Categories
All Countries Zambia

2020 RLLR 142

Citation: 2020 RLLR 142
Tribunal: Refugee Protection Division
Date of Decision: November 13, 2020
Panel: A. Marcotte
Counsel for the Claimant(s): Odaro Omonuwa
Country: Zambia
RPD Number: VB9-06329
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000163-000168

REASONS FOR DECISION

INTRODUCTION

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

[2]       In rendering my reasons, I have considered and applied the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

[3]       In rendering my reasons, I have considered the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[4]       You have outlined your reasons for seeking Canada’s protection in your Basis of Claim (BOC) form[1] as well as through your testimony. You allege that you cannot return safety to Zambia because you fear persecution by the state due to your sexual orientation as a lesbian.

DETERMINATION

[5]       I find that you are a Convention refugee as you have established a serious possibility of persecution on account of your membership in a particular social group based on your sexual orientation for the following reasons.

ANALYSIS

Identity

[6]       I find that your identity as a national of Zambia is established by your testimony and the documents provided: National identity card.[2]

Nexus

[7]       You allege that you will be persecuted in Zambia due to your sexual identity as a lesbian. I find that there is a nexus between your allegation and the Convention ground of membership in a particular social group based on your sexual orientation. As such, I have considered their claims under both sections 96 and 97(1) of the Act.

Credibility

[8]       I find you to be a credible witness and therefore believe what you alleged in support of your claim. You testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me which have not been satisfactorily explained.

[9]       You submitted corroborative documents regarding your sexual orientation through affidavits from acquaintances, family, your church and the [XXX][3]. The country condition evidence described below also supports your allegations in Zambia. Based on the presumption of truthfulness, your testimony, and the corroborative evidence, I find, on a balance of probabilities, that your allegations are credible.

Risk of harm

[10]     To establish your status as a Convention refugee or as a person in need of protection, you had to show that there was a serious possibility that you would be persecuted, or that you would be subjected on a balance of probabilities to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if removed to Zambia.

[11]     You testified that you grew up in a very strict and religious household, and that you were taught that a women can only love a man. You spoke of how you witnessed your brother informing your parents that he was gay and the subsequent fall out he had with your parents who accused him of bringing shame and disgrace to the family. You testified that you have not heard from your brother since 2014 and that no one in your family knows where he is.

[12]     You spoke of your own questioning and doubts regarding your sexual identity growing up and how you started exploring your feelings in more depth when you arrived in Canada in 2015 to study. You testified that you no longer wanted to live a lie and be in denial of who you were and informed your two sisters who live in Canada, of your sexual orientation, even knowing it would be a difficult conversation.

[13]     According to the Zambia Penal Code Act, Section 158: Indecent practices between persons of the same sex of the Penal Code Act indicates:

[XXX] Any female who, whether in public or private, commits any act of gross indecency with a female […] person, or procures a female […] person to commit any act of gross indecency with her, or attempts to procure the commission of [XXX] any such act by any female person with himself or with another female […] person, whether in public or private, commits a felony and is liable, upon conviction, to imprisonment for a term of not less than seven years and not [XXX] exceeding fourteen years.[4]

[14]     A report by International Lesbian, Gay, Bisexual, Trans and Intersex Association, 2015 the President Edgar Lungu declared: “We will not support homosexuality. I will not compromise human nature because of money. God made man and woman.”[5]

[15]     The objective evidence highlights the challenges in Zambia in terms of advancing and protecting the rights of the LGBTQ community and the various incidences of state-sponsored homophobia and transphobia which continues to plagues the legal and political atmosphere of Zambia.[6] Based your identification as a lesbian and the state’s laws and treatment of individuals who identity as lesbian, I find that there is a serious possibility of persecution if you return to Zambia. I find that you have a well-founded fear of persecution based on your membership in a particular group, based on your sexual orientation.

State protection

[16]     I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances. Given the current legislation and that the government is an agent of persecution, it appears objectively unreasonable for you to seek the protection of the state. Consequently, the presumption of state protection has been rebutted.

Internal flight alternative

[17]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution or cruel and unusual treatment or punishment throughout Zambia, since the laws apply across the country and that you cannot be expected to hide from the state.

CONCLUSION

[18]     Based on the analysis above, I conclude that you are a Convention refugee. Accordingly, I accept your claim.


[1] Exhibit 2.

[2] Exhibit 1.

[3] Exhibit 4.

[4] Exhibit 3, National Documentation Package (NDP), Zambia, March 31, 2020, Item 6.1.

[5] Exhibit 3, NDP Item 6.1.

[6] Exhibit 3, NDP Item 6.2.

Categories
Albania All Countries

2020 RLLR 130

Citation: 2020 RLLR 130
Tribunal: Refugee Protection Division
Date of Decision: February 5 2020
Panel: N. Stocks
Counsel for the Claimant(s): Jeffrey L. Goldman
Country: Albania
RPD Number: TB9-05661
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000088-000092

REASONS FOR DECISION

[1]       [XXX] (claimant) is a citizen of Albania. He claims refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2]       The particulars of his claim are detailed in his Basis of Claim Form (BOC)[1] and were explained further in his oral testimony. In summary, the claimant alleged he is a bisexual male. He had a boyfriend in his hometown. The relationship became known after the sister of his boyfriend, [XXX] found text messages on his phone. The claimant was assaulted with a bat by [XXX] uncles. The claimant was taken to the hospital where he was treated by hospital staff. When they discovered why he was attacked, the doctor and nurse stated this is what happens when people try to pervert/corrupt men. The hospital staff refused to treat him.

[3]       The claimant also alleged that after his father died, his uncle took care of the family. His uncle, [XXX] is a policeman. When he learned that the claimant was in a same sex relationship, he was outraged. He blamed the claimant’s mother for giving him “the gay disease”. [XXX] beat the claimant’s mother and brother. Later, [XXX] with other police officers found the claimant who had been in hiding; he was beaten by [XXX] and the other officers.

[4]       The claimant fears returning to Albania. He asserts that he cannot seek protection in Albania. The people of Albania are homophobia. The police will not protect him. His uncle is a member of the police and has influence. He cannot live safely anywhere in Albania.

[5]       The panel finds that the claimant is a Convention refugee for the reasons that follow.

ANALYSIS

Identity

[6]       The panel finds that the claimant has established his identity as a national of Albania, based on a certified copy of his Albanian passport on file.[2]

Credibility

[7]       When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their veracity. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities. Having considered the claimant’s testimony, the panel found the claimant testified in a spontaneous and forthright manner. There were no material inconsistencies or omissions.

[8]       The claimant provided satisfactory evidence to establish on a balance of probabilities that he is at risk in Albania. This includes but is not limited to the profile of the claimant’s uncle who is a police officer. While same sex relationships are not illegal in Albania, there are strong homophobic sentiments. This in itself would be insufficient to grant protection; however, in the case of the claimant, taking into account his personal circumstances, the panel finds that there is more than a mere possibility of persecution owing to his sexual orientation.

[9]       The Constitution of Albania provides protection from discrimination in general, but does not specifically refer to the grounds of sexual orientation or gender identity. Hate crimes and hate speech on the grounds of sexual orientation or gender identity are prohibited in the Penal Code; however, the legislation only created a contradictory situation in Albania, combining an outward appearance of legal protection with hostility and discrimination still present within key institutions.[3]

[10]     A state is presumed to be capable of protecting its citizens, except in cases where the state is in complete breakdown. Albania is a functioning democracy.[4] The panel has assessed state protection in Albania in the claimant’s particular circumstances. As indicated in item 2.1 of the National Documentation Package (NDP) for Albania, “[p]olice did not always enforce the law equitably. Personal associations, political or criminal connections, poor infrastructure, lack of equipment, or inadequate supervision often influenced law enforcement. Poor leadership and a lack of diversity in the workforce contributed to continued corruption and unprofessional behavior. Authorities continued to make efforts to address these problems by renovating police facilities, upgrading vehicles, and publicly highlighting anticorruption measures.”[5]

[11]     As previously noted, the claimant’s uncle, a police officer and the head of the family is included as an agent of persecution. The panel notes that his uncle is well-connected amongst his peers. The panel finds that the claimant has rebutted presumption of state protection.

[12]     The panel notes that the documentary evidence consistently indicates that police did not always enforce the laws equitably and that personal associations, political or criminal connections, poor infrastructure, lack of equipment or inadequate supervision often influenced law enforcement.[6] [emphasis added]

[13]     In light of the panel’s findings regarding state protection for the claimant in his particular circumstances, and the claimant’s testimony, the panel finds, in these particular circumstances, there is no viable internal flight alternative.

CONCLUSION

[14]     The panel finds that the claimant has established a serious possibility of persecution owing to his sexual orientation.

[15]     The panel accepts this claim.


[1] Exhibit 2

[2] Exhibit 1

[3] Exhibit 3, NDP for Albania (30 September 2019), item 6.3.

[4] Exhibit 3, National Documentation Package (NDP) for Albania — September 30, 2019 Version.

[5] Exhibit 3, item 2.1.

[6] National Documentation Package, Albania, 30 September 2019, tab 6.5: Country Policy and Information Note. Albania: Sexual orientation and gender identity. Version 5.0. United Kingdom. Home Office. April 2019.

Categories
All Countries Mexico

2020 RLLR 129

Citation: 2020 RLLR 129
Tribunal: Refugee Protection Division
Date of Decision: October 30, 2020
Panel: Lesley Mason
Counsel for the Claimant(s): Pablo Andres Irribarra Valdes
Country: Mexico
RPD Number: TB9-04265
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000084-000087

DECISION

On October 30, 2020 the Refugee Protection Division (RPD) heard the claim of [XXX] and [XXX], who claim 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 with added references to the documentary evidence and relevant case law where appropriate.

[1]       MEMBER: [XXX] and [XXX], I have considered your testimonies and the other evidence in your case, and I am ready to now give you my decision orally. You will receive a written copy of this decision, but it will be edited for any spelling, syntax and grammar before it is sent out to you.

