Tag: PSG: SOGIE

2021 RLLR 56

Citation: 2021 RLLR 56
Tribunal: Refugee Protection Division
Date of Decision: January 28, 2021
Panel: Lindsay Trevelyan
Counsel for the Claimant(s): Subuhi Siddiqui
Country: Kenya
RPD Number: TB9-30161
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[2] You are claiming to be a citizen of Kenya and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. In deciding this claim, I have taken into consideration all of the evidence, oral testimony, as well as the Chairperson’s Guideline 9 proceedings before the IRB involving Sexual Orientation and Gender Identity and Expression, the SOGIE Guidelines. I’ve also taken into consideration the Chairperson’s Guideline 4 Women Refugee Claimants Fearing Gender-Related Persecution. I’ve considered your testimony and the other evidence in the case and I am ready to render my decision orally.

[1] MEMBER: This is the decision for the following XXXX XXXX XXXX, file number TB9-30161.

[3] I find that you are a Convention refugee because you face a serious possibility of persecution on the grounds of your membership in a particular social group, namely as a bisexual woman, and also as a survivor of gender-based violence. My reasons are as follows.

[4] The allegations can be found in your Basis of Claim form at Exhibit 2. You allege you are a citizen of Kenya and that you fear the Government, non-government actors, and your ex-husband due to your sexual orientation. You also allege that there is no state protection for you, nor is there an internal flight alternative.

[5] Your personal identity as a citizen of Kenya has been established by your testimony and the supporting documents filed in the exhibits, specifically your copy of your Kenyan passport and your National Identity Card. I therefore find on a balance of probabilities that identity and country of reference have been established.

[6] I find that there is a clear nexus between your fear and the Convention ground of membership in a particular social group, that of a bisexual woman and a woman facing gender-based violence. I find that the test under Section 96, whether there’s a serious possibility of persecution should you return to Kenya, is met.

[7] In terms of your general credibility, I have found you to be a credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim form. You testified sincerely and emotionally as to your relationship with your same-sex partner in Canada, and your relief at being able to express your sexuality without fear in Canada.

[8] Your current same-sex partner also appeared as a witness at today’s hearing. She provided credible and corroborative testimony. You both spoke of gifts and celebrations together and time spent at St. Chad’s Church, at the Black Coalition for AIDS Prevention, as well enjoying meals together. You also provided a significant number of photographs of you and your partner and over 200 pages of text messages between you both over a period of several months. And this is in Exhibit 6.

[9] I find that your testimony, that of your partner, and this evidence establishes that you are in a same-sex relationship. I therefore find that you have established your identity as bisexual woman.

[10] You provided the following documents in Exhibit 6 to support your claim which I find relevant and credible. Letters of support from both your same-sex partner and your friend and community member in Canada; an affidavit and letter from your sister in Kenya attesting to your identity as a bisexual woman and the harm you have endured from your ex-husband; an affidavit from your friend in Kenya attesting to your identity as a bisexual woman and your same-sex relationship in Kenya and the threats that you had endured; an affidavit from your neighbour in Kenya attesting to the abuse you suffered at the hands of your ex-husband and an incident requiring him to take you to hospital; a XXXX XXXX from a counsellor you have seen for no less than eight counselling sessions which refers to your low mood, persistent feelings of guilt and shame, and the presence of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX; and a letter from the Refugee Settlement Coordinator at the Black Coalition for AIDS Prevention (Black CAP) in regards to your regular attendance at Foreign Integration Programming for LGBTQ newcomers and his knowledge of your same-sex partner and journey in Canada.

[11] Your Basis of Claim and your compelling testimony detailed your same-sex relationships in Kenya and the abuse and violence you suffered at the hands of your estranged husband and the community. Your testimony also detailed the discrimination and the threats that followed you after your ex-husband exposed your sexual orientation to the community. You provided spontaneous details about those events and were able to explain any apparent inconsistencies or omissions.

[12] I therefore find that you were in an abusive marriage and that your husband discovered you were having a same-sex relationship and that you and your partner were attacked and endangered in Kenya. I find your subjective fear is established by your credible testimony and I believe what you allege on a balance of probabilities.

[13] I also find that there is an objective basis for what you fear in Kenya. The objective evidence is provided in Exhibit 3, the National Documentation Package for Kenya from September 30, 2020. Your counsel has also provided additional country condition documentation in Exhibit 8.

[14] The Kenyan Penal Code, as amended by Act No. 5 of 2003, criminalizes consensual same-sex sexual activity carrying a maximum penalty of 14 years imprisonment. This is seen to justify the corollary homophobic police abuse, mob violence, harassment, and intimidation perpetrated on the LGBTQI community in Kenya, and this is Exhibit 3, Item 6.1.

[15] Though no legislation in Kenya specifically mentions sexual acts between women, LBQ women are frequently arrested, denied access to basic rights and amenities, and excluded from participation as citizens in Kenya. The Sexual Offences Act from 2006 criminalizes indecent acts between adults. The ambiguities of this clause and those in the Penal Code allow for arbitrary decisions and judicial discretion in issuing verdicts according to personal moral views, and this is Exhibit 3, Item 6.6.

[16] This evidence establishes an objective basis for fear of persecution. Based on this, I find that your fear of persecution in Kenya on the basis of your sexual orientation, namely as a bisexual woman is an objectively well-founded one.

[17] Given that the agent of persecution is the State and the persecution you fear would be at the hands of the authorities, you have rebutted the presumption of state protection in Kenya. This is corroborated by Item 1.6 which says, “Many LGBT victims of violence believe they have no recourse and that the police are just as likely to persecute them as to protect them.” The report goes on to describe an incident where an LGBT man was stabbed in the chest and reported the incident to police only to be arrested himself and charged with sodomy. I find that there is no state protection available to you.

[18] Further, since the same laws exist throughout Kenya, there is no safe alternative location in Kenya where one could live openly and freely as a bisexual woman. An internal flight alternative is not viable if it depends on the person concealing their sexual orientation. There is no IFA in Kenya.

[19] Based on the totality of the evidence, I find you to be a Convention refugee because you face a serious possibility of persecution on the grounds of your membership in a particular social group, that as a bisexual woman. Therefore, I accept your claim.

———- REASONS CONCLUDED ———-

All Countries Iran

2021 RLLR 55

Citation: 2021 RLLR 55
Tribunal: Refugee Protection Division
Date of Decision: August 23, 2021
Panel: Ted Bethune
Counsel for the Claimant(s): Adetayo G Akinyemi
Country: Iran
RPD Number: TB9-08875
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1] MEMBER: This is the decision for XXXX XXXX XXXX, file number TB9-08875.

[2] I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. I have also considered and applied the guidelines relating to gender expression and sexual orientation.

[3] You claim to be a citizen of Iran and are claiming refugee protection pursuant to section 96 and 97 of the Immigration and Refugee Protection Act. I find that you are a Convention refugee for the following reasons.

[4] The allegations of your claim in your Basis of Claim form. In short, you allege persecution as a bisexual man. You allege that you realized your sexual orientation throughout high school. And when you were in second year, you felt a strong sexual attraction to another boy in your school, and that you struggled with this due to the attitude of your community towards same-sex attraction. You allege that, in your final year of high school, you became involved in a romantic relationship with that same boy. You allege this relationship continued on — until 2012, when he dropped out of the university you both attended, and that you had lost contact by November of 2013.

