, his female children. You have no say and no choice in Iran, you cannot make a decision of your own because based on Islamic beliefs, women are only half that of men.

[14] You described to me your first job at XXXX XXXX XXXX XXXX, how happy you were to have this job because you had not even been allowed to go to the grocery to shop on your own in Iran, and you had never been allowed to work. When you were informed that you had got the job, you were so excited that you said you were walking on clouds, it was one of the happiest moments of your life and you have been there now since XXXX 2020 and you’re now being promoted and how hard you worked to get that promotion. You also spoke about how happy you were simply to have a savings account as you had never been allowed to have one in Iran. You told me about coming out to your uncle. You said you gathered all of your courage and it was extremely hard, you were unable to look in his eyes and you felt like what you were saying was wrong and sometimes you said you still feel wrong for being like this referring to your sexuality but you said your uncle is an amazing man and he accepted you, He said “It’s okay, I don’t care who you are going to love as long as you’re happy” and you said that is what you had wanted to hear your entire life. I asked you what would need to change in Iran for you to live there safely, and you had no shortage of things that needed to change. You said the whole government needs to go, it’s under the Islamic Republic, and it’s run by religious leaders. You said that Islam is really involved with the law, everything is based on Islam and Sharia law. For you to be able to live freely as a lesbian in Iran, they would have to separate religion from the law so that they wouldn’t judge and punish people based on religion.

[15] You said LGBTQ+ people are criminals based on Sharia law, you don’t have an identity of your own, and it is considered a form of sickness. If you are perceived or exposed as homosexual, you need to go in front of a judge and defend yourself and convince them that you are not, and if you can’t do that, you will be punished and the punishments range from flogging to the death penalty. You said because of the way the country is run, the people have developed the same ideas and opinions as the religious leaders about the LGBTQ community and socially LGBTQ people are not accepted in Iran and the country documentation is consistent with your testimony on this. The U.S. Department of State confirms human rights abuses including crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, and intersex persons, and the criminalization of LGBTI status or conduct. The law criminalizes consensual same sex activity punishable by death, flogging, or a lesser punishment. The UK home office reports that the Islamic penal code criminalizes same sex sexual relationships and it confirms punishments ranging from lashes to the death penalty.

[16] LBGTI persons face a variety of abuse by government authorities including beatings, verbal assaults, rape, sexual assault, and torture. Furthermore, not only are LGBTI persons who openly express their sexual orientation and/or gender identity or expression likely to face mistreatment and persecution from state actors, they will also face discrimination and ill treatment from societal actors which by its nature and repetition is likely to amount to persecution. According to the International Gay and Lesbian Human Rights Commission, in present day Iran, lesbian, gay, bisexual, and transgender individuals suffer from human rights violations and are denied the basic freedom of being who they are. Abuses are perpetrated by the Iranian government, the judiciary, and by non-state actors such as schools, communities, and families. No one is held accountable for these serious violations of basic rights. So I find the treatment of LGBTI people in Iran amounts to persecution and accordingly, I conclude that your fear of persecution in Iran is well-founded.

STATE PROTECTION AND INTERNAL FLIGHT ALTERNATIVE

[17] States are presumed to be able to protect their citizens; however, in this case, the agent of persecution is the state and the persecution would face is at the hands of the authorities so accordingly I find there is no state protection available to you and the presumption of state protection is rebutted. The state is in control of all of its territories and therefore I find there is a serious possibility of persecution throughout Iran and there is no viable Internal Flight Alternative where you could safely relocate in the country available to you in your particular circumstances.

CONCLUSION

[18] Based on the totality of the evidence, I conclude that you are a Convention refugee. Accordingly, I have accepted your claim.

———- REASONS CONCLUDED ———-

All Countries Moldova Romania

2021 RLLR 72

Citation: 2021 RLLR 72
Tribunal: Refugee Protection Division
Date of Decision: April 30, 2021
Panel: David Jones
Counsel for the Claimant(s): Robert William W Young
Country: Moldova and Romania
RPD Number: VC1-01442
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1] MEMBER: So, this is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada for the claim of XXXX XXXX, who is a citizen of Moldova and Romania, seeking refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] I have also reviewed and applied both the Chairperson’s Guideline on Proceedings Before the IRB Involving Sexual Orientation and Gender, Identity and Expression, and the Chairperson’s Guideline on Women Refugee Claimants Fearing Gender-Related Persecution.

ALLEGATIONS

[3] The claimant fears persecution due to her sexual orientation as a lesbian if she was to return to Moldova or live in Romania. Details of the claimant’s allegations can be found in her Basis of Claim form and attached narrative. The following is a brief overview of her allegations and testimony.

[4] The claimant is a citizen of both Moldova and Romania. The claimant lived in Moldova and has only visited Romania a few times. Around 2012, while in high school, the claimant started to identify to herself as a lesbian. In 2014, the claimant moved to the capital of Moldova. In 2015, the claimant started dating her girlfriend, XXXX. The claimant described, in her allegations, numerous accounts when she was harassed and physically assaulted due to her sexual orientation, including two (2) incidents when she was assaulted by strangers that required her to receive medical treatment.

[5] In the summer of 2018, the claimant went to visit her family when her parents discovered a message from her girlfriend. The claimant’s parents were furious because of her sexual orientation and the claimant left and returned to the capital. The claimant has not spoken with her father since then. Towards the end of 2018, the claimant’s mother warned her that her father wanted to organize a corrective rape. Around April 2019, the claimant’s mother warned the claimant that her dad was looking for her in the capital. The claimant went into hiding by staying with friends. On XXXX XXXX XXXX 2019, the claimant arrived in Canada. In August 2019, the claimant applied for refugee protection.

DETERMINATION

[6] I find that the claimant is a Convention refugee.

ANALYSIS

Identity

[7] The claimant’s identity as a citizen of both Romania and Moldova has been established on a balance of probabilities by her testimony, as well as her Romanian passport and Moldovan identify card located at Exhibit 1. Given the claimant has two (2) countries of reference, she needs to establish a claim against both countries.

Nexus

[8] The allegations establish a nexus to a Convention ground for the claimant based on particular social group, both based on the claimant’s sexual orientation as a lesbian and as a woman facing gender-based violence.