[2]       This is the decision of the claims of [XXX] and [XXX], who claim to be citizens of Mexico, and who seek refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.[1]

[3]       The allegations that you make are fully set out in each of your basis of claim forms and amendments.[2] In summary, you each fear persecution in Mexico because you are gay men. You suffered physical, verbal, sexual abuse and discrimination. You allege that there is no location in Mexico where you could relocate and live safely.

[4]       Your claims were joined as per Rule 55 of the Refugee Protection Division. Chairperson’s Guideline 9 was followed throughout this hearing.[3]

[5]       The issues in your hearing were credibility, delay in claim, and internal flight alternative.

[6]       Regarding your identities, I find on a balance of probabilities that you are who you say you are, and that you are citizens of Mexico. I base this finding on the passports you provided Canadian authorities,[4] and the voter identity cards you submitted as evidence.

[7]       With regards to your credibility, your testimonies as to the circumstances of the problems you experienced in Mexico as a result of your sexual orientation were straightforward and spontaneous. Neither of you made any apparent attempts to embellish your claims.

[8]       However, there were some obvious inconsistencies in the evidence provided by each of you between your narratives and your oral testimony this morning. I do have concerns about the omissions in your testimonies regarding dealings with the police and discrimination at work.

[9]       Nevertheless, the information each of you provided in your testimonies is consistent with information you have given in your basis of claim forms. Some of these allegations are confirmed by the multitude of original documentation that you have provided to me.

[10]     The personal documents include reference letters from friends and family, medical records, employment records, correspondence regarding human rights complaints in Mexico and in Canada, as well as photographs of various events that you have attended here in Toronto.

[11]     Your personal documentary evidence is overwhelming, and I give it significant evidentiary weight.

[12]     Regarding your delay in making claims for protection, you explained that it took a considerable time to gather useful information that finally led you to make claims for protection.

[13]     I accept this explanation for the delay, and I make no adverse credibility findings against you.

[14]     I therefore have considered the objective evidence in your case. Having considered the country condition documents, I find that the situation for you in Mexico is dangerous. Conservative attitudes prevail in Mexico. Public displays of affection are not considered socially acceptable.

[15]     I rely specifically on three documents; 6.1, 6.2 and 6.4 in the national documentary package.[5] I also will mention that the United States Department of State report for 2020 indicates, and I quote, “Discrimination based on sexual orientation and gender identity was prevalent, despite a gradual increase in public tolerance of LGBTI individuals.”

[16]     In 2016, Letra S, L-E-T-R-A and then “S,” which is an LGBTQ non-governmental organization, published information according to which 1,310 cases of killings of LGBT persons motivated by homophobia were committed in Mexico between 1995 and 2016. Over the past 10 years, there have been 71 homicides a year on average.

[17]     A report from the UN noted the alarming pattern of grotesque homicides of lesbian, gay, bisexual and transgender individuals, and the broad impunity for these crimes, sometimes with the suspected complicity of investigative authorities.

[18]     According to one report, trans women and homosexuals represent the group most affected by motivated physical assaults. There is considerable evidence about the number of people who belong to the LGBT community that have been killed over these last many years.

[19]     Mexico City, where you’ve indicated that you lived for a short period of time, is regarded by some to be the safest place in Mexico to members of the LGBTQ community. The response to information request at 6.4 indicates that violence against LBGTQ (sic) persons in Mexico City is virtually unheard of. However, civil society groups claim that police routinely subjected LGBTI persons to mistreatment while in custody, and this information can also be found in the Department of State report.

[20]     Your counsel has also provided considerable evidence with regards to the treatment of homosexuals in Mexico.

[21]     I therefore find that there is a strong objective basis for the fear you have of being persecuted in Mexico. find that you have subjective fear of persecution, violence, and death in Mexico on the basis of your sexual orientation, and the objective evidence supports that subjective fear.

[22]     I proposed Guadalajara as an internal flight alternative city in which you could potentially live openly as gay men. The response to information request I have mentioned earlier indicates that the members of the LGBT community in Guadalajara report feeling safe.

[23]     However, you have made it clear that you do not feel safe anywhere in Mexico, and this is in part due to the discrimination against sexual minorities that is pervasive throughout the country.

[24]     I note that the response to information request I’ve referred to provides information about the role of the Catholic church in exacerbating homophobia and transphobia in Mexico. It is the influence of the church that has stubbornly impeded the efforts of the government in Mexico to protect and guarantee equality and protection for the LGBTQ community. While the response lists Guadalajara from one source as being a safe place for sexual minorities, I find there is more overwhelming evidence that gay men are frequently targeted everywhere in Mexico by state and civilian actors alike.

[25]     I also note that you testified that you would be discriminated against by the medical community when dealing with your HIV status, as you’ve experienced in the past.

[26]     Relying on the documentary evidence I’ve referred to, I find that there is no viable internal flight alternative in Mexico that is both safe and reasonable for you in all circumstances. The serious possibility of persecution that you face is endemic throughout Mexico, and I therefore find that there is no place in the country that you could live openly as gay men and be safe.

[27]     I have considered your testimonies, your documentary evidence, and the country conditions, and I find that there is a serious possibility of persecution on a convention ground, if you were to return to Mexico.

[28]     I therefore find that you, [XXX] and you, [XXX], are convention refugees, and I accept your claims. I wish you well.

———- REASONS CONCLUDED ———-


[1] The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sections 96 and 97(1).

[2] Exhibits 2.1, 2.1, and 13.

[3] Chairperson’s Guideline 9: Proceedings Before the IRE Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.

[4] Exhibit 1, Package of information from the referring CBSA/IRCC.

[5] Exhibit 3, National Document Package (NDP) for Mexico – September 30, 2020 Version.

Categories
All Countries Nigeria

2020 RLLR 125

Citation: 2020 RLLR 125
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2020
Panel: S. Williams
Counsel for the Claimant(s): A. Akinyemi
Country: Nigeria
RPD Number: TB8-15998
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000048-000056

REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claim of [XXX] who claims to be a citizen of Nigeria, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

[2]       In rendering these reasons, the panel has considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution,[2] and applied the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.[3]

ALLEGATIONS

[3]       The claimant alleges that she faces persecution at the hands of Nigerian authorities and members of Nigerian society on account of her sexual orientation as a lesbian. The claimant also alleged that she faces a risk of forced female genital mutilation (FGM) at the hands of her paternal relatives.

[4]       While the claimant has identified a fear of FGM, the panel finds that the determinative issue in this claim is the claimant’s sexual orientation. Therefore, the reasons for this decision are centered on findings about the claimant’s profile as a lesbian. The panel will not render findings surrounding the claimant’s fear of FGM.

DETERMINATION

[5]       The panel finds that the claimant is a Convention refugee as she has established a serious possibility of persecution on account of her membership in a particular social group, as a lesbian woman.

ANALYSIS

Identity

[6]       The panel finds that the claimant’s identity as a national of Nigeria is established by the claimant’s oral testimony and documents filed in evidence, including the claimant’s Nigerian Birth Certificate.[4]

Credibility

[7]       The panel finds the claimant to be a credible witness and therefore accepts what the claimant has alleged in support of her claim. When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.[5] The claimant testified in a straightforward manner and, there were no relevant inconsistencies in the claimant’s testimony or contradictions between testimony and the other evidence before the panel which have not been satisfactorily explained.

[8]       The claimant testified that while she was in Nigeria she came to realise her sexual orientation, that she is a lesbian, at the age of 10 or 11 years old. She stated that she initially thought something was wrong with her because all of her friends would talk about boys, yet she would think about girls. The claimant testified about the challenges she faced in Nigeria, stating that she would often try to hide herself and stay away from people that she found attractive. The claimant testified that her parents hold strong religious values and she was aware that her sexual orientation would not be accepted in her community.

[9]       The claimant stated that she eventually confided in her mother about her sexual orientation. However, at that time, the more pressing matter that was concerning the claimant’s mother was fear of forced FGM of the claimant. The claimant stated that her paternal grandmother comes from a line of traditional worshipers who carry out female genital mutilation. The claimant alleged that her paternal relatives attempted to force her to undergo FGM, with the intention of subjecting the claimant to the FGM procedure in [XXX] 2015. The claimant alleged that her mother arranged for her to flee Nigeria on [XXX] 2015 at the age [XXX] years old in order to avoid forced FGM.

[10]     The claimant moved to the United States where she resided, without legal status, in the care of her mother’s cousin, Ms. E. The claimant alleged that while in United States, she became involved in a romantic relationship with a same sex partner in [XXX] 2015. The claimant testified that she was confronted by Ms. E on [XXX] 2018, regarding the nature of her relationship with her female friend from school, at which time the claimant admitted that she was involved in a same sex relationship with this female. The claimant alleged that Ms. E became upset about her sexual orientation and told the claimant to leave her home immediately. The claimant then fled to Canada where she had family friends. The claimant arrived in Canada on [XXX] 2018.

[11]     The claimant stated that her relatives in Nigeria have become aware of her sexual orientation and her father has disowned her. The claimant stated that members of her family and community in Nigeria have vowed to kill her for bringing shame to the family name.

Failure to Claim Asylum Does Not Undermine the Claimant’s Subjective Fear

[12]     The claimant testified that she resided in United States between the period of [XXX] 2015 to [XXX] 2018 and did not claim asylum. The claimant testified that the reason she did not claim asylum upon arrival in United States is because she did not know anything about asylum. She stated that as she became older, she realized she did not have legal status in United States however she was unaware that she could speak with a lawyer to apply for legal status. The claimant testified that she never tried to claim asylum because she did not know how to do so. The claimant testified that she also experienced fear that she may not be granted legal status in the United States. She stated that these fears stemmed from her understanding of the president of the United States administrative views on immigrants at the time.