[5] You allege that you eventually reconnected in March 2018 when he contacted you and asked for a lot of money, which you gave. However, after you realized he had a drug addiction, you declined to give him further loans. You allege that he continued to ask for money and eventually turned hostile. In November 2018, you allege he threatened to expose your sexual orientation to your wife if you did not give him further money. You allege that you then disclosed your prior same-sex relationship to your wife to prevent him from blackmailing you and then continued to refuse to give money to your former partner.

[6] You allege that, subsequently, you came to Canada in XXXX of 2019, and that while in Canada, you found out that your former same-sex partner had been arrested and had given your name as one of his same-sex partners, leading the police in Iran to begin searching for you. You allege that, in Iran, you would face imprisonment and torture, as well as possible execution by the Iranian government due to your sexual orientation. You allege there is no state protection for you or an internal flight alternative anywhere in Iran.

[7] Your personal identity as a citizen of Iran has been established by your testimony and the supporting documents filed in Exhibit. Specifically, your valid Iranian passport and Canadian visa. I, therefore, find on a balance of probabilities that your identity and country of reference have been established.

[8] I find that there is a link between what you fear and one of the five Convention grounds because of your membership in a particular social group as a bisexual man. I find on a balance of probabilities, based on your testimony and the supporting documents filed, that there is a serious possibility of persecution from the Iranian government based on your sexual orientation. Sworn testimony is presumed to be credible unless there is a valid reason to doubt it. I am cognizant of the difficulties faced by individuals in establishing their claims, including cultural factors, testifying to an interpreter, and the milieu of the hearing room.

[9] Overall, I have found you to be credible. I found your testimony flowed naturally and unprompted and was generally consistent with the evidence in your narrative. You were able to explain in significant detail about the beginning of your relationship with your same-sex partner, including that you had seen him in previous at high school, and on the first day of your last year of high school, you had an interaction with him where you lent him your only pen due to your attraction to him. You then testified as to how your friendship grew and gave examples of the small flirtatious gestures you made to one another as you tested to see if the other person was also interested in a romantic relationship, including how you both interpreted things such as inadvertent touching while walking to be romantic attraction because neither of you would shy away from such contact. You were able to candidly testify in detail about that night of your first romantic encounter, where you had the spent the Iranian New Year at his house, and he suggested you stay over, and when laying in bed together, he touched your hand and began a romantic encounter.

[10] You testified honestly and in significant detail about your same-sex partner and specific events throughout the relationship, including examples of his interest in volleyball and how that sparked your own interest in volleyball, examples of fights you had with him over his cellphone use during dinner, and the plans you made for your second anniversary to spend it together, since you had not been able to spend your first anniversary together, which had left you heartbroken.

[11] I found your description of how you lost touch, ending your relationship, to be honest, including your description of your emotions at the time and the efforts that you had made to attempt to regain contact. Also found that your description of your emotions when you reconnected with him to be candid and honest, including your emotional reaction when he asked for money and when he eventually started threatening to reveal your prior relationship in an attempt to extort more money from you.

[12] I also considered your delay in leaving Iran from when you first realized your sexual orientation in high school until you left in XXXX of 2019. You testified that your same-sex attraction was not discovered by the Iranian authorities until after you had arrived in Canada, and that you had managed to keep your sexual orientation a secret until then. I consider that explanation reasonable, and I draw no negative credibility inference.

[13] I have also considered your departure from Iran to other countries prior to coming to Canada, namely to Russia in 2007, China in 2018, and Turkey in 2018, and that you did not claim refugee status in any of those countries, but instead returned to Iran. You testified that your same-sex attraction was not discovered by the Iranian authorities until after you had arrived in Canada, and that having managed to keep it a secret, there was no threat to you and that you liked living in Iran. I consider that explanation reasonable, and I draw no negative credibility inference.

[14] I’ve also considered your delay in claiming refugee protection from when you arrived in Canada on XXXX XXXX, 2019, until you signed your Basis of Claim form on March 29th, 2019. You testified that you did not know your sexual orientation had been discovered by the Iranian authorities until March 10th, 2019, but you had a valid visitor visa for a full month after you arrived in Canada, and I note that your Basis of Claim form was signed less than three weeks after you found out your sexual orientation had been disclosed to the Iranian government. I consider that explanation reasonable, and I draw no negative credibility inference.

[15] I, therefore, find on a balance of probabilities that you have established your sexual orientation as a bisexual man. I am, therefore, satisfied that there is a serious possibility that you would face persecution at the hands of either the Iranian government or your community should you return to Iran. I find that you have established your subjective fear.

[16] I further find on a balance of probabilities that you have an objective basis for your fear because of the documented conditions for Iran, as per the evidence in Exhibit 3, the National Documentation Package for Iran.

[17] Item 2 point reads, “The law criminalizes consensual same-sex sexual activity, which is punishable by death, flogging, or a lesser punishment. The law does not distinguish between consensual and non-consensual same-sex intercourse, and NGOs reported this lack of clarity led to both the victim and the perpetrator being held criminally liable under the law in cases of assault. The law does not prohibit discrimination based on sexual orientation and gender identity. While few details were available for specific cases, lesbian, gay, bisexual, transgender, and intersex activists expressed concern that the government executed LGBTI individuals under the pretext of more severe, and possibly specious, criminal charges such as rape. In June 2019, the foreign minister appeared to defend executions of LGBTI persons for their status or conduct.”

[18] Item 6.6 reads, “A number of interviews with persons accused of homosexual behaviour seem to show that the authorities use harsh measures during arrests and interrogations. Intimidation, blackmailing, incommunicado detention, rape, torture, coercion to sign, false confessions, and extrajudicial punishments such as flogging are widely practiced during detention and interrogation. In most cases, authorities try to press the detainee to make a confession of homosexual conduct and/or to reveal the identity of other homosexual persons. As various special procedures mandate holders have recognized, the criminalization of private consensual homosexual acts increases stigmatization and make people with diverse sexual orientations and gender identities, including minors, more vulnerable to community violence. Research carried out by the Iranian Lesbian and Transgender Networks shows that LGBT adolescents tend to experience homophobic taunts, insults, and threats on a constant basis, and this is in fact so common that many of them decide to isolate themselves in order to avoid being harassed or assaulted by members of the public.”

[19] I find on a balance of probabilities that your subjective fear has an objective basis. Therefore, I find you to have a well-founded fear of persecution due to your sexual orientation.

[20] As same-sex sexual activity is criminalized by the government in Iran, I find that there is clear and convincing evidence that state protection would not be available to you. Likewise, as your persecution is at the hands of the state, and the state applies its persecution throughout the country, I find that there is nowhere in Iran where you would not face a serious possibility of persecution based on your membership in a particular social group as a bisexual man. As the test for an internal flight alternative fails on the first prong, I find that there is no viable internal flight alternative for you.

[21] Based on the totality of the evidence, I find you to have a serious possibility of persecution in Iran due to your membership in a particular social group as a bisexual man, and therefore, to be a Convention refugee. Your claim is, therefore, accepted.

[22] CLAIMANT: Thank you very much, sir. Thank you.

[23] COUNSEL: Thank you.

[24] INTERPRETER: (Speaking foreign language).

[25] CLAIMANT: Thank you so much.

[26] MEMBER: Thank you very much. This hearing is now concluded. I wish you well.