Credibility

[9] I find that the claimant was a credible witness. In making that finding, I am relying on the principle that a claimant who affirms to tell the truth creates a presumption of truthfulness, unless there are reasons to doubt their truthfulness. In this regard, the claimant testified in a consistent and straightforward manner that was consistent with her Basis of Claim form, narrative, supporting documents and the witness.

[10] The claimant was also able to speak clearly about her relationship with XXXX, of first when she started identifying as a lesbian, the conditions for sexual minorities in both Moldova and Romania. She was able to answer questions about the physical attacks she received, and she was able to explain the risks to living openly as a sexual minority in either country. Including the risks of physical violence and discrimination with respect to housing and employment. The claimant was also able to answer specific questions when asked. The claimant provided her partner XXXX as a witness. The witness was also able to testify clearly about her relationship with the claimant, the conditions in Moldova, why she believes the conditions are the same in Romania, and I found that the witness was credible as well.

[11] The claimant provided documents to support her claim. For example, documents found at Exhibit 4, include, medical reports describing injuries received by the claimant; a statement from her partner, XXXX, supporting the claimant’s allegations; photographs of injuries the claimant and her partner received. In addition, Exhibits 5 and 6 contain additional medical reports, copy of the claimant’s lease agreement. I have no reasons to doubt the genuineness of these documents. And since they relate to significant aspects of the claimant’s allegations, including her sexual orientation and the physical assaults that occurred because of her sexual orientation, I place significant weight on these documents to support the claimant’s allegations and overall claim.

[12] I find that given the claimant’s credibility and supporting documents, the claimant has established, on a balance of probabilities, the facts alleged in her claim. Including her sexual orientation as a lesbian and her subjective fear of being persecuted if she were to return to either Moldova or Romania.

Objective Basis—Moldova

[13] The objective evidence supports the claimant’s fears of returning to Moldova. The country condition documents found in both the National Documentation Package, which is located at Exhibit 3.1 and those provided by the claimant at Exhibit 4, indicate that societal attitudes against sexual minorities is widespread and pervasive in the country.

[14] For example, a 2019 US Department of State report found at Item 2.1 in the National Documentation Package States that,

[As Read] The law prohibits employment discrimination based on sexual orientation, but societal discrimination based on sexual orientation and gender identity continued. The LGBTI community reported verbal and physical abuse. In most cases, police were reluctant to open cases against perpetrators. According to a survey conducted by the Anti-Discrimination Council in 2018, the LGBTI community had the lowest societal acceptance rate of any minority group.

[15] The 2017 report on the Human Right Situation of Lesbian, Gay, Bisexual, Trans and Intersex People found at Item 6.1 indicates that derogatory public statements and violence directed towards LGBTI people continued. The report describes an incident where a lesbian woman reported to the police that her mother verbally and physically attacked because of her sexual orientation. The police registered the report as the victim being the instigator and police also contacted child protection services about the victim’s child and disclosing the victim’s sexual orientation and stating that she was mentally unstable.

[16] The victim provided country condition documents related to Moldova to support her claim that are found at Exhibit 4. These documents include a 2020 version of the US Department of State report for Moldova that indicates that conditions have not improved since the 2029 (sic) report and states that,

[As Read] The LGBTI community remained among the groups that were most vulnerable to hate speech and were subjected to the most aggressive and violent speech registered by authorities.

[17] Exhibit 4 also has a 2017 news article that describes how the situation of LGBT rights in Moldova, and notes that while there are pride marches that are protected by police and laws protecting LGBT people from discrimination, LGBT people are subject to bias-motivated violence. The article notes that Moldova is one (1) of the most homophobic countries in Europe, where two (2) thirds of Moldovan society believes that LGBT people should be kicked out of the country and only one (1) percent would be ready to accept an LGBT person as a family member. The article also quotes the president of Moldova who stated, “I never promised to be the president of the gays.” In relation to his open opposition to a proposed pride parade.

[18] I note that numerous reports from both the NDP and the claimant’s documents indicate that sexual minorities face discrimination with respect to housing, employment and obtaining medical treatment in Moldova. The claimant’s own experience with being a victim of physical attacks and having to change her residence, both of those on more than one (1) occasion, unfortunately demonstrate examples of the societal attitudes in country conditions in Moldova noted above.

Objective Basis—Romania

[19] The objective evidence also supports the claimant’s fears of resettling in Romania. As with Moldova, societal attitudes towards sexual minorities indicate widespread intolerance and hate. See for example a 2019 European Commission report found at Item 2.7 in the National Documentation Package for Romania, which is found at Exhibit 3.2 and the 2018 UN Report at Item 2.9.

[20] A US Department of State report from 2020 at Item 2.1 states that significant human rights issues include a lack of investigation and accountability for violence against women. The report also indicates that while discrimination based on sexual orientation is prohibited by law, societal discrimination against LGBTI persons was common. Further, the report indicates that police not only do not adequately respond to violence against LGBTI person, on some occasions, police approve the violence. Finally, the report states that,

[As Read] A survey carried out by the EU’s Fundamental Rights Agency reported and revealed that 15 percent of respondents experienced physical or sexual attacks motivated by the victim’s sexual orientation or gender identity during the past five (5) years. Out of respondents who described the most recent physical or sexual attack, only four (4) percent reported the incident to authorities because they are LGBTI. As many as 28 percent of respondents indicated fear of homophobic reaction, transphobic reaction, or both from police as a reason for not report physical or sexual attack.

[21] The claimant provided country condition documents related to Romania to support her claim that are also found at Exhibit 4. These documents include a 2017 news article highlighting that only 36 percent of Romanians believe that LGBT should have the same rights as heterosexuals. The article also describes incidents of the police failing to intervene or receiving complaints from LGBT individuals who experience violence and abuse (inaudible).

[22] Exhibit 4 also contains a 2019 European Commission report that states that, “There is a hostile atmosphere towards LGBT persons in Romania, which renders them targets of violence.” That report also indicates that discrimination on the grounds of sexual orientation is very widespread. Further, the report quotes a survey indicating that only seven (7) percent of respondents would accept a homosexual as a relative, only 12 percent as a colleague and states that, “These extremely low levels of societal acceptance contribute to significant discrimination and stigmatization against LGBT persons in key areas of life.”