[13]     The panel has assessed whether the claimant’s failure to claim asylum in United States immediately upon entry to United States undermines the claimant’s subjective fear. Considering the claimant’s personal circumstances, including the fact that she was [XXX] years old upon arrival in united states, traveled to united states on her own, had limited education, and was allegedly fleeing a risk of gender-based violence, the panel finds that the claimant’s explanation for not claiming asylum upon entry to United States is reasonable. The panel has considered whether the claimant’s failure to claim asylum in United States when she became older undermines the claimant’s subjective fear. The claimant was born [XXX] and turned [XXX] years old in July 2018. The claimant entered Canada on [XXX] 2018. Therefore, the claimant was a minor during the entire time spent residing in United States. Considering the claimant’ s age, level of maturity, lack of parental accompaniment, and limited knowledge of the United State’s asylum claim system, the panel finds that the claimant’s explanation for failure to claim asylum, after spending approximately two and a half years in United States, is satisfactory. Therefore, the panel finds that the claimant’s failure to claim asylum in United States does not undermine the claimant’s subjective fear.

Status in United States

[14]     The claimant testified that she entered the United States illegally by use of travel documents belonging to her cousin, who is a citizen of United States. The claimant testified that she does not have any form of legal status in United States and has never applied for legal status in United States. RPD search results revealed no history of Temporary Visa Application attached to the claimant’s name. Fingerprints of the claimant submitted to the US Department of Homeland Security database resulted in a result of ‘no match’. In light of the evidence before the panel, the panel finds on a balance of probabilities that the claimant does not have legal status in United States.

Documentary Evidence

[15]     The claimant was asked whether she has any documentary evidence to demonstrate communications with her former same sex partner who she dated in United States. The claimant testified that she does not have any evidence of communications as she deleted the messages. The claimant testified that the reason she deleted all messages between herself and her former partner was due to the fact that she tried to be as discreet as possible. The claimant stated that her family members openly expressed disgust for any form of homosexual activity. The claimant testified that she kept her same sex relationship a secret from her relatives in United States. The panel finds the claimant’s explanation for a lack of documentary evidence to be reasonable. Considering that the claimant was residing in a familial environment that was discriminatory towards lesbian and gay individuals, the panel finds that it is reasonable that the claimant would delete evidence of communications between herself and her same sex partner.

[16]     The clamant provided support letters from her mother and cousin, including photo identification of each.[6] The letters corroborate the information provided in the claimant’s claim.

LGBTQ+ Services and Experience in Canada

[17]     The claimant testified that she is not aware of any LGBTQ+ organizations in Canada. She stated that she has never considered attending any type of LGBTQ+ services as she is not used to engaging in such programs. The claimant declared that she wants to be open about her sexuality in Canada however she finds it challenging to be completely open about her sexuality after having to be secretive about her sexual orientation for her entire life. The claimant testified that she does not use any social media apps to meet people in Canada. The claimant testified that she was involved in two same sex relationships during her adolescence and at this time she is single and not interested in entering a relationship at this time.

[18]     The panel finds the claimant to be a credible witness and accepts that the above noted events have occurred as alleged by the claimant in her oral and written testimonies. Accordingly, the panel finds that the claimant has established on a balance of probabilities that she is a lesbian woman.

Objective Basis

[19]     The panel has assessed the objective basis for the claimant’s fear of persecution in Nigeria. In making the assessment, the panel must consider the claimant’s personal circumstances and vulnerabilities, and in this regard, the panel refers to the UNHCR Handbook. Guidance from the UNHCR Handbook on Determining Refugee Status, and Canadian jurisprudence, indicates that discrimination can amount to persecution cumulatively when the following conditions are met. First, there must be a number of discriminatory acts which take place in a general atmosphere of insecurity in the country of origin. The discriminatory acts must be of such a nature that they are substantially prejudicial to the person concerned. Where the cumulative nature of discrimination results in an insecure future for the person concerned, this constitutes persecution.

[20]     The documentary evidence clearly states that same sex relationships are criminalized in Nigeria. The Same Sex Marriage (Prohibition) Act enacted in January 2014, effectively renders illegal all forms of activity supporting or promoting LGBTIQ rights.[7] Federal legislation prohibits a marriage contract or civil union entered into between persons of the same sex and provides penalties for the solemnisation and witnessing of same thereof.[8] A person who enters into a same sex marriage or union is liable on conviction to a term of 14 years imprisonment. Furthermore, a person who witnesses or is involved in any form of organization, club, society, or meetings surrounding same sex relationships is liable on conviction to a term of 10 years of imprisonment.

[21]     The objective evidence addresses the social stigma surrounding same sex relationships in Nigeria. Sources indicate that any sexual orientation that is not heterosexual is considered to be unnatural, demonic, and immoral in Nigeria.[9] Sources indicate that many LGBT individuals enter heterosexual relationships to “cover” for same-sex relationships. Bisexual individuals may marry members of the opposite sex due to societal pressures to marry and have children as well, and due to homophobic persecution, stigma, and in order to avoid suspicion of having a non-heterosexual orientation.[10]

[22]     In summary, the objective country condition evidence supports a conclusion that there is a clear objective basis for the claimant’ s fear of persecution on account of her sexual orientation as a lesbian. Accordingly, the panel finds that the claimant has a well-founded fear of persecution.

STATE PROTECTION

[23]     States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.[11]

[24]     In this case, the claimant fears persecution at the hands of Nigerian authorities and the Nigerian community because of the fact that individuals involved in same-sex relationship are criminalized and ostracized in Nigeria. As the state is the agent of persecution, the panel finds that it would be objectively unreasonable for the claimant to seek the protection of the state in light of the claimant’s particular circumstances.

INTERNAL FLIGHT ALTERNATIVE

[25]     The panel has considered whether a viable internal flight alternative exists for the claimant in Nigeria. On the evidence before the panel, the panel finds that there is a serious possibility of persecution throughout Nigeria. The Federal laws of Nigeria enforce the criminalization of same sex relationships, and are applicable throughout the country. Therefore, the test fails on the first prong, and a viable internal flight alternative does not exist for the claimant in Nigeria.

DECISION

[26]     For these reasons, the panel finds that the claimant faces a risk of persecution if she returns to Nigeria. Accordingly, the panel finds [XXX] to be a Convention refugee pursuant to Section 96 of the Immigration and refugee protection act. Therefore, the claim is accepted.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96, 97(1)(a) and 97(1)(b).

[2] Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update.

[3] Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, May 1, 2017

[4] Exhibit 1, Package of Information from the Referring CBSA / IRCC

[5] (Maldonado [1980] 2.F.C. 302 (C.A.))

[6] Exhibit 4

[7] National Documentation Package, Nigeria, 29 November 2019, tab 6.1: Treatment of sexual minorities, including legislation, state protection, and support services; the safety of sexual minorities living in Lagos and Abuja (February 2012-October 2015). Immigration and Refugee Board of Canada. 13 November 2015. NGA105321.E.

[8] National Documentation Package, Nigeria, 29 November 2019, tab 6.4: Same Sex Marriage (Prohibition) Act, 2013. Nigeria. 2013.

[9] National Documentation Package, Nigeria, 29 November 2019, tab 6.7: Information on how bisexuality is understood and perceived in Nigeria; whether bisexuality is distinguished from both male and female homosexuality (2014-June 2015). Immigration and Refugee Board of Canada. 9 September 2015. NGA105219.E.

[10] National Documentation Package, Nigeria, 29 November 2019, tab 6. 7: Information on how bisexuality is understood and perceived in Nigeria; whether bisexuality is distinguished from both male and female homosexuality (2014-June 2015). Immigration and Refugee Board of Canada. 9 September 2015. NGA105219.E.

[11] (Ward [1993] 2 S.C.R. 689)

Categories
All Countries Turkey

2020 RLLR 114

Citation: 2020 RLLR 114
Tribunal: Refugee Protection Division
Date of Decision: October 19, 2020
Panel: Christine Medycky
Counsel for the Claimant(s): Aleksandar Jeremic
Country: Turkey
RPD Number: TB9-35318
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000192-000202

REASONS FOR DECISION

INTRODUCTION

[1]       [XXX], a citizen of Turkey, is claiming refugee protection pursuant to sections 96(1) and 97(1) of the Immigration and Refugee Protection Action.[1]

[2]       As this claim is based on sexual orientation, I have taken into consideration at the hearing and in rendering my decision, the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.[2]

[3]       The purpose of the Guideline is to help decision-makers better understand cases involving sexual orientation, gender identity and expression (SOGIE) and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms. It addresses a number of issues, including the unique challenges individuals with diverse SOGIE face in establishing their SOGIE, and in presenting their refugee claims, the danger of stereotyping and inappropriate assumptions, as well as, what to consider when assessing credibility and evidence.

DETERMINATION

[4]       Having considered the totality of the evidence, I find that the claimant is a Convention refugee for the following reasons.

ALLEGATIONS

[5]       The details of the allegations are fully set out in the claimant’s Basis of Claim Form (BOC).[3] To summarize, the claimant alleges a fear of persecution at the hands of his family, society at large and the state authorities in Turkey, due to his sexual orientation as a gay person.

ANALYSIS

Identity

[6]       The claimant’s personal and national identities were established, on a balance of probabilities, by his Turkish passport, certified true copy of which was provided by the Minister.[4]

Nexus

[7]       I find that there is a connection between the persecution that the claimant fears and the Convention ground of membership in a particular social group, namely that of gay men in Turkey.

[8]       I find the claimant to be a credible witness. His testimony was straight-forward, detailed and frank. The claimant did not embellish. There were no discrepancies, contradictions, or omissions in the claimant’s oral and documentary evidence, that went to the core of the claim. Therefore, on a balance of probabilities, I accept that the claimant has established he is a gay man.

Background and self-identification

[9]       The claimant recounted that he comes from a family that is middle class and religious. His father is the head of the family, his mother is a housewife. The claimant has two older sisters whose marriages were arranged. The claimant self-identifies as a gay man. When asked what this term means to him, he stated that the meaning is different in Canada than in Turkey. In Turkey, he said it is synonymous to being “in prison” because there you cannot express your homosexuality openly, you must hide it and live your life “behind the scene” because it is unsafe to do so in public.

[10]     He testified that he started to feel different around the age of 9 or 10 but did not understand why at the time. When he asked his mother what the homosexual meant, a word he had heard on the television, she replied that he did not need to know and not to ask her such things. In his community, people were warned to keep their children away from homosexuals because they have no morals, are ill, and spread disease.