——————–REASONS CONCLUDED ——————–

All Countries Ukraine

2021 RLLR 54

Citation: 2021 RLLR 54
Tribunal: Refugee Protection Division
Date of Decision: April 19, 2021
Panel: Josee Bouchard
Counsel for the Claimant(s): Diane B. Coulthard
Country: Ukraine
RPD Number: TB8-33288
Associated RPD Number(s): TB8-33313
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1] MEMBER: For the record, I am starting the decision now. This is the decision of the following claimants. The principal claimant, the first name is XXXX XXXX XXXX XXXX XXXX XXXX XXXX, the last name XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX file number TB8-33288, and her son, the minor claimant, the first name is XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX the last name is XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX file number TB8-33313. The claimants are claiming to be citizens of Ukraine and are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act. In preparing my decision, I have considered and applied the chairperson’s guidelines 9, proceedings before the Immigration and Refugee Board involving sexual orientation and gender identity and expression. The principal claimant was appointed to be the designated representative for the minor claimant, effective July 19th, 2019. I have considered the whole claimant’s testimony, and the other evidence in the case, and I am ready to render my decision orally.

[2] I find that the claimants have established a serious possibility of persecution in Ukraine by virtue of their membership in a particular social group, namely, as a lesbian for the principal claimant, and because of his familial relationship with the principal claimant for the minor claimant. The specifics of the claims are set out in the principal claimant’s narrative and their Basis of Claim forms, and the amendments to the Basis of Claim forms, all filed as Exhibits 2.1, 2.2, and 2.3.

[3] The claimants allege to be citizens of Ukraine. They fear persecution at the hands of the Ukrainian authorities and society at large because of the membership in a particular social group, namely, as a lesbian for the principal claimant, and for the minor claimant, because of his familial relationship with the principal claimant. The claimants allege that there is no state protection for them or an internal flight alternative.

[4] The claimants’ personal and national identities, as citizens of Ukraine, have been established on the balance of probabilities, by the principal claimant‘s testimony, and the supporting documents filed as Exhibit 1, namely, their valid passports, issued by the government of Ukraine. I find that there is a link between what the claimants fear and the grounds under s. 96 of the Immigration and Refugee Protection Act, namely, membership in a particular social group. Therefore, the claims are assessed under s. 96 of the Immigration and Refugee Protection Act.

[5] In terms of the principal claimant’s general credibility, I found her to be a credible witness, and I believe what she has alleged in her oral testimonies and the Basis of Claim forms. The principal claimant’s evidence was detailed and consistent, both internally and with her documentation. Throughout the hearing, the principal claimant was articulate, responsive, and forthright. The principal claimant was able to elaborate on her narrative and gave detailed explanations to the questions. The claims were well supported, and I noted no material inconsistencies or omissions, such that the presumption of truthfulness could be rebutted. The principal claimant has established on a balance of probabilities the following.

[6] The principal claimant is a lesbian. This claim is supported by the principal claimant’s credible testimony, statements from same-sex partners and friends, a statement from the principal claimant’s sister, an applications to the 519 Community Centre for the lesbian, gay, bisexual, transgender community, or LGBT, and several photographs of the principal claimant with same-sex partners or former same-sex partners taken over the years at various locations at Canada and Ukraine, and these are all filed as Exhibits 7.1 and 7.2. When she was 22 years old, the principal claimant dated, and later married, a man. She had a child, the minor claimant, with this man. In December 2005, the principal claimant and her spouse divorced. Two years later, the principal claimant’s former spouse passed away. This is supported by the principal claimant’s credible testimony and narrative, and the minor claimant’s birth certificate, the record of marriage certificate, certificate of marriage dissolution, and the principal claimant’s former spouse’s certificate of death filed as Exhibits 1 and 4. Over the years, the principal claimant had several same-sex relationships in Ukraine and in Canada. While in Ukraine, the principal claimant kept her sexual orientation a secret for fear of persecution. The claim is supported by the principal claimant’s credible testimony and statements from same-sex partners and a friend, a statement from the principal claimant’s sister, and several photographs of the principal claimant with same-sex partners or former same-sex partners taken over the years at various locations. These documents are all filed as Exhibits 7.1 and 7.2.

[7] In 2017 and 2018, the principal claimant spent her summers in Canada, to work on a XXXX. This claim is supported by the principal claimant’s credible testimony and her Canadian work permits filed as Exhibit 7.1. While in Canada, the principal claimants’ parents found out about her sexual orientation and were horrified. As a result, the principal claimant is no longer on speaking terms with her father and has a difficult relationship with her mother. Friends and family were also informed and began threatening and accusing the principal claimant. The principal claimant believes that her life and that of the minor claimant, who is the son of a single lesbian mother, are at risk in Ukraine. This claim is supported by the principal claimant’s credible testimony, and a statement from her sister, filed as Exhibit 7.1. There is no reason to cast any doubt on the veracity of the documentary evidence, and as such, I place great weight on these documents to support the claimant’s allegations and overall claim. I find that the claimant’s subjective fear is established by the principal claimant’s credible testimony and I believe what she has alleged on a balance of probabilities.

[8] The objective country reports are consistent with the claimant’s evidence about the violence suffered by members of the LGBT community in Ukraine. The national documentation package, or NDP for Ukraine, dated June 30th, 2020, at Exhibit 3, Item 1.6, is an annual review of the human rights situation of lesbian, gay, bisexual, trans and intersex people in Ukraine governing the period of January to December 2019. It was issued by the international lesbian, gay, bisexual, trans and intersex association of Europe, or LGBTI. It notes that notwithstanding its national strategy on human rights and its relevant action plan for 2015 to 2020, and the sections referring to LGBTI rights, the government did not make progress on its implementation. In May, the UN independent expert on protection against violence and discrimination based on sexual orientation and gender identity carried out a country visit to Ukraine. The independent expert highlighted that legislation is adequate, but implementation is lacking, that LGBTI people are by and large forced to hide their identities as a result of stigma, and that attacks against public events are of serious concern.

[9] Item 2.1 of Exhibit 3, the Ukraine 2019 human rights report from the United States Department of State, notes that significant human rights issues in 2018 included crimes involving violence or threat of violence targeting lesbian, gay, bisexual, transgender and intersex person. It further states that civil society groups remained concerned about the lack of accountability for crimes committed by radical groups in cases documented in 2018. During the year, members of such groups committed violent attacks on ethnic minorities, LGBTI persons, feminists, and other individuals they considered to be un-Ukrainian or anti-Ukrainian. The UN High Commissioner for Human Rights monitoring mission in Ukraine noted that the failure of police and prosecutors to prevent these acts of violence, properly classify them as hate crimes, and effectively investigate and prosecute them, created an environment of impunity and lack of justice for victims.

[10] The same report adds that there was societal violence against the LGBTI community, often perpetrated by members of violent radical groups, and authorities often did not adequately investigate these cases, or hold perpetrators to account. The UN High Commission for Human Rights monitoring mission in Ukraine noted that attacks against members of the LGBTI community were rarely classified under criminal provisions pertaining to hate crimes. Crimes of discrimination against LGBTI persons remained under-reported. The NDP documents also notes serious concerns about families of LGBTI individuals, including those raised by LGBTI individuals such as the minor claimant. Exhibit 3 at Item 6.3 recommends the elimination of all provisions in the Ukrainian legislation that lead to discrimination on the grounds of sexual orientation and gender identity. In particular, it notes that prohibiting discrimination on the grounds of sexual orientation and gender identity should protect all families, in particular, same-sex family couples, and children raised by them. Item 6.4, at Exhibit 3, notes that while welcoming increasing efforts in many countries to protect the LGBT, the rights of the LGBTI people, 12 UN entities remain seriously concerned that around the world, millions of LGBTI individuals, or those perceived as LGBTI individuals, and their families, face widespread human rights violations. It is cause for alarm and action.