[23] Further, Exhibit 4 contains a 2020 news article that similarly states that,

[As Read] Violence against women in the LGBTQ community is still heavily overlooked and dismissed by authorities. That is when they do not inflict it themselves as it regularly happens.

[24] Based on the totality of the evidence before, I find that the claimant has established a well-founded fear of persecution for her. In her particular circumstances and in light of the cumulative risks of discrimination and harassment that the claimant would face if she were to return to Moldova or resettle in Romania based on her membership in a particular social group as a lesbian. I also find that the claimant’s risks are heightened because of the risks she faces from her father.

State Protection

[25] Based on the evidence noted in the country conditions above, indicating that authorities both in Moldova and Romania are often indifferent and sometimes hostile towards sexual minorities, I find that there is no operationally effective state protection available to the claimant in these circumstances. For example, the report at Item 2.6 in the National Documentation Package for Moldova states that,

[As Read] LGBT person s in Moldova face difficulty getting access to justice, with police officers appearing to be primarily concerned with the victim’s sexuality, rather than any crime committed against them. In the same report Amnesty found that gay men may be the subject to blackmail and extortion by corrupt police officers at known gay meeting points who exploit for fear of exposure.

[26] And with respect to Romania, the report at Item 2.7 states that,

[As Read] Although the LGBTI minority is explicitly protected by Anti-Discrimination Law, it remains the group most under attack, being subject of legislative proposals aiming to restrict LGBTI rights and the target of acts of aggression during NGO organized events. These attacks remain uninvestigated and have attacked no sanctions, suggesting that authorities are liable for reluctant indifference (which) would be tantamount to official acquiescence to, or even connivance with, hate crimes.

[27] As such, the claimant has rebutted the presumption of state protection.

Internal Flight Alternative

[28] For the reasons below, I find that the claimant does not have an internal flight alternative. When determining whether an internal flight alternative exist in Moldova or Romania, I must find both that a claimant would not face a serious possibility of persecution in a proposed internal flight alternative and that conditions in that part of the country are such that it would be objectively reasonable in all the circumstances. Including those particular for the claimant to seek refuge there. The objective evidence noted above previously supports the finding that there is a serious possibility of persecution that would exist for this claimant throughout either country.

[29] As noted above, the objective evidence indicates that there is deep-rooted prejudice against the LGBTQ community in both Moldova and Romania. That the intolerance exists throughout both countries. There is no evidence in either the country condition documents, the claimant’s testimony or the witness testimony to indicate that there is a place in either country where the conditions for sexual minorities are significantly better.

[30] Based on the totality of the evidence, I find that the claimant has established that there is no viable internal flight alternative available to her as I find that the claimant would face a serious possibility of persecution throughout Moldova or Romania due to the prevalence of violence against the LGBTQ community.

CONCLUSION

[31] For the reasons above, I determine that the claimant is a Convention refugee pursuant to Section 96 of the Act, and the Board, therefore, accept her claim. Given that I am granting protection under Section 96 of the Act, I find it unnecessary to consider the claim under Section 97.

———- REASONS CONCLUDED ———-

All Countries Morocco

2021 RLLR 71

Citation: 2021 RLLR 71
Tribunal: Refugee Protection Division
Date of Decision: June 24, 2021
Panel: Kristy Sim
Counsel for the Claimant(s): Mo Vayeghan
Country: Morocco
RPD Number: VC0-04508
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1] MEMBER: This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada being delivered orally on June 24^th, 2021 in the claim of XXXX XXXX. I have considered your testimony and the other evidence in the case and I’m going to give you my decision orally. You will, however, receive a written transcript of this decision in the mail. Throughout the hearing and in in making my decision, I have considered and applied Chairperson’s Guidelines Guideline 9 as this case involved sexual orientation, gender identity and expression as well as Chairperson’s Guideline 4 which relates to gender-based persecution as that also relates to the nature of the allegations and the availability of a viable IFA.

[2] The decision I have reached is a positive one (1) and I accept your claim. I find that you are a Convention refugee, and my reasons follow.

[3] You are a citizen of Morocco and are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[4] To summarize your allegations which are set out in full in your Basis of Claim form at Exhibit 2. You are a 24-year-old woman originally from Rabat who identifies as a lesbian. Starting around the age of 13, you noticed that you were attracted to girls. Your family lived in various countries as you grew up due to your father’s job and when your family returned to Morocco when you were 15 years old, you began to attend what you’ve described as a liberal minded French high school. The school was a bit more open than society, but you still didn’t feel safe being open about your sexuality other than to a few friends of yours. Your first same-sex relationship was with a classmate at this school who was named XXXX and you were about 18 years old. You mostly hung out with her in her bedroom and would play video games and do other activities. Due to the criminalization of same-sex relationships, you two (2) were very careful when you went out together in public. You intended to go to school abroad because you felt the need to escape Morocco in order to not live-in fear or in secret. You came to Canada as a student in 2015, the same year that you graduated from high school; and have been on student visas in Canada since then.

[5] You filed for refugee protection in late 2020. You explained that you did so then because you knew that you liked living in Canada, that you could see yourself with a future here and because going back to Morocco was not an option for you given your sexual orientation. You have not told your father that you are a lesbian as you are afraid of his reaction and his possibly rejecting you. Recently, your mother asked you if you would be interested in dating women and when you told her you would, she moved on with the conversation and did not ask you any further questions which led you to believe that she wasn’t really ready or open to talk about that yet. You fear that if you return to Morocco, you will face persecution, possibly even arrest as well as other risks due to your sexual orientation.

Identity

[6] Your identity as a national of Morocco is established by your testimony as well as documents including your passport that has several visas in it which is Exhibit 1. You testified about the information in your identity documents is consistent. I have no reason to question their authenticity and so I’m satisfied of your identity.

Credibility

[7] There is a presumption that sworn testimony is true unless there are valid reasons to doubt their truthfulness and, in your case, I find there was no serious reasons to doubt the truthfulness of your testimony. Your testimony that was direct and spontaneous. You didn’t exaggerate or tailor your evidence. There were no material inconsistencies or contradictions. You testified about coming to realize your sexual orientation and about how it felt being with a girl versus being with a boy. You credibly talked about your first same-sex relationship in Morocco when you were still in high school and how XXXX went on to study in France. You also testified about a young woman named XXXX (ph) that you dated for about a year and a half in Canada and how your relationship ended, and she returned to Malaysia. You are no longer in contact with either of these women and so I accept that you are not able to get a declaration from them or have them testify on your behalf. You testified about a dating app for women that you used and how you met XXXX (ph) who you casually dated for a while in 2020 but that due to the pandemic, that ended, and you found it difficult to socialize or date since.