First experiences

[11]     The claimant was able to describe his first romantic encounters with the same sex. He was particularly affected by his experience with a high school student from another city. He provided details on how they met, what attracted him to the student, and where their ‘encounter’ took place. He was also able to express his emotions when the student’s cousin walked in on them, and describe the injuries he suffered as a result of the ensuing scuffle and how it explained them to his parents when he arrived back home. The claimant stated that after this incident he closed his Facebook account and changed his SIM card for his mobile to prevent from his friend’s cousin from finding him.

[12]     I asked the claimant if he had ever disclosed to anyone in Turkey that he was gay, and he replied that he confided his secret to a close high school friend, but only after she had divulged to him that she was a lesbian. This was confirmed in a letter from the said friend. Otherwise, he concealed his sexual orientation. I questioned him why he had not opened up to his more liberal aunt who lived in a different city than his parents, and he replied that although she was more liberal, she was still homophobic. He did not trust her to keep his secret and feared the potential repercussions he would suffer at the hands of his family, especially his father, if she told them he was gay.

[13]     The claimant testified that he some sexual relations with men during his university days, however he said they were not serious or long-term relationships.

Incident of abuse

[14]     The claimant stated that on two occasions he was verbally and/or physically assaulted due to his sexual orientation. The first occurred at an eatery in Istanbul where he and his lesbian friend were accosted by men shouting, “People should be burned alive. Your women look like men and your men look like women. Because of you people the world is going to end soon.” Other patrons joined in. The owner sensing trouble asked them to leave. Angered by what happened, his friend called the police. The police came, but did nothing, they just told them to go to another café. A few months later his lesbian friend was violently attacked in Istanbul and required hospitalization. The friend confirmed what happened at the eatery and the attack on her in a letter submitted into evidence.[5]

Long-term relationship

[15]     The claimant engaged in a long-term relationship with a man in Istanbul. The claimant moved to Canada with this man to pursue English language studies. After the relationship broke down, the man threatened to reveal the claimant’s sexual orientation to his family.

Confrontation with father

[16]     The claimant testified that his father called him on [XXX] 2019. He wanted to know where his son was. When the claimant told him he was in Canada, the father became angry and said, “you go to Canada and sleep with men?” He had heard about his sones “bad habits” from his friend and had seen photos. The claimant’s father told him the that he would purchase a ticket for him to return to Turkey and that once he was back in the village “we will solve your problems there”.

[17]     The claimant testified that his father said he would bury him alive and once he knew his son had disappeared, he would kill himself because his son had dishonoured him, and he could not face people. The claimant said that his father was screaming and swearing at him on the telephone and that he hung up on him and has not spoken to him since. He changed his telephone number so his father could not reach him. He does however communicate with his eldest sister, with whom he is the closest, once a month to get updates on the situation at home, but that she deletes his number after each call. The claimant filed a claim in Canada for refugee protection on [XXX] 2019.[6]

[18]     As to his involvement in the LGBT community in Canada, the claimant said he had registered with an LGBT NGO for a training but did completed it due to the COVID pandemic.

[19]     I accept on a balance of probabilities that the claimant has a subjective fear of persecution.

Objective Basis

[20]     Furthermore, I find on a balance of probabilities, that the claimant’s subjective fear has an objective basis.

Worsening situation

[21]     According to the National Documentation Package and country conditions documentation submitted by counsel, homosexuality has been decriminalized in Turkey since 1858 and for many years the LGBTI community enjoyed much freedom. However, the situation has worsened since the 70s when a succession of conservative governments came into power and systemically targeted the LGBTI community with repressive measures.[7]

[22]     Today, the situation of sexual minorities lags behind the standards of the European Union and the United Nations. Consequently, LGBT people in Turkey face discrimination, violence – both physical and emotional, stigmatization and marginalization.[8]

Freedom of assembly

[23]     Following an attempted coup on 15 July 2016, the Turkish Government declared a state of emergency. During this period, human rights and fundamental freedoms were severely restricted or suspended. A ban was imposed on public assemblies and activities of various civil society organizations.

[24]     In November 2017, Ankara’s governor imposed an indefinite ban on events organized by LGBTI associations because they risked “inciting hatred and enmity” and therefore the ban was needed to “prevent crimes being committed”, “protect public health and morality” and “protect other people’s rights and freedoms.” Pride events are also banned in Istanbul, Izmir, Antalya and Mersin. The NGOs Kos GL and Pink Life unsuccessfully challenged the ban in local administrative courts. Appeals to regional administrative court and to the Constitutional Court are pending. The ban violates Turkey’s national and International obligations to respect and protect rights to equality before the law and freedom of peaceful expression and association.

[25]     The impact of the ban is that it stigmatizes and marginalizes LGBTI people and makes them very vulnerable to attacks. LGBTI people are cast as immoral and criminals. As a result of this, many experienced LGBTI activists have sought asylum abroad.[9]

Perception and Attitude of Turkish Society

[26]     Although founded as a secular state, traditional Islamic values are deep-rooted in Turkey’s government and society. Turkish society is patriarchal and gender roles are clearly defined. While homosexuality is not banned in Turkey, it is largely viewed as immoral and unnatural behaviour. A global study conducted by Pew Research Center in 2013 reports that acceptance of homosexuality in Turkey remains at a mere 9 percent.

[27]     The conservative AKP government considers the family to be the primary social institution and sees its values and traditions as essential to nation building and maintaining peace. Modem values are thus perceived as a threat to the disintegration of traditional social values. A majority of politicians do not support the LGBTI cause because this does not align with the values and morals of Turkish society. The Minister for Women and Family Affairs has publicly referred to homosexuality as “a biological disturbance” or ”disease and biological disorder in need of treatment”.[10]

[28]     Furthermore, articles submitted by the claimant report that President Erdogan is tapping into strong nationalist and religious groups to bolster the sagging popularity of the AKP. In June 2019, Ali Erbas, who leads the Religious Affairs Directorate in Turkey, preached in a televised sermon on the coronavirus outbreak condemning homosexuality because it brings illness and decay. The head of the Turkish Red Crescent made a homophobic tweet in July of this year, which was sharply rebuked by the International Federation of Red Cross and Red Crescent Societies.[11]

Honour Killings

[29]     So adverse is Turkish society to sexual minorities that many LGBTI individuals are killed by members of their own family for having ‘brought shame ‘to the family. Two well publicized cases of “honour killing” are that of 18-year old Ahmet Yildiz killed by his father in 2008, and 17-year old Rosen Cicek murdered in 2012 by his father and two uncles. LGBT advocacy groups closely followed the two trials and sought to become intervening parties in the proceedings. The courts rejected their requests. Honour killings are hard to document in Turkey because they are often covered up by families and police avoid investigating them.[12]

Discrimination

[30]     Turkey does not have an anti-discrimination law perse, but anti-discrimination clauses are found in the Turkish constitution as well as various criminal, administrative and civil laws. The protected grounds explicitly enumerated differ from each other and are non-exhaustive.

[31]     Sexual orientation and gender identity are not listed among the protected grounds in the Turkish Constitution or other laws for example (the Penal Code, Labour Law, Basic Law on National Education, Law on Civil Servants, Civil Code, Law on Social Services, Regulation on Minimum Wages). Therefore, LGBTI persons’ rights are neither guaranteed, nor specifically protected under Turkish law. This critical gap in the law, which allows the courts to make rulings to the disadvantage of LGBTI persons.

[32]     The Human Rights and Equality Institution of Turkey (HREIT) is mandated to investigate, ex-officio or upon applications made, all allegations of discrimination and to render decisions on such cases. Both the European Commission and the UN Human Rights Committee have expressed concerns about the independence of the HREIT.

[33]     In 2019, the HREIT rejected complaints by trans persons of discrimination in accessing accommodations and services. A study by Mustafa Ozturk found that most LGBTI hide their sexual orientation in the workplace for fear of discrimination and those who do ‘come out’ experience severe discrimination or are terminated.

[34]     The European Commission has reported cases where police officers, teachers, bank personnel, and city workers that have lost their jobs due to their sexual orientation.[13]

Hate Crimes

[35]     Hates crimes target people for who they are or are perceived to be. Although Turkey does have a law against hate crimes (Article 22 of the Turkish Penal Code), it does not include sexual orientation and gender identity as one of the protected grounds.

[36]     The OSCE Office of Democratic Institutions and Human Rights (ODIHR) reported that Turkey’s law enforcement agencies do not record the bias motivations of hate crimes and that violations of human rights of LGBTI persons, gender-based violence, hate speech and crimes remain a matter of serious concern. Furthermore, the mainstream media under reports such crimes.

[37]     The lack of explicit legal protection for LGBTI persons and persistent discrimination against them amounts to a tacit endorsement of discrimination and violence against LGBTI persons. The documentary evidence shows that between 2010 and 2014, 41 murders of LGBTI personas were motivated by hate. Hate-crimes are not thoroughly and promptly investigated and often under punished in Turkey.[14]

[38]     Courts frequently reduce sentences for hate crimes against LGBTI persons by applying Article 29 of the Turkish Penal Code (“Any person who commits an offence in a state of anger or severe distress caused by an unjust act shall be sentenced to a penalty of imprisonment for a term of eighteen to twenty four years where the offence committed requires a penalty of aggravated life imprisonment and to a penalty of imprisonment for a term of twelve to eighteen years where the offence committed requires a penalty of life imprisonment.) The Penal Code does not define what an unjust act is.[15]

[39]     Having considered all of the evidence, I find on a balance of probabilities, that the claimant’s fear of persecution is well-founded. He would not be able to live openly as a homosexual in Turkey where he faces a serious possibility of persecution, and it is unreasonable to expect him to conceal his sexual identity or expression, in order to live free of persecution.

State Protection

[40]     As one of the agents of persecution is the Turkish state, adequate state protection is not available to the claimant.

Internal Flight Alternative

[41]     Neither does the claimant have a viable internal flight alternative. Turkey is in control of all of its territories and consequently there is no place he can go in the country that is safe.