[11] The claimants have also filed recent country condition articles to the reports about the persecution of the LGBTI community in Ukraine, and those are all entered as Exhibit 6. As the claimants have established a subjective fear, and an objective basis for that fear, I find that they have established a well-founded fear of persecution.

[12] When making a refugee claim, a claimant must establish on a balance of probabilities that adequate state protection is not available. There is a presumption that state protection is available, and the onus is on the claimant to provide clear and convincing evidence to rebut such presumption. So, Item 6.3 of Exhibit 3 discusses the lack of the state protection for the LGBTI community in Ukraine. It states as follows: “Violence by right-wing radical groups remains a sore issue for Ukrainian LGBTI organizations and individual activists. The situation in this area has not undergone significant changes with the few previous years. Right-wing radical organizations do not reduce the rate of their homophobic aggression, and law enforcement agencies do not take steps to attractively address this problem. Most high-profile events, such as equality marches, are provided with sufficiently reliable protection from attacks by their aggressive proponents, but in other cases, the police usually act very passively. Hate crimes against LGBTI people are investigated ineffectively, offenders often avoid responsibility, and the motives of intolerance on the grounds of sexual orientation or gender identity are ignored.” I find that state protection would not be reasonably forthcoming for the claimants. In addition, one agent of persecution is the state, as the persecution they could face should they return to Ukraine is at the hands of the authorities. Accordingly, I find that there is no state protection available to the claimants.

[13] I have also considered whether a viable internal flight alternative exists for the claimant. An agent of persecution is the Ukrainian government. The evidence reviewed above confirms that the oppressive treatment of members of the LGBTI community and the lack of state protection is nationwide. I find that there is a serious possibility of persecution for the claimants throughout Ukraine and therefore find that there is no viable internal flight alternative.

[14] Mister Interpreter, the following paragraph is the conclusion, or the determination.

[15] INTERPRETER: Yes, Madam Member.

[16] MEMBER: Based on the totality of the evidence, I find the claimants to be Convention refugees because they have demonstrated a serious possibility of persecution in Ukraine by virtue of their membership in a particular social group, namely, as a lesbian, for the principal claimant, and for the minor claimant, his familial relationship to the principal claimant. I accept their claims.

——————–REASONS CONCLUDED ——————–

All Countries Mexico

2021 RLLR 53

Citation: 2021 RLLR 53
Tribunal: Refugee Protection Division
Date of Decision: October 27, 2021
Panel: S. Seevaratnam
Counsel for the Claimant(s): Amedeo Clivio
Country: Mexico
RPD Number: TC1-04681
Associated RPD Number(s): TC1-04721
ATIP Number: A-2022-01594
ATIP Pages: N/A

REASONS FOR DECISION

[1] The claimants, XXXX XXXX XXXX XXXX(principal claimant) and his partner XXXXX XXXX XXXXX XXXXX (associate claimant), claim to be citizens of Mexico and they are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

[2] The principal claimant alleges he fears returning to Mexico as a member of a particular social group, a bisexual. The associate claimant alleges he fears returning to Mexico as a member of a particular social group, a gay man. They fear persecution from their homophobic community. The claimants also fear returning to Mexico due to the Cartel Jalisco Nueva Generación (CJNG) who they believe work in collaboration with the corrupt police and the Mexican government. The claimants are two young men in a same-sex relationship since 2015.²

[3] The panel has carefully considered the Chairperson’s Guideline 9 on Proceedings Before the Immigration and Refugee Board Involving Sexual Orientation and Gender Identity and Expression, prior to assessing the merits of this claim.³

ALLEGATIONS

[4] The details of the allegations are outlined in the principal claimant’s (PC) Basis of Claim (BOC) Form⁴ and the associate claimant’s (AC) Basis of Claim (BOC) Form.⁵A synopsis of the allegations is as follows.

[5] XXXX (PC) testified that his father, in 2007 or 2008, started working as a – XXXX XXXX XXXX in Mexico City.⁶ He explained that his father started storing electronics, weapons, and other valuables in their garage.⁷ The PC stated that his father was a corrupt XXXX XXXX who maintained links to the CJNG cartel.⁸ He stated that in 2013, members of the cartel, disgruntled with his father, came to their home in search of him. When they were unable to locate him, they kidnapped his older brother XXXX.⁹ Later, his father secured XXXX release from the cartel, but he arrived home severely bruised.¹⁰ XXXX explained that XXXX was clearly beaten and tortured. The claimants fear similar reprisals.

[6] The PC stated that his father left the XXXX XXXX in 2015, for reasons unknown.¹¹ However, his father continued to work with the cartel XXXX XXXX XXXX XXXX.¹²

[7] XXXX testified that his father dislocated his elbow when he caught him smiling at a young male in public.¹³ The PC explained that on another occasion, when he was about 15, he and his friend XXXX went to workout at a gym behind their school. As they exited the gym, a police cruiser drove by and noticed them exchanging a kiss. XXXX stated that he and XXXX were immediately taken in the police cruiser, reprimanded for their conduct, and held overnight in detention at the police station. They were warned not to engage in same-sex amorous behaviour.¹⁴

[8] XXXX (AC) explained that his family members are traditional and religious. He explained that the community is homophobic. Both claimants testified that they tried to keep their sexual orientation a secret in Mexico in order to avoid becoming victims of violence perpetrated by members of society.¹⁵

[9] The AC stated that he was attracted to a male classmate who rejected his advances. This led to him being verbally abused, bullied, and ostracized at school among his peers.¹⁶ On another occasion, at age 14, the AC was walking hand in hand with his boyfriend. They were threatened by passengers in a vehicle driving by and became the potential victims of a physical assault.¹⁷

[10] Both claimants testified they have suffered numerous acts of discrimination in several aspects of their lives which they believe amount to persecution. They explained that the police in Mexico reflect the homophobic society and protection is unavailable for bisexual or gay men within Mexico. They fear physical and verbal abuse by society. They believe they are at a grave risk of suffering violence if they were to disclose their sexual orientation.

[11] On December 12, 2018, the claimants were pursued by members of the CJNG cartel.¹⁸ The criminal cartel shot twice in their direction, but the claimants were able to escape.¹⁹ Fearing for their life, they fled their country of nationality and sought refuge in Canada. ²⁰

DETERMINATION

[12] The panel finds the claimants to be Convention refugees. The panel’s reasons are as follows.

IDENTITY

[13] In Exhibit 5, the claimants have provided copies of their passports issued by the government of Mexico.²¹ In addition, the associate claimant has provided a copy of his Mexican electoral voter’ s card.

[14] The panel finds the claimants to be nationals of Mexico. The panel is satisfied with their identities as members of the LGBTQ community.

CREDIBILITY

[15] The panel is guided by the leading jurisprudence on the issue of credibility. Maldonado²² stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.

[16] The panel has carefully assessed the totality of the claimants’ sworn viva voce evidence, their personal and country condition documents corroborating their testimony, specifically the information they have provided in their Basis of Claim (BOC) Forms and narratives,²³ the letter detailing the circumstances faced by XXXX (PC) by his stepmother, XXXX²⁴ photos,²⁵ and country conditions regarding LGBTQ people in Mexico and the CJNG cartel.²⁶

[17] The panel finds the claimants to be credible and trustworthy witnesses. Their oral testimony was candid and straightforward. Accordingly, the claimants have established their subjective fear of persecution based on their sexual orientation and membership in a particular group, family of a corrupt XXXX.