[8] You provided corroborating evidence to support your testimony in the form of a photograph of yourself at a pride event in Vancouver with some friends of yours. You also provided a letter from XXXX XXXX who has been your friend since you arrived in Canada in 2015. In his letter, he attests to you taking a while to tell him about your sexual orientation despite his telling you almost immediately about his being gay. He also attests to you attending a pride event with him and to his socializing with you and XXXX. He also explained how COVID has affected your ability to socialize and date in Canada. I accept that you’re a lesbian and that you have a subjective fear of persecution in Morocco due to your sexual orientation. In addition to which I accept that you found it difficult to live in that society as a result of your agnostic beliefs and being a woman there. Your claim has a nexus to a Convention ground by reason of your membership in a particular social group due to your sexual orientation therefore, I have assessed the claim under section 96 of the Act.

[9] The objective evidence in the National Documentation Package as well as the reports and articles that you provided at Exhibit 3, corroborate your fear of persecution on the basis of your sexual orientation. Sexual relations between people of the same sex are illegal in Morocco. There are no laws to protect LGBT persons against discrimination or hate crimes nor are they protected against being terminated from their employment on account of their sexuality. LGBT individuals also risk physical, societal and institutional violence and I’m citing NDP Item 6.3. More recently, members of the LGBT community have also faced internet-based abuse through online attacks against individuals who are presumed to be gay or lesbian who have been outed by people trolling same-sex dating sites which has led to their being ostracized by their family and community, expelled from housing, by relatives or landlords and dismissed from their employment and there, I refer to NDP Item 6.5. A research report by the IRB in 2013 cites one (1) source as saying that convictions for homosexuality are rare and that the criminal code provisions are infrequently enforced, and that homosexuality is tolerated in Morocco. That’s NDP Item 6.1. However, the same report cites an NGO which estimates that since independence in 1956, more than five (5) thousand individuals have been prosecuted for violating the criminal code provisions around same-sex relations. It also refers to lesbians being at risk of imprisonment, discrimination and violence in addition to being shunned by families or forced into heterosexual marriage.

[10] The US State Department report notes that 122 individuals were prosecuted for same-sex sexual activity in 2019. That’s NDP Item 2.1 and there is also a 2019 report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association found at NDP Item 6.2 which documents individuals being arrested and imprisoned for being gay quite recently. The article you disclosed at Exhibit 4 page 11 also lists numerous incidents of violence and arrest of individuals for being gay or lesbian. I also note that you provided a 2020 article by a lesbian woman from Morocco who stated much as you did that “my misogynist and oppressive Muslim society taught me one (1) thing, keep your sexuality and non-conformity to yourself, do not risk your safety and do not bring shame to your family”. And that was at Exhibit 4, page 9. I’m satisfied on the evidence before me that you would face a serious possibility of persecution in Morocco on account of your sexual orientation.

State Protection

[11] A state is presumed to be capable of protecting its citizens and to rebut this presumption, a claimant must establish on a balance of probabilities with clear and convincing evidence that the state’s protection is inadequate. In this case, it is the state that is the agent of persecution and you cannot be expected to seek the protection of a state where that state permits and even enables the persecution of LGBT individuals. I find that there’s clear and convincing evidence that the state is unwilling to protect you.

[12] And finally, turning to internal flight alternative. For an internal flight alternative or IFA to be viable in a section 96 analysis, there must be no serious possibility of a claimant being persecuted there. Further, the conditions in the IFA must be such that it would not be unreasonable in the circumstances for a claimant to seek refuge there. The IFA is not viable of either of these two (2) conditions are not met. Based on the evidence before me, LGBT, anti-LGBT laws and attitudes exists across the country. It is well established that being compelled to conceal one’s sexual orientation constitutes a severe interference with your fundamental human rights and that a claimant cannot be compelled to do so in order to avoid the serious possibility of persecution. As such, I find that you would be unable to live safely elsewhere in Morocco and therefore there is no viable internal flight alternative.

[13] Having considered all of the evidence, I find that there is a serious possibility of persecution if you return to Morocco and so I accept your claim under section 96 of the Act.

———- REASONS CONCLUDED ———-

All Countries Barbados

2021 RLLR 70

Citation: 2021 RLLR 70
Tribunal: Refugee Protection Division
Date of Decision: February 1, 2021
Panel: Isis Van Loon
Counsel for the Claimant(s): Subodh Singh S Bharati
Country: Barbados
RPD Number: VC0-03617
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1] MEMBER: These are the reasons for the decision in the claim of XXXX XXXX XXXX, who claims to be a citizen of Barbados and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] In assessing this case, I’ve considered the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression to ensure that appropriate accommodations were made in questioning and in the overall hearing process and in substantively assessing this claim.

[3] I considered as well XXXX your age, your level of education, and your life experience. I note that you have a high school education, you left Barbados at age 17 and you’ve lived for almost a year in a shelter before being able to find a stable residence.

Allegations

[4] Your allegations are set out in your Basis of Claim form and in your testimony. The following is a very brief summary. You fear persecution in Barbados as a lesbian who presents in a masculine manner.

Determination

[5] I find that you are a Convention refugee as you’ve established a well-founded fear of persecution based on a Convention ground.

Identity

[6] I find that your identity as a national of Barbados is established by your testimony and the supporting documentation on file which includes a copy of your birth certificate and a Barbados national identity card in exhibit 4. This identity card is a photo ID card. As well you have provided a number of Facebook posts that date back to 2017 and 2018 in the name of XXXX XXXX which show photos of yourself. I find on a balance of probabilities that your identity is established.