[42]     Considering the totality of the evidence before me, I find that the claimant, [XXX], faces a serious possibility of persecution at the hands of his family, society at large and the state authorities, due to his sexual orientation as a gay person, if he returned to Turkey.

CONCLUSION

[43]     To conclude, I find that the claimant is a Convention refugee and therefore his claim for asylum is accepted.


[1] Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1)

[2] Chairperson’s Guideline 9 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017

[3] Exhibit 2

[4] Exhibit 1

[5] Exhibit 4

[6] Exhibit 2

[7] Exhibit 3, s.6.2; Exhibit 5

[8] Exhibit 3, s..6.1; Exhibit 5

[9] Exhibit 3, s..6.1-4; Exhibit 5 

[10] Exhibit 3, s..6.3; Exhibit 5

[11] Exhibit 5

[12] Exhibit 3, s.6.3

[13] Exhibit 3, s.6.3; Exhibit 5

[14] Exhibit 3, s.1.14, 2.1, 6.2

[15] Ibid

Categories
All Countries Kenya

2020 RLLR 112

Citation: 2020 RLLR 112
Tribunal: Refugee Protection Division
Date of Decision: November 10, 2020
Panel: Mary Truemner
Counsel for the Claimant(s): Deryck Ramcharitar
Country: Kenya
RPD Number: TB9-29346
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000185-000187

DECISION

[1]       MEMBER: These are my reasons for my decision granting the applicant’s — sorry, the claimant’s claim for refugee status in file number TB9-29346, the claim of [XXX].

[2]       The claimant is a citizen of Kenya on claim that he is bisexual. He is seeking refugee protection in Canada pursuant to s. 96 of the Immigration and Refugee Protection Act.

[3]       The allegations of the claim are found in the Basis of Claim form.  In summary, the claimant fears persecution by homophobic family members and other homophobic people in the future in Kenya.  He claims that he cannot live openly as a bisexual man in Kenya because homophobia is widespread. Even if he were to live in secret having relationships with men, he fears being discovered. Kenya has laws against sexual relationships between men.

[4]       I find that the claimant has satisfied his burden of establishing a serious possibility of persecution on a Convention ground upon return to Kenya.

[5]       The identity of the claimant is established on a balance of probabilities through the certified true copy of his passport currently held by the Canadian Border Service Agency, CBSA.

[6]       Regarding credibility, when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their truth. The claimant testified about his marriage to a woman in Kenya with whom he had three children, but also about his bisexual relationships in the United Arab Emirates and later with a Kenyan lover where he took a holiday in Tanzania and with whom he had romantic relations in Kenyan before he fled to Canada with a visa. His testimony was consistent with the narrative in his BOC — or, substantially consistent.

[7]       In 2004, the claimant had his first sexual relationship with a man, a work colleague in the United Arab Emirates, which put the claimant in peril there so that he stopped working in the UAE and returned to Kenya. Back in Kenya in 2016, he began an affair with another man, again a colleague, and was again put in peril because of it when vacationing with his lover in Tanzania. His family in Kenya found out about his lover and threatened his life for — and threatened the claimant’s life for bringing shame to the family. The claimant’s testimony was materially consistent with the Basis of Claim.

[8]       He also produced at the hearing an email to an agency here in Toronto which supports his testimony about his identity as a bisexual man. Also, he had testify a witness, his uncle, to whom he fled in Canada. The uncle substantiated his circumstances as a married man in Kenya and talked about what support he gave to the claimant here in Toronto.

[9]       While there were some inconsistencies in the claimant’s testimony, the Basis of Claim, and the claimant’s witness’ testimony, they were not material to the issue of whether he is bisexual, and the claimant’s explanations for the inconsistencies have satisfied me that he is telling the truth regarding his sexual orientation. I find that the claimant is generally credible and that on a balance of probabilities he is bisexual.

[10]     The overall objective evidence supports the claim. The claimant’s testimony was consistent with descriptions in the NDP, Exhibit 3, of widespread discrimination against men in Kenya who have same-sex relations, while the most recent item on the issue, item 6.6 from the UK’s Home Office, April 2020, reports that discrimination is lessening, it is still taboo in many families and communities in which violence will flare up.  I find that in the documentary evidence there is an objective basis for the claimant’s fear of persecution and his fear is well founded.

[11]     As well, the criminal law prohibits same-sex sexual relations between men with a maximum penalty of 21 years in prison. Therefore, with regard to state protection, I find on a balance of probabilities that rather than being protected from assaults by homophobic attackers, it is more likely that the claimant reporting to authorities that he is gay would be at risk of prosecution and would unlikely be protected.  Given that the laws of the state have criminalized sexual relations between men, I find that it would be objectively reasonable for the claimant to seek protection of the state in his circumstances.

[12]     Regarding an internal flight alternative, I find there is nowhere for the claimant to live safely in Kenya given that the criminalization of sexual relationships between men affects the entire country.  I find that there is a serious possibility of persecution throughout Kenya given the pervasive discrimination against gay couples and I find that there is no possibility of adequate state protection in any part of the country. Therefore, a viable IFA does not exist for the claimant who, although bisexual, has testified that he is essentially bisexual and is — and will behave as a bisexual man.

[13]     Having considered all of the evidence, I find on a balance of probabilities that the claimant is bisexual and given his profile, there is a serious possibility that he would face persecution with inadequate protection if he were to return to Kenya.

——————–REASONS CONCLUDED ——————–

Categories
All Countries Nigeria

2020 RLLR 108

Citation: 2020 RLLR 108
Tribunal: Refugee Protection Division
Date of Decision: February 21, 2020
Panel: Z. Perhan
Counsel for the Claimant(s): Benjamin Allison
Country: Nigeria
RPD Number: TB9-16707
Associated RPD Number(s): TB9-16771
ATIP Number: A-2021-00945
ATIP Pages: 000168-000172

DECISION

[1]       MEMBER:    So, this is the decision for [XXX] file number TB9-16771 the principal claimant and her son [XXX] the minor claimant.

[2]       I’ve had an opportunity to consider your testimony, examined the evidence before me and I’m ready to render my decision orally. You will receive an edited … unedited transcript of the decision in the mail. Your counsel will also get a copy so if you have any questions you’re welcome to ask him.

[3]       You claim to be citizens of Nigeria claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[4]       I find that both of you are Convention refugees for the following reasons.

[5]       The allegations of your claim can be found in the Basis of Claim Form in Exhibit 2. The details were elaborated today in your testimony. In summary, you the principal claimant, fear persecution in Nigeria due to your sexual orientation as a member of a particular social group, namely because you are bisexual. You also fear persecution at the hands of your first husband whose abusive relationship you escaped when you fled Nigeria for the United States.

[6]       Your son the minor claimant fears persecution as a child of a bisexual women who will be ostracized by the community members and might face spiritual cleansing to rid him of his mother’s sins.

[7]       Based on the type of claim I’ve carefully considered Chairperson’s guidelines 9, 4, and 3. So, sexual orientation and gender identity, women refugee claimants, and child refugee claimants.

[8]       I find your identities as nationals of Nigeria have been established, on a balance of probabilities, through your testimony, through your valid Nigerian passports which were presented when you made your claim in Exhibit 1. I find no reasons to doubt the authenticity of those documents.

[9]       In terms of your general credibility I find you to be a credible witness. Principal claimant, you have testified in a straightforward manner. There were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. I also find that were no embellishments made within your testimony. Therefore, I accept what you have alleged in support of your claim including the following.

[10]     Central issue of your claim is sexual orientation so I put a lot of weight into your testimony and documents relating to your past and current same sex partners in Nigeria and in the United States.

[11]     You testified about your first relationship and your longest relationship in Nigeria which you had to end as you fled the country in 2016. You did not escape because your sexuality was revealed, but because you had been in an abusive relationship until [XXX] 2016 with a man who physical and verbally tormented you, after the divorce you still could not escape his threats and left in [XXX] 2016 on a visitor’s visa to the United States.

[12]     There you met your second husband who started the sponsorship process so you could stay in the US permanently. However, because you were also in a same sex relationship and your husband found out he stopped the process of sponsorship in [XXX] 2017. Told your family and relatives in Nigeria about your sexuality and his unwillingness to have a bisexual wife.

[13]     After consulting with the church members in the United States you understood that you would not be able to obtain the status there. Returning to Nigeria would mean being persecuted by the community and the State for being a bisexual. So, you were advised to go to Canada and claim refugee protection here.

[14]     I did not … you did not present any supporting letters from your previous same sex partners. You lost contact with your Nigerian partner in 2016 because she was upset with you leaving her and going to the US.

[15]     Your US partner did not support your after you split from your second husband and did not want anyone in the Nigerian community in the United States to know about you two. You yourself were ashamed and still feel ashamed of who you are and not ready to share your feelings with anyone.

[16]     Your family members in Nigeria known you’re a bisexual and you also received telephone threats from your second husband’s family who told you not to come back to Nigeria. In addition, your son, if returned to Nigeria would have to probably undergo the spiritual cleansing to rid him of the mother’s sins and homosexuality.

[17]     While in Canada you have been an active church member though in Windsor participating in services regularly and volunteering in the local community centre. But even now it is hard for you to share your feelings and have a relationship with anyone. You’re still depressed about your past relationship and the consequences they had for you.

[18]     In general, I find your testimony today was credible and, on balance of probabilities, you, the principal claimant, are a bisexual woman.

[19]     As to the minor claimant I asked whether he would face any harm if he’s returned to Nigeria. You said he would not face any serious harm but would … would be separated from his mother.

[20]     During the counsel’s questioning you said that if your son gets … you also added if your son gets into the hands of the elders who know you’re bisexuality he will have to go through dangerous ritual cleansing. In addition, he will be discriminated against and ostracized as a family member of the bisexual. The harassment, as counsel indicated in his submissions, could amount to persecution and risk to boy’s life.

[21]     I find there is a link between what you fear and one of the give Convention grounds. As noted earlier the Convention ground for your claim is a particular social group. So, on a balance of probabilities, I accept that you are a bisexual woman and the minor claimant your son is a family member of the bisexual. Your claim is analyzed pursuant to Section 96 of the Immigration and Refugee Protection Act.