WELL-FOUNDED FEAR OF PERSECUTION

Sexual Orientation

[18] The panel has sought guidance from reliable and reputable documentary evidence regarding the current plight of bisexual and gay men in Mexico.

[19] The US Department of State (DOS) Mexico Country Report on Human Rights 2020 states as follows:

According to the OHCHR, in the first six months of the year, there were 25 hate- crime homicides committed against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons. Federal law prohibits discrimination against LGBTI individuals. A Mexico City municipal law provides increased penalties for hate crimes based on sexual orientation and gender identity. Civil society groups claimed police routinely subjected LGBTI persons to mistreatment while in custody. Discrimination based on sexual orientation and gender identity was prevalent, despite a gradual increase in public acceptance of LGBTI individuals, according to public opinion surveys. There were reports the government did not always investigate and punish those complicit in abuses, especially outside Mexico City. On July 24, Mexico City passed a local law to ban LGBTI conversion therapy. A CNDH poll conducted in 2019 found six of every 10 members of the LGBTI community reported experiencing discrimination in the past 12 months, and more than half suffered hate speech and physical aggression. In July the federal government’s National Commission to Prevent Discrimination wrote a letter condemning the Roman Catholic diocese of Mexicali for inciting homophobia by calling for anti-LGTBI protests.²⁷

[20] LGBT+ people have strong legal protections, but they are not uniformly enforced.²⁸

[21] A Response to Information Request (RIR) on the situation of sexual and gender minorities finds that according to sources, machismo is still embedded in Mexican culture, which increases homophobia and discrimination against sexual minorities.²⁹

[22] Sources indicate that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity.³⁰

[23] A Response to Information Request (RIR) on the situation of sexual minorities including in Mexico City states as follows: The website of the Attorney General’s Office (Procuraduria General de la Republica, PGR) cites the President of the National Council for the Prevention of Discrimination (Consejo Nacional para Prevenir y Eliminar la Discriminación, CONAPRED) as stating that in Mexico, [translation] “discrimination on the basis of sexual orientation and gender identity continues to be a structural phenomenon with extensive social roots”. In correspondence with the Research Directorate, a representative from the Executive Commission of Attention to Victims (Comisión Ejecutiva de Atención a Victimas – CEAV), a federal agency that supports those who have been victims of a federal crime or whose human rights have been violated (Mexico n.d.a), stated that crimes against sexual minorities are [translation] “constant … and in many cases are motivated by prejudices”. Sources indicate that despite an increase in public tolerance of sexual minorities, discrimination against sexual minorities was prevalent.³¹

[24] Agencia EFE cites LGBT organizations as stating that [translation] “‘persistent homophobia has been promoted in large part by members of the Catholic Church”.³²

[25] In an article dated May 15, 2020, in Reuters, titled “Mexico sees deadliest year for LGBT people in five years,”³³ states that in 2019, 117 members of the LGBT community were killed which is a one third increase from 2018 and the highest since 2015.³⁴ The article further states that the victims were found handcuffed, stabbed repeatedly, and in public places.³⁵

[26] The Inter-American Commission on Human Rights (IACHR), an autonomous organ of the Organization of American States that promotes and protects human rights in the American hemisphere describes in a November 2015 report on violence against LGBT persons in the Americas, among other states, Mexico.³⁶ For instance, same-sex couples showing public displays of affection are also a frequent target of police abuse and arbitrary detention by state agents – often with excessive use of force or verbal abuse- because of what is considered ‘immoral behavior’ in public spaces.³⁷

[27] Counsel’s documentary evidence package highlights numerous incidents of murder committed upon innocent members of the LGBT community solely motivated by society’s homophobic attitudes.

[28] Several articles in counsel’s documentary package find as follows:

On April 8, 2019, three young gay men were violently beaten for defending themselves against homophobic insults uttered by their aggressors in Guadalajara.³⁸ One of the young men suffered traumatic brain injury.³⁹

On February 5, 2019, a primary school teacher, who worked in Puebla, was found stabbed to death in his home for being gay.⁴⁰ His close friends described him as a committed and sensitive person.⁴¹ In addition to teaching, he was a dance coach, a costumer for a youth group who was dedicated to humanitarian efforts and charity causes for children in Puebla.⁴²

On July 26, 2018, a gay pageant winner was tortured and assassinated in Veracruz.⁴³ The media report indicates that the gay queen was found half nude with signs of torture wearing a barbed-wire necklace.⁴⁴

On June 19, 2018, three LGBT activists were murdered after being kidnapped from a bar in a popular tourist spot Taxco which is between Mexico City and Chilpancingo.⁴⁵ Images from the local press suggest that the men were shot in the back of their heads and tortured before they were killed.⁴⁶

[29] Sources indicate that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity.⁴⁷

[30] On the issue of education, sources indicate that “sexual minority students reported discrimination and harassment based on their gender identity or sexual orientation at school and that the use of homophobic slurs in school is common.”⁴⁸

[31] This is similar to the experiences of the AC, XXXX who was verbally abused, bullied, and physically assaulted for being gay. In addition, XXXX experience of being detained by the police overnight for a kissing his friend XXXX is corroborated in the media reports.⁴⁹

[32] The National Documentation Package (NDP) for Mexico states that,

In 2013, the state of Nuevo Le6n passed the Law to Prevent, Address and Eradicate Discrimination and Harassment and Violence in Schools. However, the representative from Fundaci6n Trans Amor noted that educational institutions have refused to enforce it. In 2019, Desastre, a Mexican news website on LGBTI issues, reported a case of two lesbian students facing harassment and physical aggression at a University in Nuevo León, wherein the school responded by suspending the two victims. ⁵⁰ [footnotes omitted]

[33] The NDP further sates,

According to the national study on LGBTI discrimination in the workplace by CEAV [Comisi6n Ejecutiva de Atenci6n a Victimas], and Fundaci6n Arcoiris [Fundaci6n Arcoiris por el Respeto a la Diversidad Sexual], which was completed by 3,451 respondents across the country, 30 percent of respondents reported that being LGBTI was an obstacle to employment occasionally, 21 percent said frequently, and 10 percent said always, while 30 percent estimated that it was never an obstacle. The report states that some employers ask job candidates questions about sexual orientation, pregnancy, and HIV status.⁵¹ [footnotes omitted]

…

Other sources indicate that sexual minorities experience discrimination in the workplace …… “many” LGBTI people hide their sexual orientation or gender identity at work out of fear that it will have a negative impact on their career.⁵² [footnotes omitted]

…

In the 2018 national study on discrimination of LGBTI people in the workplace by CEAV and Fundación Arcoiris, 43 percent of respondents reported being harassed, bullied or discriminated against in the workplace….⁵³ [footnotes omitted]

…

For respondents who disclosed their gender identity to their boss, 66 percent reported “total support” and 25 percent reported “rejection.”⁵⁴ [footnotes omitted]

[34] Sources indicate “that sexual minorities reported experiences of discrimination related to their gender identity or sexual orientation when accessing medical services.”⁵⁵

[35] Accordingly, the panel finds that the PC is at risk of persecution due to his membership in a particular social group, a bisexual. The AC is at risk of persecution due to his membership in a particular social group, a gay man.