Credibility

[7] The presumption before me is that your testimony is true. However this can be rebutted in appropriate circumstances if there are inconsistencies, contradictions, omissions or undetailed testimony. You provided documents to support your claim in Exhibit 4. We reviewed numerous photos of you with two different former girlfriends. You were able to describe in detail what the occasion was, where the photos were taken, and who was in the photos. You have the Facebook profile pictures dated and I note that those use the pronoun his as in XXXX XXXX updated his profile picture going back to 2017. As you’ve described, you are seen in these photographs with what would traditionally be considered male clothing as well as more traditionally male hairstyle as you have alleged. I found you overall that you were straightforward and forthcoming, you were able to provide details when I asked you about different things that you had told me about. I didn’t see any relevant inconsistencies in your testimony or contradictions with the other evidence before me. I found you overall to be credible and therefore I believe what you’ve alleged in support of your claim.

[8] Your narrative and testimony corresponds to the ample objective evidence about conditions in Barbados pertaining to members of the LGBTQ community and accordingly I really have no reason to doubt the central elements underpinning your claim for protection. So I accept that you are lesbian who presents in a traditional male manner and wears traditional male clothing and that you’ve experienced bullying, harassment, and threats of violence as a result of this.

[9] I find the persecution you face has a Nexus to one of the five Convention grounds that of your membership in a particular social group as a member of the LGBTQ community as a lesbian who presents as male and therefore I’ve assessed your claim under Section 96.

Well-Founded Fear

[10] In order to be considered a Convention refugee, you must demonstrate a well-founded fear of persecution, including both a subjective and an objective basis for that fear. Based on your testimony, your supporting documents and the country condition documents, I find that you have a well-founded fear of persecution for the following reasons.

[11] You came out to your parents at 17 years of age with the support of a friend who is also LGBTQ. Your family with the exception of one brother became abusive. You experienced homophobia on a daily basis, in the media, and both in public and at home where you were harassed, bullied, and threatened with violence. You were warned by police that if you didn’t start to dress like a girl you would be sent to a reformatory. You witnessed an openly gay man that you knew being assaulted by a crowd because of his sexuality. You with your best friend who was also LGBTQ began to look for alternatives and you talked to a bisexual friend who’d moved to Canada. The two of you were able to arrange a vacation in Canada with the help of your friend’s mother. You had no intention of returning to Barbados and instead planned to claim asylum in Canada. The friend who came with you returned to Barbados where he later became suicidal and addicted to drugs. You included a newspaper article about this friend, with the headline ‘Mom fears son will kill himself’ which discusses his addiction after he pleaded guilty to possession of cannabis.

[12] You stated that you have experienced bullying and harassment for much of your life due to the way that you present yourself. So I’ve accepted that you are a lesbian who presents as male. I note that you are young, you were a minor when you left Barbados, you’ve had challenges in establishing yourself in Canada and you spoke of your passport being lost or stolen. It took you some time to find resources needed to initiate your refugee claim which you did on June 27^th of 2019. And as I’ve said previously, given the country condition documents as well as your credible testimony I accept that you subjectively fear persecution in Barbados.

[13] You described for me what it was like for you growing up in Barbados and what would happen to you if you return to your home country. You said life would be depressing whereas in Canada you’re able to freely be yourself, you can get a job and you can focus more on being you. That you didn’t have to worry about what people were thinking about you. You said in Barbados that there are a lot of negative things that make you a dark person, is that you feel like you don’t wanna be yourself anymore because people hate you and they come at you.

[14] I asked you about how you identified yourself and you said that you identified as a guy, but it was fine to refer to you as she or he because it doesn’t matter when you know somebody is not coming at you in a disrespectful way. However, for people who are being disrespectful this is a problem for you. And I asked why you identified as a lesbian, you said simply because I like girls, that is how I feel.

[15] Your allegations of the treatment that LGBTQ people in Barbados receive is consistent with country documents. The country documents in the NDP indicate that same-sex activity is against the law although the law is rarely enforced. Further the documentary evidence points to strong societal discrimination against sexual minorities, including persons in the LGBTQ+ community who are sometimes victims of violence.

[16] The United States country report on human rights practices for Barbados in 2019 at Item 2.1 of the NDP for Barbados indicates that, there are significant human rights issues in Barbados including criminalization of consensual same-sex sexual activity. Civil society groups have reported that LGBTI persons faced discrimination in employment, housing, access to education and health care. The activist stated that while many individuals were open about their sexual orientation or gender identity, police disapproval and societal discrimination made LGBTI persons more vulnerable to threats, crime, and destruction of property. LGBTI women were particularly vulnerable to discrimination and unequal protection under the law. In one case a school prevented a transgender student from dressing as a woman. And I note that here you yourself told me that people tried to prevent you from dressing as a man.

[17] An IRB Response to Information Request at NDP 6.1 reported homosexual acts are illegal. There’s a maximum sentence of life imprisonment and it’s illegal for both male and female same sex couples according to a country reports quoted in this report; discrimination against LGBT individuals was one of the most serious human rights problems in Barbados. Persons in the LGBTQ community in Barbados face stigma and discrimination often manifested in forms of property damage, ostracism, verbal abuse from strangers and family alike, unjustified denial of employment, denial of housing, rejection and abandonment by family and friends and society at large. Many LGBT couples are forced to hide their relationship to avoid mistreatment. There were reported incidents arson, rape of both males and females, attempted suicide, homelessness, verbal abuse, depression and assault. I’m satisfied that you’ve established that the harm you experienced and fears if you were to return to Barbados amounts to a serious harm that is a denial of a core human right and that you face a serious possibility of experiencing that harm if you were to return to Barbados given your profile as a lesbian who presents as male.

State Protection

[18] I find the presumption of state protection is rebutted with clear and convincing evidence as follows. At NDP 6.1 police in Barbados have been denounced as discriminatory and their treatment of victims who are LGBT and most members of the LGBT community do not report matters to the police out of fear of negative repercussions or facing ridicule. LGBT individuals have faced disapprobation by police officers and some police are well trained, however, others can be very dismissive of gay men and trans women and justice is very rarely served in these case and many charges are dropped due to many years of waiting or of missing reports. Based on the objective evidence I find that adequate state protection would not reasonably be forthcoming to you in Barbados.

Internal Flight Alternative

[19] Now an internal flight alternative exists whether it would be some place safe that you could relocate in your home country. However, Barbados is a very small island, the States in control of the island. I’m satisfied that there’s no viable internal flight alternative for you in Barbados given the law criminalizing consensual same-sex activity exists throughout the country. And as well that homophobia permeates the society.