[22]     The overall objective evidence supports your claim for Convention refugee protection based on the membership in a particular social group, namely sexual orientation as a bisexual.

[23]     National Documentation Package for Nigeria in Exhibit 3 Items 6.1, 2.1, and 6.7 indicate that same sex relationships are criminalized in Nigeria. In particular, according to the Same Sex Marriage (Prohibition) Act all forms of LGBTQ activity, supporting and promoting it are illegal in Nigeria. Anyone convicted of entering into a same sex marriage or civil union may be sentenced to 14 years in prison. Anybody aiding or assisting homosexual activities faces a punishment of up to 10 years in prison.

[24]     Any sexual orientation that is not heterosexual is considered to be unnatural, demonic, and immoral in Nigeria.

[25]     The documentary evidence further indicates that family members of LGBTQ persons face treatment amounting to persecution and it’s found in Tab 6.11, 10.1 in the National Documentation Package. So, family members of sexual minorities including spouses, parents, children, and siblings face ostracism, stigmatization, embarrassment from community members, other extended family members. Family members of sexual minorities can be cut off from their community, can be insulted and assaulted by community members.

[26]     In addition and as pointed by the counsel, Nigerian police force have arrested and detained relatives of wanted person. You as a bisexual is a wanted person in Nigeria. This act is often undertaken by the police with the intent of drawing a wanted person from hiding and forcing their surrender to law enforcement authorities.

[27]     So, counsel was right. Tab 10.1 actually points out that fact that family members of wanted persons will be and can be detained with no particular reason.

[28]     The minor … according to counsel’s submissions in addition the minor claimant could be… also face a great possibility for his persecution, increased danger that could lead to chi Id abduction, him being pressured into spiritual cleansing rituals that elders would perform on him.

[29]     Overall, the objective country condition evidence supports conclusion that both of you, you and your son, have an objective basis for your claim. You as a bisexual person and the minor claimant your son as a family member of the bisexual person.

[30]     You also fear police, authorities, and Nigerian community in general as same sex relationship is criminalized across Nigeria. I find it would be objectively unreasonable for you to seek protection of the authorities in Nigeria. Adequate State protection would not be available to you as you fear the State.

[31]     With regards to possible viable internal flight alternative in Nigeria, given the laws, the Federal laws of Nigeria criminalizing same sex relationship, I find there is a serious possibility of persecution for you throughout Nigeria. Therefore, a viable internal flight alternative does not exist for you in Nigeria.

[32]     As per your son the minor claimant, I also considered IFA for him, but again in his particular circumstances it is unreasonable to relocate anywhere in Nigeria without adults. It’s simply not safe.

[33]     So, having considered all of the evidence I find there is a serious possibility that you would face persecution in Nigeria pursuant to Section 96 of the Immigration and Refugee Protection Act.

[34]     I conclude that you are both Convention refugees based on your membership in a particular social group, principal claimant as a bisexual and the minor claimant as a family member of a bisexual. I therefore accept both your claims. Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2020 RLLR 103

Citation: 2020 RLLR 103
Tribunal: Refugee Protection Division
Date of Decision: January 15, 2020
Panel: Dena Hamat
Counsel for the Claimant(s): Bolanle Olusina (Sina) Ogunleye
Country: Nigeria
RPD Number: TB8-31185
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000136-000139

DECISION

[1]       MEMBER: I’ve considered your testimony and the other evidence in this case and I’m ready to render my decision orally. The claimant, [XXX] is a citizen of Nigeria and claims a well-founded fear of persecution based on her sexual orientation as a lesbian. She additionally fears persecution from her relatives based on her gender, as they’re attempting to force her into prostitution. In assessing your claim, I have considered Chairperson’s Guideline 9 proceedings before the IRB involving sexual orientation and gender identity and expression.

[2]       Interpreter: According to Section 9, right?

[3]       Member: I’ve considered the Chairperson’s Guideline 9. Do you mind actually if you-, can you do simultaneous interpretation, if you don’t mind?

[4]       Counsel: At the back

[5]       Member: So, if you can flip your microphone and just.

[6]       Counsel: Thank you. (inaudible) here you can sit. Just talking to her (inaudible)

[7]       Interpreter: Oh ok, ok, ok, ok.

[8]       Counsel: Sit beside her

[9]       Interpreter: Oh ok, ok

[10]     MEMBER: Thank you. I’ve also considered the Chairperson’s Guideline 4 on gender-related claims.

[11]     I find that you are a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act.

[12]     The details of your claim are documented in your Basis of Claim form and were elaborated upon by you orally during the hearing.

[13]     In summary, you fear persecution in Nigeria at the hands of the government and society at large, due to your sexual orientation as a lesbian woman.

[14]     Your identity as a national of Nigeria has been established on a balance of probabilities through your passport on file at Exhibit 1.

[15]     There was an issue in that you transited through the US in [XXX] 2018 with a false US passport and there is therefore no biometric match despite this trip. There is also no objective evidence of your stay in the United States.

[16]     Nevertheless, I find that you have established that you do not have any status in the United States through your co-, spontaneous and consistent testimony.

[17]     With regard to credibility, I have found you overall to be a credible witness. You testified in a straightforward manner and there were no inconsistencies that were not reasonably explained. Given that I have found you to be a credible witness, I also accept what you have alleged in support of your claim, including the following.

[18]     You first became aware of your sexual orientation when you were growing up in Nigeria. You had two same-sex relationships in Nigeria. You were not able to express your sexual orientation freely in Nigeria. They, your relatives attempted to force you into prostitution in 2016. You were assaulted when you refused. You presented documentary evidence in support of your claim, including a medical report confirming your assault in 2016, letters of support from your ex-girlfriends in Nigeria, letters of support from your brother and mother in Nigeria, a letter of support from your previous employer in Nigeria and documentation from the 519 program and the Black Coalition for AIDS Prevention.

[19]     I did have some concerns about your alleged relationship in Canada, as your testimony had inconsistencies with regards to the progression of your relationship. I also had concerns about the lack of any documentation to corroborate this one year relationship.

[20]     While I do draw a negative inference from these inconsistencies and from the lack of documentation, I do find that you credibly established that you were in same-sex relationships in Nigeria. I therefore find that this concern is not determinative.

[21]     Having regard to all the evidence, the claimant established, on a balance of probabilities, her lesbian orientation.

[22]     The most recent Department of State report on human rights practices in Nigeria, at Item 2.1 indicates that, human rights issues included crimes involving violence targeting LGBTI persons and the criminalization of status in same-sex conduct based on sexual orientation and gender identity. At Items 6.11 of the NDP, the Comprehensive Immigration and Refugee report on the situation of sexual and gender minorities in Nigeria, caver the period between 2014 and 2018 indicates the following. Sources report that since Nigeria passed the SSMPA in 2014, which hads been used as a tool by authorities and society to act against sexual minorities, including to carry out human rights violations, such as torture, sexual violence, arbitrary detention, violations of due process rights and extortion. Sources indicate that Nigerian society generally disapproves of sexual minorities. Sources indicate that sexual minorities are generally not accepted by family members. According to sources, labels such as gay, lesbian and transgender and bi-sexual are used in Nigeria often with derision or in a derogatory manner.

[23]     Sexual minorities do not or are reluctant to openly identify as sexual minorities because it is dangerous for them, as they may face violence or be ostracized. Both les-, both, both bi-sexuality and homosexuality are viewed negatively and neither bi-sexuals nor homosexuals are accepted in Nigerian society. According to sources, sexual minorities are subject to mob attacks or violence, vigilante groups have reportedly targeted and attack sexual minorities. The documentary evidence establishes an objective basis for this claim. The same IRB report at, Item 6.11 of the NDP indicates the following. Sources indicate that police raid gatherings of sexual minorities and arrest them often. Police extorts sexual minorities when they are arrested or detained. According to sources, state protection is not available to sexual minorities in Nigeria, given that homosexual acts are illegal. The SOGIE Guidelines indicate as follows. The criminalization of the existence or behavior of individuals with diverse SOGIE, may create a climate of impunity for perpetrators of violence, and normalize acts of blackmail, sexual abuse, violence and extortion by state and non-state actors.

[24]     Based on the claimant’s personal circumstances, as well the-, as the objective country documentation, I find that adequate state protection would not be available to her in Nigeria.

[25]     The claimant has rebutted the presumption of state protection.

[26]     The Response to Information Request, at Item 6.1 of the NDP indicates that, the intolerant attitude towards homosexuals is prevalent throughout Nigeria. The SOGIE Guideline states that it is well established in law, that an IFA is not viable if an individual, with a diverse SOGIE, must conceal their SOGIE in order to live in that location.

[27]     I therefore find that you face a serious per-, possibility of persecution in Nigeria based on your, based on your sexual orientation.

[28]     In conclusion, I, I find that [XXX] faces a serious possibility of persecution in Nigeria on the basis of her sexual orientation. Therefore, she is a Convention refugee and I accept her claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Ghana

2020 RLLR 102

Citation: 2020 RLLR 102
Tribunal: Refugee Protection Division
Date of Decision: November 26, 2020
Panel: Sarah Acker
Counsel for the Claimant(s): Marianne B Lithwick
Country: Ghana
RPD Number: TB8-30911
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000126-000135

REASONS FOR DECISION

[1]       [XXX] (hereafter, “the claimant”) is a [XXX]-year old citizen of Ghana. He claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).[1]

ALLEGATIONS

[2]       The claimant’s allegations are found in his Basis of Claim (“BOC”) form[2] and amended BOC forms.[3] In summary, the claimant fears persecution by the Ghanaian police and his community, particularly in the form of mob violence, on account of his sexual orientation as a bisexual man. The claimant fears that if he returns to Ghana he will be persecuted and/or killed.

DETERMINATION

[3]       The panel finds that the claimant has established that he faces a serious possibility of persecution on a Convention ground, namely, his membership in a particular social group – individuals with non-heteronormative sexual orientations – upon return to Ghana.