Cartel Jalisco Nueva Generación (CJNG)

[36] The US Department of State (DOS) Mexico Country Report on Human Rights 2020 states as follows:

Impunity and extremely low rates of prosecution remained a problem for all crimes, including human rights abuses. The government’s federal statistics agency estimated 94 percent of crimes were either unreported or not investigated. There were reports of some government agents who were complicit with international organized criminal gangs, and there were low prosecution and conviction rates in these abuses.⁵⁶

Organized criminal elements, including local and transnational gangs, and narcotics traffickers, were significant perpetrators of violent crimes and committed acts of homicide, torture, kidnapping, extortion, human trafficking, bribery, intimidation, and other threats, resulting in high levels of violence, particularly targeting vulnerable groups. The government investigated and prosecuted some of these crimes, but the vast majority remained in impunity. ⁵⁷

[37] The current NDP highlights the use of family members by cartels to settle scores or silence individuals. This is relevant to the claimants’ fear because of XXXX father who commenced his links with the CJNG during his career as a XXXX Item 7.13 indicates as follows:

Meanwhile, the fact that Coronel was now viewed as a traitor by his former associates in the Beltnin Leyva family, led to the murder of his 16-year-old son, Alejandro, in April 2010.⁵⁸

The CJNG is also believed to be responsible for serious atrocities, including the rape and murder of a rival’s alleged 10-year-old daughter in 2013, and the filmed murder of a man and his young son, killed by detonating explosives strapped to their bodies.⁵⁹

Building further enmity between the CJNG and Sinaloa, Ivan and Jesus Alfredo Guzman, the youngest sons of “El Chapo” Guzman were kidnapped when they ventured into CJNG’s Jalisco turf in August 2016.⁶⁰

[38] While NDP item 7.12 states:

In August 2016, two of the sons of Sinaloa Cartel leader, Joaquin Guzman Loera, alias “El Chapo,” were briefly kidnapped by the CJNG.⁶¹

[39] The evidence establishes that cartels routinely use family members as a weapon and tool against those they wish to harm and intimidate, as a way to punish what cartels view as noncompliance or defiance.⁶²

[40] Accordingly, the panel finds that the claimants also face a serious risk of persecution due to their membership in a particular social group, family of corrupt XXXX XXXX. Thus, the claimants have established the objective basis for their well-founded fear of persecution.

STATE PROTECTION

[41] There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.⁶³

[42] A Response to Information Request indicates that in in 2015, Mexico’s Supreme Court (Suprema Corte de Justicia de la Naci6n, SCJN) “issued a ruling that bans on same-sex marriage were unconstitutional.”⁶⁴

[43] According to sources, machismo is still embedded in Mexican culture, which increases homophobia and discrimination against sexual minorities …. Sources state that in smaller towns and rural areas, there is less acceptance than in cities.⁶⁵

[44] With regards to societal attitudes in Mexico,

Diario de Yucatan, a newspaper based in Yucatan, reported in May 2019 that a couple was denied service at a restaurant in Monterrey for being gay; according to the source, the couple entered the restaurant holding hands and were told to leave because it is a “family environment.”⁶⁶

…

Sources indicate that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity.⁶⁷

[45] The 2021 Freedom in the World report for Mexico states that,

Mexico’s justice system is plagued by delays, unpredictability, and corruption, which often lead to impunity for perpetrators of crimes.⁶⁸

Widespread bribery, limited capacity, and weak coordination undermine the lower courts’ and law enforcement’s integrity. According to a December 2020 government report, the vast majority of crimes committed in 2019 went unreported, largely because underpaid police were viewed as either inept or in league with criminals. When investigations were conducted, only a tiny handful of crimes ended in convictions.⁶⁹

Mexicans are subject to the threat of violence at the hands of multiple actors, including individual criminals, criminal gangs that operate with impunity, and police officers who are often susceptible to bribery. A missing-persons registry which continues to grow despite increased government efforts in recent years reflects an epidemic of enforced disappearances. Mexicans in police or military custody are at risk of torture by the authorities and must also navigate a prison system that respects neither due process nor physical safety.⁷⁰

[46] In the NDP for Mexico,

Sources state that sexual minorities have reported cases of violence or aggression by the police and of being detained for their LGBT status…. According to a report on discrimination of LGBTI people regarding access to justice and security by the CEAV and Fundación Arcoiris, 31 percent of transgender women respondents and 15 percent of homosexuals said they had been detained because of their LGBTI status.⁷¹ [footnotes omitted]

…

According to sources, the government does not adequately investigate crimes against sexual minorities.⁷²

The report on discrimination against LGBTI people regarding access to justice and security notes that “the high percentage of people who don’t report the aggressions or crimes is alarming,” and indicates that the two main reasons for not reporting are mistrust and alleged inaction of the authorities.⁷³

[47] The claimants emphasized that despite the ruling by Mexico’s Supreme Court, in 2015, progress has been slow. They testified that the reality the LGBT people face daily are primarily a homophobic society accompanied by a homophobic and corrupt police force.

[48] The NDP⁷⁴ and the documents submitted by the claimant⁷⁵ make clear that there is widespread discrimination against the LGBTI community, and the state (police) is complicit in the hate crimes perpetrated against members of the LGBTQ community. The documentary evidence highlights the lack of the availability of effective protection for members of the LGBT population. It is evident that state protection is not forthcoming for the claimants due to their sexual orientation.

[49] In these circumstances, it is clear and convincing evidence that the state is unable or unwilling to protect the claimant. Accordingly, the panel finds that the claimants have met their burden of proof, on a balance of probabilities, and that the presumption of state protection has been rebutted.

[50] Given the corruption among police officers, and the government of Mexico, the PC testified that protection would not be forthcoming. XXXX testified that his father was co- operating with the CJNG corrupt practices. Accordingly, these criminal gangs are able to exert power and control among the complicit security forces. Thus, state protection is an illusion.

[51] Objective documentary evidence states that, “[s]ources report that the various police forces in Mexico at the municipal and state level lack human and material resources in order to properly investigate crimes committed in their jurisdiction.”⁷⁶

According to National Survey on Victimization and Perception of Public Security (Encuesta Nacional de Victimizaci6n y Percepci6n sobre Seguridad Publica) the ENVIPE 2019, 93.2 percent of all crimes committed were either not reported or not investigated. The same source lists the following reasons given by respondents for not reporting a crime:

63.2 percent blamed the police, giving the following reasons: reporting a crime was a waste of time, lack of trust in the authorities, difficulties and length of the process, the authorities’ hostile attitude, or the fear of being victims of extorsion.
36.2 percent of victims gave other reasons to not report a crime, such as fearing the aggressor, the crime being not important, or lacking proof.

Regarding trust in law enforcement institutions, in 2019, 55.2 percent of the respondents thought that the federal police was corrupt, while 60.6 percent had the same perception of the Attorney General’s Office, 64.1 percent of the state police, 65.5 percent of the state Attorney General, 67.9 percent of the municipal police and 68.4 percent of the judges.⁷⁷ [footnotes omitted]

…

The CJNG has proven itself ready to challenge the government directly. CJNG forces have ambushed police killing more than 15, targeted federal police in ambushes in which five died, and even downed a Mexican military helicopter in a direct confrontation.⁷⁸

[52] The US Department of State (DOS) Mexico Country Report on Human Rights 2020 states as follows:

Significant human rights issues included: reports of the involvement by police, military, and other government officials and illegal armed groups in unlawful or arbitrary killings and forced disappearance; torture by security forces; harsh and life-threatening prison conditions in some prisons; arbitrary arrest and lengthy pretrial detention; violence against journalists and human rights defenders; serious acts of corruption; impunity for violence against women; violence targeting persons with disabilities and lesbian, gay, bisexual, transgender, and intersex persons; and the existence of the worst forms of child labor.⁷⁹