[20] Based on all the evidence before me, I find you’d face a serious possibility of persecution if you were to return to Barbados and I therefore conclude that you are a Convention refugee; accordingly I am accepting your claim.

———- HEARING CONCLUDED ———-

All Countries Nigeria

2021 RLLR 69

Citation: 2021 RLLR 69
Tribunal: Refugee Protection Division
Date of Decision: April 30, 2021
Panel: Isis Marianne van Loon
Counsel for the Claimant(s): Jerome Fanmi Olorunpomi
Country: Nigeria
RPD Number: VC0-03525
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1] MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, a citizen of Nigeria claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[2] In assessing this case, I have considered and applied the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[3] Your allegations are set out in your Basis of Claim form and by your testimony and the following is a very brief summary.

[4] You are a bisexual man, and you fear persecution in Nigeria on this basis.

DETERMINATION

[5] I find that you are a Convention refugee, as you’ve established a well-founded fear of persecution based on a Convention ground.

ANALYSIS

Identity

[6] I find your identity as a national of Nigeria is established by your testimony and the supporting documentation on file, including a certified true copy of your passport in Exhibit 1.

Credibility

[7] The presumption before me is that your testimony is true. However, this could be rebutted in appropriate circumstances, such as inconsistencies, contradictions, omissions or undetailed testimony. The presumption does not apply to inferences or speculation for which there is no evidentiary basis.

[8] You provided a number of credible documents to support your claim. There are, I believe it’s in Exhibit 10, messages between friends in Nigeria showing your attempts to locate your former partner, XXXX (ph), Exhibit 10 has a statutory declaration from your wife, stating that you’re currently separated and confirming that were involved in a same-sex incident in July of 2016 and that you denied it at the time. She said that you had relocated to Lagos, as a result of the harassment, due to rumors in the community and in March 2017, you confessed to her. She said that men claiming to be police detectives have come to ask questions about you, to her residence in Nigeria. She said that after living in Canada for two years now, she’s gone to counselling and she better understands the complexity of gender identity and sexual orientation. She states that you are a good father and that she has vowed to ensure that no matter what her own feelings are, your children would be able to continue to have a relationship with you. And in fact, your wife and children are accepted as refugees on March 16^th of last year. She has included her photo ID, as well as the cover page of her RPD decision. There’s an affidavit from XXXX XXXX confirming that you’ve known each other for over two years and have been in a relationship. XXXX speaks of your strong bond and states that you’ve been very supportive in his journey to heal, after the trauma he endured in Nigeria, due to his bisexuality. He described his joy when you were able to find a place in the same building, so that you could be close together. There are number of documents and photos showing your involvement first in Montreal’s LGBTQ Centre and then the 519 in Toronto in Exhibits 5, 6, 9, 10 and 12. These include photos of 2019 Pride, where you’re pictured with your current beau, XXXX. There’s a XXXX XXXX showing you’ve been diagnosed with XXXX and it’s in the severe range with disassociated features and that this is consistent with you having experienced threats, harassment and violence, that’s Exhibit 9. Exhibit 11 has a letter from your neighbour in Lagos who confirms that two detectives have come in early 2019 and again, of August 2020, wanting to contact you about an ongoing investigation. There’s a second letter from a friend that you lived with in Montreal confirming that you attended many programs and events at the Montreal LGBTQ+ Community Centre. Both of these letters are accompanied by photo ID.

[9] So, I found these documents relevant and they serve to corroborate your allegations that you are a bisexual man currently involved with another man here in Canada.

[10] I found you to be straightforward and forthcoming. There were no inconsistencies between your testimony or contradictions with other evidence before me. You didn’t appear to embellish your description of events and actions, even when it might have appeared favorable to your claim to do so. And your narrative corresponds to the ample objective country evidence about conditions in Nigeria, with respect to members of the LGBT community.

[11] Accordingly, I have no reason to doubt the central element underpinning your claim for protection. I’ve accepted that you are LGBT, as a bisexual man and that you have, yourself, experienced threats, harassment and briefly detention.

[12] Given the foregoing, I accept that you subjectively fear persecution on that basis in Nigeria.

Nexus

[13] I find the persecution you face has a Nexus to one of the five Convention grounds, that of membership in a particular social group, as you are a member of the LGBTI community, a bisexual man.

[14] And therefore, I’ve assessed this claim under section 96.

Well-Founded Fear

[15] In order to be considered a Convention refugee, you have to demonstrate a well-founded fear of persecution. This includes both a subjective and an objective basis for that fear and I’ve already accepted your subjected fear.

[16] Based on your testimony, supporting documents and the country condition documents, I find you have a well-founded fear of persecution for the following reasons.