[4]       In making this determination, the panel has considered the Chairperson’s Guideline 9: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression (“SOGIE”).[4]

ANALYSIS

Identity

[5]       The identity of the claimant has been established on a balance of probabilities through the certified true copy of his Ghanaian passport that was seized by the Minister,[5] in addition to a copy of his Ghanaian birth certificate.[6]

Credibility

[6]       When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their veracity.

[7]       Having reviewed all the evidence, the panel finds, on a balance of probabilities, that the claimant identifies as bisexual and fears persecution because of his sexual orientation if he returns to Ghana. While the panel also had credibility concerns about other parts of the claimant’s evidence, those concerns did not outweigh the allegations that were proven on a balance of probabilities. Given that the claimant has credibly made out key allegations and established a subjective fear of persecution, the other concerns are not determinative.

The claimant identifies as a bisexual man

[8]       The claimant testified credibly about his relationship with his long-time same sex partner,

W.Y.  The claimant met W.Y. when he was 9 years old through their mutual love for soccer, and grew up playing soccer together; they were the closest of friends. Eventually, their relationship became intimate when the claimant turned 15 years old. The claimant testified that even after their relationship became sexual, it took time for the two men to verbally acknowledge the nature of their relationship and express their feelings to one another. The claimant said that he was shy and needed to build up courage to tell W.Y. that he had feelings for him. When W.Y. said those feelings were reciprocal, the claimant was overwhelmed with happiness. The claimant submitted photos of himself and W.Y. attending community weddings together and in their soccer jerseys in support of his claim.[7] The claimant testified to the content of these photos spontaneously and clearly. The panel finds the photographic evidence of their relationship credible.

[9]       The claimant spontaneously and clearly provided details about his relationship with W.Y. that were not found in his BOC forms. The claimant described W.Y.’s love of dance and music and W.Y.’s unparalleled ability to calm the claimant down and lift his spirits when he was feeling upset. The claimant described a physical and emotional attraction to his partner, and explained that he and W.Y. had a lot in common including their professional involvement in soccer and their religious upbringing. The claimant also testified credibly about the steps he and W.Y. took to hide their relationship, including their carefully timed visits, the claimant’s marriage to a woman, and their use of football’s masculine image in Ghana to hide their sexual orientations.

[10]     Therefore, the panel finds, on a balance of probabilities, that the claimant has established that he identifies as a bisexual man and was involved in an intimate relationship with a man in Ghana named W.Y.

The claimant has a subjective fear of being persecuted in Ghana on account of his sexual orientation

[11]     The claimant testified spontaneously about his country and community’s views towards homosexuality. When the panel asked the claimant about his upbringing, he explained that he and his family were deeply religious Muslims and there were rules dictating behavioural “do’s and don’t’s.” When the panel asked the claimant for an example of those “do’s and don’t’s,” the claimant immediately answered that a “don’t” includes two men sleeping together. The claimant explained that he was given a religious education as a young man, and learned that the Bible and Quran view male homosexual relationships as blasphemous and punish such behaviour by stoning. While the claimant never personally viewed members of the gay community being persecuted, he heard about instances of mob and police violence against gay people on the radio and in the newspapers. The claimant said that one radio station reported an instance of police violence against a gay individual and the commentators laughed during their reporting and agreed with the police abuse. The claimant added that both Christians and Muslims preached against homosexuality in his community.

[12]     The panel asked the claimant why he did not make a claim for asylum in the United States when he was contracted to [XXX] in [XXX] from [XXX] to [XXX] of 2018.[8] The claimant answered that, during that time, he was on a work visa to [XXX]. He had not experienced any persecution because of his sexuality in Ghana and did not think anyone at home would discover him and W.Y. The claimant added that he did not even know about the concept of “asylum” at the time and the thought of seeking that kind of protection did not come to his mind.

[13]     The panel finds this explanation reasonable. In 2018, the claimant was a young man looking to further his [XXX]. He was in love with his same-sex partner in Ghana, had taken steps to hide this relationship from everyone he knew, and did not think he would be discovered. Therefore, the panel does not draw a negative credibility inference with respect to the claimant’s failure to make an asylum claim in the United States during his time in [XXX].

[14]     The panel asked the claimant why he did not make an asylum claim in Chicago upon his arrival there in [XXX] 2018 after fleeing persecution in Ghana. The claimant testified that he was staying with a Ghanaian friend in Chicago, and although he was in the United States he was surrounded by the Ghanaian expatriate community and did not feel safe telling them why he left Ghana. The claimant said that he did not know anything about the formal process of seeking asylum when he arrived in the United States, and his primary objective was to leave Ghana for his personal safety. Once in Chicago, the claimant began researching how to be safe as an individual with a non-heteronormative sexual orientation and he found a Canadian Pride Parade website and reasoned that Canada would protect him. This is the reason he came to Canada for protection.

[15]     The panel finds this explanation reasonable. At the time he fled Ghana, the claimant was a [XXX]-year old man. He testified that he stopped his studies at the age of [XXX] in order to pursue his soccer career. The claimant had no background in law and was not aware of the concept of “asylum” until he crossed the Canadian border and border services agents directed him to a lawyer. The claimant testified that he feared for his safety while staying with his friend in the United States because his friend’s community was Ghanaian. For that reason, the claimant did not perceive his situation in the United States as safe and sought refuge approximately two and a half months later in Canada. Given the claimant’s explanation, age, and level of education, the panel does not draw a negative credibility inference with respect to the claimant’s failure to seek asylum during his time in the United States from [XXX] to [XXX] of 2018.

[16]     The panel finds, on a balance of probabilities, that the claimant was so fearful of being persecuted on account of his sexual orientation in Ghana that he did not even feel safe in the United States because he was living among the Ghanaian expatriate community.

[17]     After assessing the claimant’s evidence about how the Ghanaian government and his community treat members of the gay community, the panel finds, on a balance of probabilities, that the claimant has a subjective fear of persecution in Ghana on account of his identity as a bisexual man. As a result, this claim is being assessed under s. 96 of the IRPA, and the panel finds the claimant has established a nexus to a convention ground, namely, his membership m a particular social group – individuals with non-heteronormative sexual orientations.

[18]     While the panel had credibility concerns about how the claimant lost contact with W.Y. and the details surrounding how the claimant’s relationship with W.Y. was discovered, these concerns were insufficient to overcome the findings that the claimant was in a relationship with W.Y. and that he has made out his sexual orientation on a balance of probabilities.

OBJECTIVE EVIDENCE

[19]     The objective evidence in this case supports the claimant’s allegations.

[20]     Section 104 of the Ghanaian Criminal Code (“the Code”) criminalizes same-sex conduct between consenting adults, and refers to such conduct as “unnatural carnal knowledge.” Consensual same-sex intimacy with an individual over 16 years old is categorised as a misdemeanour, with a sentence of up to 3 years’ imprisonment.[9]

[21]     Prominent Ghanaian politicians have voiced their opposition to and disdain for the gay community. In February and July of 2017, the Speaker of Parliament, Professor Mike Ocquaye, referred to homosexuality as an “abomination” and called for stricter laws against same-sex conduct.[10] During a radio interview in April 2018, the Second Deputy Speaker of Parliament, Alban Bagbin, said that “homosexuality is worse than [an] atomic bomb.”[11] In March 2020, an organizer for the main opposition party in Ghana, the National Democratic Congress, said: “Homosexuality is a disease. In veterinary [medicine] you don’t have to condone homosexuality; you have to kill all animals that attempt same-sex mating. Why should we humans do that?”.[12]

[22]     Homophobic rhetoric is not limited to national and local government officials – it pervades Catholic, Evangelical, Islamic, and traditional religious institutions as well as Ghanaian media outlets. While these forces, along with the criminalization of same-sex activity in Ghana, rarely lead to prosecution of gay individuals, they contribute to a climate of discrimination, violence, arrests, threats, and punishment of the gay community both in public and private settings.[13]

[23]     With respect to persecution of gay individuals in the private setting, the National Documentation Package (“NDP”) for Ghana, Item 6.2, documents numerous instances of parents disowning their children and forcing them out of their family homes upon discovering their sexual orientation. This aligns with the claimant’s evidence that, since his sexual orientation became known in his community, the claimant has lost contact with his parents due to their anger towards him for “shaming” his family due to his sexual orientation. Counsel submitted country documentation from February 2020, found in Exhibit 7, wherein the Ashanti Region Chief Imam, Sheikh Muumin Abdul Haroun, described homosexuality as an “evil that must not be countenanced in any way because it is despised by God.” This evidence also aligns with the claimant’s testimony about the deep-seated homophobia in his masque and Muslim community.

[24]     NDP Item 6.2 documents instances of violence perpetrated against members or perceived members of the gay community.   In January 2016, a mob of students at a high school in Kumasi, the claimant’s home town, attempted to lynch three male students who were accused of engaging in homosexuality. The attackers were armed with clubs, machetes, and stones. The school responded by expelling the three intended victims. According to NDP Item 6.6, in August 2019 police briefly detained a young man reporting a robbery because the man mentioned he was gay.[14] In August 2014, a mob in Walewale threatened to lynch a 21-year old male student because he was gay. Police responded by arresting the intended victim.[15]  An article submitted by counsel notes that, as recently as October 2020, a mob stormed an area of Accra armed with machetes, stones, and sticks in search of a suspected gay person, and the mob leader said: “We want to make Ghana a hell for gay practitioners and their supporters.”[16]

[25]     The panel therefore finds, on a balance of probabilities, that the claimant’s subjective fear of persecution in Ghana on account of his identity as a bisexual man has an objective basis, and is well-founded.

STATE PROTECTION

[26]     There is a presumption that a state can protect its citizens unless the state is in a situation of complete breakdown. A claimant can rebut this presumption with clear and convincing evidence to the contrary.

[27]     In this case, the agent of persecution is the state because the forward-facing persecution the claimant would face in Ghana is, in part, at the hands of state authorities – that is, members and supports of the Ghanaian government and police force.