[53] The Jalisco Cartel New Generation (Cartel Jalisco Nueva Generación – CJNG) is a criminal group that has evolved as a result of killings, captures and rifts in older cartels. It is known for its aggressive use of violence and its public relations campaigns. Despite the capture of certain top leaders, it is now Mexico’s foremost criminal threat and appears set to continue expanding.⁸⁰

[54] In April 2015, the CJNG killed 15 Mexican police officers during an ambush in Jalisco state, one of the single deadliest attacks on security forces in recent Mexican history. The group was also blamed for an attack in March 2015 that killed five federal police. Additionally, Mexican officials have previously indicated that the group possesses highly sophisticated armament, including machine guns and grenade launchers were used to conduct the March 2015 attack. In May 2015, the group continued its deadly streak, shooting down a military helicopter on May 1 and launching a wave of violence across Jalisco.⁸¹

[55] According to an Amnesty International report 2020/2021, titled Mexico State of the World’s Human Rights finds that, “[e]nforced disappearances by state agents and disappearances committed by non-state actors continued to be a concern; those responsible enjoyed almost total impunity.”⁸²

[56] Mexico. World Report 2021: Events of 2020 indicates:

The criminal justice system routinely fails to provide justice to victims of violent crimes and human rights violations. Only 1.3 percent of crimes committed in Mexico are solved, the nongovernmental group Impunity Zero reports. Causes of failure include corruption, inadequate training and resources, and complicity of prosecutors and public defenders with criminals and other abusive officials. A 2018 reform intended to give prosecutors increased independence has not been properly implemented, local human rights and rule-of-law groups report.⁸³

…

However, prosecutors and police neglect to take even basic investigative steps to identify those responsible for enforced disappearances, often telling families of the missing to investigate on their own. The CNB reported that over 7,000 people disappeared in 2019. That year, the Attorney General’s Office opened only 351 investigations into disappearances and prosecuted only 2.⁸⁴

[57] Bertelsmann Stiftung’s Transformation Index (BTI) 2020, indicates that,

At the state level, the judiciary is totally bound to the local executives. All the governors that have been accused of fraud and corruption have been able to escape trial. Furthermore, there have been very few cases where corruption by a party, union, Congress leader or functionary is brought to justice, despite rampant corruption. ⁸⁵

…

The situation has worsened dramatically in those places where the drugs war is intense. The situation has been aggravated by the number of people in those regions that have been disappeared. We do not know if they were abducted by criminal gangs, the army or the police. The most recent estimate is that 37,000 people have been disappeared.

As a consequence of impunity and the fact that official forces are in many cases involved in criminal acts, people who are victims of crime rarely report the crime to the police. People are afraid that as the police may be involved, they will be victimized again or because they feel it is useless. 97% of crimes go unsolved and thus unpunished.⁸⁶

[58] The report further indicates that, “[h]uman rights advocates have consistently expressed concern about a lack of accountability for rights abuses committed by members of the military, including torture, forced disappearances, and extrajudicial executions.”⁸⁷

[59] Counsel’s country condition package highlights a media report which indicates an entire police department in Mexico’s state of Chihuahua was arrested due to corruption.⁸⁸

[60] The panel finds that the claimants fear persecution or serious harm at the hands of organized criminal group, CJNG. Therefore, based on the objective and current documentary evidence,⁸⁹ the claimants cannot avail themselves of the protection of the authorities. The security forces are complicit.

[61] The National Documentation Package (NDP) for Mexico⁹⁰ and the documents submitted by the claimant⁹¹ make clear that the state is ineffective and in these particular circumstances, there is clear and convincing evidence that the state is unable or unwilling to protect the claimants. Accordingly, the panel finds that the claimants have met the burden of proof, on a balance of probabilities, and the presumption of state protection has been rebutted.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[62] The Federal Court of Appeal established a two-part test for assessing an IFA in Rasaratnam and Thirunavukkarasu: As per Rasaratnam,

(1) “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”⁹² and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.

(2) Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claim, for him to seek refuge there.⁹³

[63] The claimants bear the burden of proof to demonstrate that they would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment⁹⁴ in all of Mexico.

Sexual Orientation

[64] The claimants faced verbal abuse throughout their youth at school and within their community due to entrenched homophobic attitudes. The claimants testified that given the homophobic attitude of Mexican society, reinforced by the Catholic church, the police, and the state authorities, they would not be able to live safely and openly as a bisexual and gay couple in Mexico. The claimants testified that they intend to spend their future together and they have taken the preliminary steps towards arranging their marriage in Canada.

[65] The AC testified that. as a XXXX XXXX he has travelled to a variety of regions within Mexico. He stated that the treatment of gay men and the homophobic attitudes prevailed.

[66] The objective and reliable documentary evidence from a variety of reputable and current sources indicates that a viable internal flight alternative is unavailable for the claimants, a same sex couple.⁹⁵

[67] Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout Mexico.

Jalisco New Generation Cartel (CJNG)

[68] Documentary evidence indicates that the cartel has expanded rapidly, and the CJNG now has some sort of presence in every part of Mexico, except Sinaloa and the Golden Triangle of heroin production. ⁹⁶

[69] On the issue of the geographic spread of the CJNG in Mexico, the documentary evidence indicates that there is no greater evidence to support the notion of the CJNG as highly resilient and powerful organization than to chronicle its rapid geographic spread throughout Mexico. In a relatively short rise from 2010 to early 2018, the CJNG developed a documented presence in 24 of 32 Mexican states; when including alliances and small cells the count includes all 32 Mexican states.⁹⁷

[70] A Response to Information Request states that according to the Assistant Professor, cartels use family networks and private investigators to track people, as well as property records in the US and Mexico and placing GPS trackers on cars.⁹⁸

…

The Assistant Professor stated that in order to extend their influence beyond their areas of operation, cartels rely on the “representation” they have in other areas.⁹⁹ Reports that the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generaci6n, CJNG), a splinter group of the Sinaloa Cartel, has developed “strategic alliances” with groups in other regions, including Los Zetas and Gulf Cartel splinter groups along the Gulf Coast.¹⁰⁰

[71] The claimants stated that the police are complicit and would enable the cartel to find them.

[72] The RIR further finds that the Assistant Professor stated that a large debt or a personal vendetta could motivate a gang to track someone outside their area, and that gangs can use “corrupt law enforcement agents” to obtain information about people they pursue.¹⁰¹

[73] Documentary evidence indicates on the CJNG cartel indicates as follows:

Area of influence: present in 27 Mexican states and “asserts control over the ports of Veracruz, Mazanillo, and Lazaro Cardenas.” It has a presence in every part of the country, and is the “dominant criminal actor in Jalisco, Nayarit and Colima, at the port of Lazaro Cardenas in Michoacan, in the eastern state of Veracruz and in the oil-rich central region of Guanajuato, Puebla, Querétaro and Hidalgo”

Alliances: Tijuana Cartel Nueva Generation, a faction of the Juarez Cartel.¹⁰²

[74] Accordingly, the objective documentary evidence before the panel indicates that there is a serious possibility of persecution throughout Mexico from the CJNG. As a result, there is no viable IFA where the claimants could reside without a risk to their lives or their safety.

[75] Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout Mexico. Thus, given the particular circumstances of the claimants, a same-sex couple and having family ties to XXXX father, a former XXXX XXXX having worked in alliance with the CJNG, the claimants are known to the organized criminal cartel and their corrupt counterparts within the police force, thus, an internal flight alternative is unavailable.