[17] You said in your narrative that you first experimented with another boy at age 12 and then after that, you were deeply ashamed. You met and married your wife in 2005. You have three children who were born in 2005, 2006 and 2015. You have since separated with your wife. You met a man named XXXX XXXX in 2012 at a corporate event, you became close. In mid-July of 2016, you met at a hotel in Abuja, this time XXXX had booked the hotel and you were not in the corporate hotels you normally work with, which would have guaranteed your privacy. You were exposed by a room service worker who walked in and found you close together and called the manager. The manager believed the worker, who was alleging that you were having a gay affair and more people came, as they heard the arguments. You were afraid of mob violence, so you urged the manager to call the police. You were taken into custody and detained for several hours by police. You spoke with the DPO, the senior officer told them it was a mistake. You told them about your identity, your respected position in the community and at work and that you are a member of the Lagos police community relationship committee. You explained to me that these committees are very important to the police, as they raise money and assist them to find funds for various activities and machines that they need. You were able to talk the officers into releasing you, after you paid money, fairly extensive sum, worth about 300 Canadian, under the table. You later returned to the station to negotiate avoiding a court case and after that, the police occasionally returned to collect money and the guys are giving you a briefing about the case. However, after this event, rumors in the community started and led to harassment of you and your family. You don’t know exactly how these rumors came about but you thought that a police officer from the station likely told someone in the close-knit community. You’ve tried but were unable to locate XXXX since that time. You went to the U.S.A. in XXXX of 2016 to cool off you said, the pressure and the emotion had been too much, and you needed to go somewhere to think things over and to try to get your life together. You didn’t want to go back to Nigeria, but you had your children, and you hadn’t told your wife and you felt you had to go back home. Your wife and your children began to experience harassment in the community, due to the rumors about your sexuality. When your wife asked you, you initially denied that you were bisexual. You took your family to the U.S.A. in XXXX of 2017 to get away. You said that you felt like you had to tell the truth to your wife, and you put her through a lot, and you couldn’t keep denying it. So, while in the U.S.A., you told her that you did have an affair with another man. You said initially she was surprised. She’d known you for so many years, she didn’t think you would be involved in this way and you’d been denying it all along and then she was disappointed, and she felt betrayed and her heart was broken. You told her that you wanted to try and work on it but then somebody from Nigeria called and told her she’d been expelled from the church because of this and then she got mad, and she said she’d had enough. She took the children and returned to Nigeria. You told her that you couldn’t go back with them. You said you hadn’t been sleeping, you were afraid and whenever somebody phoned, you thought it was the police and you just felt that you couldn’t go back. You said that she should stay in the U.S. with you, but she said no. You’ve been separated since then and she’s told you that she doesn’t want to have anything to do with a romantic relationship with you anymore. Your passport expired in December 2018 and you’d overstayed the six months allowed for your U.S. visa. Your relatives in Nigeria told friends and relatives in the U.S.A. and they were threatening to get you deported. You contacted an American lawyer, and you were told that you would have to pay 7,000 dollars U.S., which you couldn’t afford in order to get status in the U.S. Fearing deportation under the Trump-era policies, you crossed into Canada on XXXX XXXX, 2018 to claim asylum. Since coming to Canada, you became actively involved first in the Montreal LGBT Centre and after moving to Toronto, the 519 LGBT Centre and in Toronto, you met XXXX in September of 2018. Initially, you and XXXX were just friends but this developed into a relationship over time and the two of you are still together as a couple, living in the same house. As I mentioned, XXXX provided an affidavit in which he corroborated the history of your relationship. You told me that XXXX works nights and you offered to wake him up if his testimony was helpful.

[18] As I found you to be credible and as XXXX provided a credible affidavit, I did not find it necessary to wake him but appreciated that we could do so, if we needed to.

[19] Now, in order to assess an objective basis of a well-founded fear, a claimant can rely on the treatment of similarly situated persons as well.

[20] And I would suggest that XXXX experience in Nigeria would fit this category. He was exposed and assaulted, as you testified and ended up in the hospital. In his affidavit, XXXX says that you’ve been very supportive in his journey to heal, after the trauma that he experienced in Nigeria, with regards to his bisexuality. You told me that for those who are there in Nigeria, who are of the LGBT community, it is really, really bad. You said people don’t want to have anything to do with you. They say bad things about you. Family members won’t have anything to do with you. You’re outcast. Everybody hates you. And then you start to feel really badly about yourself. For any small thing, you could be mobbed or attacked and that you’ve even seen news reports of people who were killed or lynched, just on suspicion of being LGBT.

[21] The objective country documentation is consistent with your testimony of fearing persecution in Nigeria. Homosexuality and bisexuality are against the law. Engaging in same-sex sexual relations is illegal and can result in prison terms of up to 14 years. Furthermore, the chances of getting a fair trial, once arrested or prosecuted, are considered non-existent, this is according to NDP 6.2 and 6.7. Item 6.2 states, Nigeria is a homophobic country. There was a 2017 report on Human Rights Violations based on Sexual Orientation and Gender Identity and Expression in Nigeria, documenting a total of 247 victims and 210 violations. In January, the organization issued another report showing the results of a survey on social perception in LGBTI people in the country. It revealed that the vast majority of Nigerians, 91% do not believe that people are born homosexual, 83% would not be willing to accept a family member who was homosexual, 90% support the Same-Sex Marriage Prohibition Act, which is what I referred to earlier, criminalizing it, and think that Nigeria would be a better country without homosexuals and 56% say homosexuals should be denied access to public services.

[22] Another survey at NDP 6.5 found that 55% of the LGBT responded and surveyed, had been physically or sexually attacked or threatened with violence, either at home or in the workplace in the past 10 years. The harsh laws enforced in Nigeria and its effects on the LGBT people have been widely documented. In fact, Nigeria has been cited as one of the most homophobic countries in the world. Not only due to the severity of comprehensiveness of its legislation that criminalizes same-sex relations, but also for the discriminatory and violent treatment given to LGBTI people in the form of arbitrary arrest, blackmail, physical and psychological abuse by the police and kidnapping, extortion, harassment, sexual attacks and subjected to the conversion therapies, pressure to marry and involuntary outing by family and society members.

[23] Accordingly, I conclude that your fear of persecution in Nigeria is indeed well-founded.

State Protection and Internal Flight Alternative

[24] In this case, one of the agents of persecution, a major one, is the State. The persecution would face, if returned to Nigeria, is at the hands of the authorities.

[25] Accordingly, I find there is no state protection available to you and the presumption of state presumption has been rebutted. I note that you were actually the one who asked for the police to be called, as you feared mob violence but from that point forward, there were rumors in the community, that most likely came from the police and you were mistreated, and they kept returning. So, there was always that threat hanging over you, if you didn’t continue to pay those bribes.

[26] Now, the State of Nigeria is an agent of harm and has control over all of its territories. Furthermore, as the documents have shown, the general population is another significant agent of harm and homophobic attitudes and actions are prevalent throughout Nigeria.

[27] Therefore, I find there is no viable internal flight alternative, where you could safely relocate in Nigeria.

CONCLUSION

[28] You have established a well-founded fear, there is no adequate state protection and no viable internal flight alternative, therefore, I conclude that you face a serious possibility of persecution, if returned to Nigeria, on the basis of your membership in a particular social group, as an LGBTI individual.

[29] Based on the totality of the evidence, I conclude you are a Convention refugee.

[30] Accordingly, I’m accepting your claim.

———- REASONS CONCLUDED ———-

All Countries Cameroon

2021 RLLR 68

Citation: 2021 RLLR 68
Tribunal: Refugee Protection Division
Date of Decision: June 9, 2021
Panel: Kerry Cundal
Counsel for the Claimant(s): Albert Chiu
Country: Cameroon
RPD Number: VB9-10003
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX as a citizen of Cameroon who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”)¹.