[28]     The NDP reflects mixed evidence with respect to the availability of state protection for members of the gay community. Item 6.6 states that certain individuals in the Ghanaian Police Force have made efforts to protect members of the gay community, such as Assistant Commissioner of Police Jones Blantari.[17] The NDP adds that some gay rights activists have noted that police attitudes towards protecting members of the gay community are slowly changing, “with community members feeling more comfortable with certain police officers whom they could turn [to] for assistance” [emphasis added].[18]

[29]     However, despite evidence of individual members of the Ghanaian police force making positive efforts to protect members of the gay community, the objective country evidence depicts an overall lack of adequate state protection for members of the gay community in Ghana.

[30]     NDP Item 6.6 indicates that, as recently as 2019, there were reports of police reluctance to investigate claims of assault or violence against members of the gay community. While there were no reported cases of police or government violence against members of the gay community in 2019, the NDP notes that stigma, intimidation, and the attitude of the police toward gay persons were factors in preventing victims from reporting incidents of abuse.[19] Other reports cited instances of members of the gay community being arbitrarily arrested by police when seeking their help, and being subject to extortion as well as sexual and physical abuse by police.[20]

[31]     Based on the claimant’s personal circumstances as well as the objective country documentation, the panel finds, on a balance of probabilities, that the claimant has rebutted the presumption of state protection with clear and convincing evidence. As someone who identifies as bisexual, there is no state protection available to the claimant in Ghana.

INTERNAL FLIGHT ALTERNATIVE

[32]     The panel has also considered whether a viable internal flight alternative exists for the claimant.

[33]     Given that the state is one of the agents of persecution, that homosexual activity between consenting adults is criminalized in Ghana, and there is no objective evidence that shows the state does not have control over the entire country of Ghana, the panel finds, on a balance of probabilities, that the claimant would face a serious possibility of persecution throughout Ghana and therefore a viable internal flight alternative does not exist for him.

CONCLUSION

[34]     The claimant testified credibly that he identifies as a bisexual man and spent many years in a same sex relationship with a fellow soccer player, W.Y. The claimant also provided reasonable explanations about why he did not make asylum claims in the United States. While the panel had credibility concerns with certain parts of the claimant’s evidence, those concerns did not speak to the heart of the claim and were not sufficient to rebut the presumption of truth in this case.

[35]     Having considered the claimant’s testimony, the supporting evidence presented, and the objective evidence, the panel finds there is a serious possibility that the claimant would face persecution at the hands of the Ghanaian state, its agents, his family, community, and the Ghanian community at large if he returned to Ghana.

[36]     For the aforementioned reasons, the panel concludes that the claimant is a Convention refugee pursuant to s. 96 IRPA.

[37]     Therefore, the claim is accepted.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).

[2] Consolidated List of Documents (CLOD), Exhibit 2.

[3] CLOD, Exhibits 5, 10.

[4] Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

[5] CLOD, Exhibit 1

[6] CLOD, Exhibit 6, p.1.

[7] CLOD, Exhibit 6, pp. 4-12, 32-33.

[8] The claimant provided evidence to support his employment as a [XXX] in [XXX] during this time. See CLOD, Exhibit 6, pp.23-30.

[9] National Documentation Package (“NDP”) for Ghana, dated 30 March 2020, Item 6.6.

[10] Ghana NDP, Item 6.1.

[11] Ghana NDP, Item 6.6

[12] Ghana NDP, Item 6.4.

[13] Ghana NDP, Items 6.1, 6.2.

[14] Ghana NDP, Item 6.6.

[15] Ghana NDP, Item 6.2.

[16] CLOD, Exhibit 9, pp. 5-7.

[17] Ghana NDP, Item 6.6, p. 24.

[18] Ibid.

[19] Ghana NDP, Item 6.6.

[20] Ghana NDP, Items 6.3, 6.4.

Categories
All Countries Kenya

2020 RLLR 88

Citation: 2020 RLLR 88
Tribunal: Refugee Protection Division
Date of Decision: August 28, 2020
Panel: Kerry Cundal
Counsel for the Claimant(s): Bashir A. Khan
Country: Kenya
RPD Number: VB9-09240
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000186-000191

DECISION

[1]       MEMBER:   Okay, welcome back, we’re now on the record again.  Okay, good news, I am going to accept your claim, okay?  And I’m going to give you my decision and reasons for doing so today, okay?

[2]       All right, so it’s the beginning of the next chapter, I’ll give you the decision and reasons now.

[3]       This is the decision of the Refugee Protection Division in the claim of [XXX], a citizen of Kenya, who is claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act. Your identity has been established on a balance of probabilities by a copy of your Kenyan passport found at Exhibit 2.

ALLEGATIONS:

[4]       You fear return to Kenya because you fear persecution, including death threats and imprisonment because of your sexual orientation as a gay man.  You left in [XXX] of 2019 and travelled directly to Canada.  You provided significant details in your Basis of Claim form. Your passport is at Exhibit 1, and your Basis of Claim form is at Exhibit 2. I will highlight some of your details of your narrative and testimony today in this decision. I have also reviewed and applied the Chairperson’s Guideline Nine, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. And in particular I am 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 Kenya.

DETERMINATION:

[5]       I find that you have established that you are a Convention refugee pursuant to Section 96 of the Act for the reasons that follow.

ANALYSIS:

Credibility

[6]       You testified in a straightforward and consistent manner today, and I find that you are a credible witness.

Well-founded Fear of Persecution and Nexus

[7]       As I’ve indicated, you’ve testified in a straightforward manner today. You provided details with respect to your sexual orientation in particular. You gave details about your relationship with [XXX], which was a long-term relationship of approximately 11 years. You testified that you met [XXX] while you were both working for [XXX].  You testified that you and [XXX] kept this relationship secret because it’s illegal to be in an open gay relationship in Kenya. You testified that you would do weekend trips together, go watch rugby games together.  You testified that your wife, [XXX], did not know about this.  You testified that you married [XXX] in 2018, but you had known her and been with her since 2007, and your son with [XXX] was born in [XXX]. You testified that your understanding is that [XXX] did not, although she had suspicions, she did not fully know that you were gay until after you had already arrived in Canada when she understood why you had left Kenya.

[8]       You testified that your career was going well and that you had a good life in Kenya. But as a result of threats, extortion, blackmail, from your former boyfriend, [XXX], that the threats became so significant up until before you left in 2019, that you feared for your life.

[9]       You also testified that one of the threats that you returned by text was a photo of your son and an indication that the texter (ph) knew that – where your son went to school. And at that point you testified you understood that these threats were very serious.  And you testified that the relationship ended with [XXX] in 2011, and subsequent to that [XXX] would ask you for money, as you testified he considered that you should look after him, paying rent, buying things for him, or he would threaten to out you or tell others that you were gay.  And so out of fear you continued to financially support [XXX] over the years.

[10]     You testified that you later learned that [XXX] was part of a larger group that was involved in extortion and threats against sexual minorities in terms of outing them if they did not pay rent according to the demand.

[11]     You also provided genuine testimony today regarding your life experience as a gay man in Kenya, and the fears that you had in terms of making sure that no one ever knew about your sexual orientation. You testified about the struggles that you had in coming to Canada. You testified that you were homeless and had nothing when you first arrived in Canada and it was through the Mennonite Church and the Sunshine House where you felt welcome as a gay man and you were able to get on your feet and get a home.

[12]     You testified that you’ve been able to open up about things that have happened to you and about your sexual orientation for the first time in your life here in Canada where you’ve been free. You’ve testified that you have issues because of the trauma because of this relationship with [XXX], and so you’ve testified that you have trust issues and you’re not ready for another relationship.  You also testified that you spoke to your wife about a month ago and you testified that you have no idea where that relationship is at or whether she has any interest in the relationship with you. You testified that she was in disbelief and shock and not a positive response to coming to grips with the fact that you are a gay man, from your wife’s perspective, as you testified.

[13]     Based on the totality of the evidence before me, I find that you have established a nexus to a Convention ground, membership in a particular social group due to your sexual orientation as a gay man.  You also provided corroborative documents at Exhibit 4, including the letter from the Sunshine House with respect to your sexual orientation. As well as some of your employment documents, education documents, as well as identity documents including your marriage certificate to [XXX]. And this is found at Exhibit 4.

[14]     The objective evidence supports your fear of return to Kenya as a gay man, and at the National Documentation Package, item 2.1, which is a U.S. Department of State Report it indicates that there is criminalization of homosexuality in Kenya. The National Documentation Package, item 6.1, which is a report from an international association supporting sexual minorities, and it specifically outlines section 162 of the Penal Code which criminalizes same-sex activities. It further gives more details regarding the persecution of sexual minorities in Kenya, including by the police officers. It indicates that police officers will do forced anal examinations with respect to finding proof that an individual is a sexual minority.

[15]     It also indicates that there are reports of mob violence and beatings against sexual minorities throughout Kenya, and the police will then arrest the victim, the person who is a member of a sexual minority after the mob has beaten them. The penalty for same-sex activities in Kenya continues to be 14 years in prison. The National Documentation Package, item 2.2 which is a Human Rights Watch Report, also indicates that the human rights abuses in Kenya are perpetrated by security forces and the police. There continue to be extrajudicial killings and disappearances. And it also indicates that the High Court in Kenya upheld the laws against same-sex activities in Kenya. So, unfortunately, today the situation for sexual minorities in Kenya is very dire indeed.

[16]     With respect to State protection and internal flight alternative. Given the objective evidence that the State is an agent of harm against sexual minorities, such as yourself as a gay man, I find that there is no State protection available to you as they are the perpetrator of the human rights abuses that you would face in Kenya.

[17]     Further, given that the laws against sexual minorities cover all of Kenya, I find that it would be neither safe nor objectively reasonable in all of the circumstances, including your particular circumstances as a gay man, to try to relocate anywhere in Kenya to be safe.  Accordingly, I find that there is no Internal Flight Alternative available to you.

CONCLUSION:

[18]     For the foregoing reasons, I determine that you are a Convention refugee pursuant to Section 96 of the Act and the Board, therefore, accepts your claim.

[19]     Okay. Thank you, Counsel, and, sir, I wish you all the best in all of your future endeavours, okay?

———- REASONS CONCLUDED ———-