ALLEGATIONS

[2] The claimant fears returning to Cameroon because he fears persecution due to his sexual orientation. The claimant left Cameroon in XXXX 2011 and entered Canada with a study visa. The claimant provided further details in his Basis of Claim² (BOC) form, some of which are highlighted in this decision. The panel has reviewed and applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression in this decision.³ In particular, the panel is mindful of the socio-cultural context of a sexual minority who has lived in a country where same-sex activities are criminalized, and societal violence continues today against sexual minorities in Cameroon.

DETERMINATION

[3] The panel finds that the claimant has established that he is a Convention refugee pursuant to section 96 of the Act for the reasons that follow.

ANALYSIS

Identity

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

Credibility, Well-Founded Fear of Persecution and Risk of Harm

[5] The claimant testified in a straightforward manner consistent with his supporting documents. Accordingly, the panel finds that he is a credible witness. The claimant submitted corroborative documents including identity documents, education documents, supporting letters and photos with same-sex partners and photos of injuries he suffered due to a homophobic attack he suffered in Cameroon before he left for Canada.⁵ The claimant provided detailed testimony regarding his first same-sex intimate experience with XXXX in junior high school. He also provided detailed and consistent testimony regarding the attack against him and XXXX and the subsequent detention for two days by the police. He testified that he fears that he will be put in jail, suffer further mistreatment, or be killed if he returns to Cameroon. He testified that he had to be very careful in Cameroon about hiding his sexual orientation as even family members of sexual minorities may face abuse. He testified that he had a student visa to come to Canada and then he subsequently had a post-secondary work permit after he graduated from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX He testified that he has never visited Cameroon since he left in 2011 and over the years, he has become more open about his sexual orientation in Canada. He provided detailed testimony regarding same-sex relationships he has had in Canada. He testified that he works in XXXX XXXX XXXX and travels to Fort McMurray, Alberta for work. He testified that he still keeps a low profile about his sexual orientation at work. He testified that he has family in Quebec, but he chose to come to Edmonton because he is still uncomfortable around people from his Cameroonian community in Canada and their mentality against sexual minorities.

[6] The SOGIE guidelines at section 8.5.11.1 indicate: An individual with diverse SOGIE may reasonably delay making a claim for refugee protection based on SOGIE out of a fear of reprisal for themselves or family members. A reasonable delay may also arise out of an individual’s reluctance to reveal their SOGIE to a spouse or other family member, or in their realizing or accepting their SOGIE.⁶ When the panel asked the claimant about his delay in making in a refugee claim in Canada, he explained that he was stressed about his situation in Cameroon given the attack and detention he suffered before he left Cameroon. He testified that he had a study visa and then a post-secondary work permit and was able to stay in status in Canada. He testified that through friends who are also sexual minorities he learned more about the refugee process and he was also able to gain support through the Mennonite Newcomers Centre and the Edmonton Pride organization. He testified that while he was studying at the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX he saw more and more examples of support, including events for sexual minorities on campus.

[7] When the claimant was asked how he identifies his sexual orientation, he testified that he is bisexual, and he prefers sex with men. The SOGIE guidelines indicates at section 2.6: There is no standard terminology that adequately captures the diversity within and between the evolving concepts of sexual orientation and gender identity and expression across cultures and societies⁷. Further, section 3.1 states: Depending on factors such as race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education, individuals with diverse SOGIE recognize and act on their SOGIE differently. An individual’s self-awareness and self-acceptance of their SOGIE may present as a gradual or non-linear process. There is no standard set of criteria that can be relied upon to establish an individual’s identification as an individual with diverse SOGIE.⁸

[8] The objective evidence supports the claimant’s fear of returning to Cameroon and indicates that section 347 of the penal code in Cameroon criminalizes same-sex activities and provides up to five years in prison for sexual activity with a same-sex partner.⁹ Further, the objective evidence indicates that authorities arbitrarily arrest and abuse sexual minorities in Cameroon.¹⁰ The evidence indicates that homophobia is pervasive in Cameroon and there are daily attacks on sexual minorities including harassment, assaults, extortion and murders.¹¹

[9] Based on the totality of the evidence, the panel finds that the claimant has established a nexus to a Convention ground, namely membership in a particular social group as a sexual minority. Further, the panel finds that the claimant faces a serious possibility of persecution if he returns to Cameroon. Given that the claimant faces a forward-looking serious possibility of persecution in Cameroon due his sexual orientation and the application of the SOGIE guidelines, the panel finds that the claimant’s delay in making a refugee claim does not undermine his subjective fear or his credibility.

State Protection and Internal Flight Alternative (IFA)

[10] Given that the state is an agent of harm in this case and the criminalization of same-sex activities, the panel finds that there is no state protection for the claimant in Cameroon in his particular circumstances as a bisexual man who prefers men to women. Furthermore, given that the state is the agent of harm and the criminalization of same-sex activities applies throughout the country, the panel finds that it is neither safe nor objectively reasonable in all of the circumstances, including the claimant’s particular circumstances for him to relocate anywhere in Cameroon. Accordingly, the panel finds that there is no viable internal flight alternative.

CONCLUSION

[11] For the forgoing reasons the panel finds that the claimant is a Convention refugee pursuant to section 96 of the Act and the Board therefore accepts his claim.

(signed) Kerry Cundal

June 9, 2021

_______________________________________

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

² Exhibit 2.

³ Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), Ottawa, Canada, May 1, 2017.

⁴ Exhibit 1.

⁵ Exhibits 4 to 10.

⁶Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), Ottawa, Canada, May 1, 2017.

⁷Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), Ottawa, Canada, May 1, 2017.

⁸Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), Ottawa, Canada, May 1, 2017.

⁹Exhibit 3, National Documentation Package, (NDP), Cameroon, May 31, 2021, Item 6.1, Response to Information Request, CMR200309.FE.

¹⁰Exhibit 3, National Documentation Package, (NDP), Cameroon, May 31, 2021, Item 6.1, Response to Information Request, CMR200309.FE.

¹¹Exhibit 3, National Documentation Package, (NDP), Cameroon, May 31, 2021, Item 6.1, Response to Information Request, CMR200309.FE.