CONCLUSION

[76] The claimants, XXXX XXXX XXXX XXXX, and his partner XXXX XXXX XXXX XXXX have established that there is a reasonable chance of persecution, based on their sexual orientation if they were to return to their country of nationality, Mexico, today. They have also established that there is a reasonable chance of persecution due to their membership in a particular social group, family of corrupt XXXX, if they were to return to Mexico today.

[77] Therefore, the panel finds the claimants to be Convention refugees.

(signed) S. Seevaratnam

October 27, 2021

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, sections 96 and 97(1).

2 Exhibit 2, Basis of Claim (BOC) Form -TCl-04681, Narrative, at para. 17.

3 Chairperson ‘s Guideline 9: Proceedings Before the IRB 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 Exhibit2, BOC Form -TCl-04681.

5 Exhibit 3, Basis of Claim (BOC) Form – TCl-04721.

6 Exhibit 2, BOC Form -TCl-04681, Narrative, at para. 8.

7 Ibid., at para.9.

8 Ibid., at para. 2.

9 Ibid., at para. l 1.

10 Ibid., at para.12.

11 Ibid., at para.16.

12 Ibid.

13 Ibid., at para.13.

14 Ibid., at para.3.

15 Ibid.

16 Exhibit 3, BOC Form – TCl-04721, Narrative, at para.5.

17 Ibid., at para.6.

18 Exhibit 2, BOC Form -TCl-04681, Narrative., at para.18.

19 Ibid., at paras. 18-19.

20 Exhibit 1, Claim referral information from CBSA/IRCC.

21 Exhibit 5, ICAC-Scheduling ready package dated June 8, 2021.

22 Maldonado, Pedro Enrique Juarez v. MCI (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).

23 Exhibit 2, BOC, received March 8, 2019.

24 Exhibit 7, Disclosure received October 21, 2021, Package 1, Personal Evidence, 3 items 7 pages, items 1-2.

25 Exhibit 10, Disclosure received October 21, 2021, Package 4, photos of the claimants in Mexico and Canada, 23 pages.

26 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages.

27 Exhibit 4, National Documentation Package (NDP) for Mexico (September 29, 2021), item 2.1., s. 6 – Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity.

28 Ibid., item 2.8, s.F4.

29 Ibid., item 6.2, s.2.1

30 Ibid.

31 Ibid., item 6.4, s.2.

32 Ibid.

33 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages., item 13, at p. 44.

34 Ibid.

35 Ibid.

36 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.1.

37 Ibid., at p.20.

38 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages., item 15, at p. 56.

39 Ibid.

40 Ibid., item 17, at p. 62.

41 Ibid., at p. 30.

42 Ibid.

43 Ibid., item 18, at p. 64.

44 Ibid.

45 Ibid., item 19, at p. 66.

46 Ibid.

47 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.2, s. 2.1.

48 Ibid.

49 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages, item 11, at p. 41.

50 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.2., s. 2.1.

51 Ibid., item 6.2, s. 3.

52 Ibid.

53 Ibid.

54 Ibid.

55 Ibid., S. 4.

56 Exhibit 4, NDP for Mexico (September 29, 2021), item 2.1. s. Executive Summary.

57 Ibid.

58 Ibid., item 7.13, at p.5.

59 Ibid., at p.13.

60 Ibid., at p.17.

61 Ibid., at item 7.12.

62 Ibid.

63 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

64 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.2, s. 1.2.

65 Ibid., S. 2.1.

66 Ibid.

67 Ibid.

68 Ibid., item 2.8, s. F2

69 Ibid.

70 Ibid., s. F3.

71 Ibid, item 6.2, s. 6.

72 Ibid., S. 7.

73 Ibid.

74 Exhibit 4, NDP for Mexico (September 29, 2021).

75 Exhibits 6, Country Conditions, received October 12, 2021, 21 items, 117 pages.

76 Exhibit 4, NDP for Mexico (September 29, 2021), item 7.18, s. 3.1.

77 Ibid., S. 3.3.

78 Ibid., item 7.17, s. State Confrontation.

79 Ibid. item 2.1, s. Executive Summary.

80 Ibid., item 7.12 at p. 1.

81 Ibid., at p. 2.

82 Ibid., item 2.2, s. Enforced Disappearances.

83 Ibid., item 2.3, s. Criminal Justice System.

84 Ibid., s. Disappearances.

85 Ibid., item 1.10, s. 3.

86 Ibid.

87 Ibid., s. F.3.

88 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages, item 7, at p.30.

89 Exhibit 4, NDP for Mexico (September 29, 2021).

90 Ibid.

91 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages.

92 Rasaratnam, Sivaganthan v. MEI (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported:

Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.

93 Thirunavukkarasu, Sathiyanathan v. MEI (F.C.A., no. A-81-92), Heald, Linden, Rolland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

94 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, section 97(1) (b) (ii).

95 Exhibit 4, NDP for Mexico (September 29, 2021); Exhibit 6, Country Conditions, received October 12, 2021, 21

items, 117 pages.

96 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.12., Geography.

97 Ibid., item 7.17., at p.27.

98 Ibid., item 7.15, s. 4.2.

99 Ibid.

100 Ibid.

101 Ibid.

102 Ibid., item 7.18, s. 2.1.2.

All Countries Nigeria

2021 RLLR 52

Citation: 2021 RLLR 52
Tribunal: Refugee Protection Division
Date of Decision: June 18, 2021
Panel: S. Charow
Counsel for the Claimant(s): Udo Mandy Nwobu
Country: Nigeria
RPD Number: TC0-06416
Associated RPD Number(s): TC0-06460 / TC0-06477 / TC0-06478
TC0-06479
ATIP Number: A-2022-01594
ATIP Pages: N/A

REASONS FOR DECISION

[1] XXXX XXXX (“the principal claimant”), his wife XXXX XXXX (“the associated claimant”), and their children, XXXX XXXX, XXXX XXXX, and XXXX XXXX (“the minor claimants”), citizens of Nigeria, claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“the IRPA”).¹

[2] The claims were heard jointly as required by Rule 55 (1) of the Refugee Protection Division Rules. The principal claimant was appointed as a designated representative for the minor claimants. The minor claimants relied on the testimony of the principal claimant and the associated claimant.

[3] In making this decision, I have considered the claimants’ testimony, tendered evidence, and counsel’s written submissions.² I have also considered and applied the Chairperson’s guidelines on both sexual orientation and gender.³

ALLEGATIONS

[4] The claimants’ allegations can be found in their Basis of Claim forms (“BOCs”)⁴ and their amended BOC.⁵In short, the claimants allege that the principal claimant is a bisexual man who was caught with his same-sex partner. He fled the city. After he left, the principal claimant was sought by the police. The associated claimant and minor claimants fear cleansing rituals. They allege that there is no state protection available to them, nor any viable internal flight alternatives.

DETERMINATION

[5] I find the principal claimant to be a Convention refugee. I find that the associated claimant and the minor claimants are neither Convention refugees nor persons in need of protection as they have a viable internal flight alternative (“IFA”) in Port Harcourt. My reasons follow.

ANALYSIS

Identity and Country of Reference Are Established

[6] The claimants’ personal identities and country of reference have been established, on a balance of probabilities, by their Nigerian passports.⁶

The Claimants’ Credibility Was Mixed

[7] I find, overall, the claimants’ credibility was mixed. I noted substantial and significant omissions of key events, all of which tie back to the core of the claim regarding the principal claimant’s sexual orientation. When put to the claimants, these omissions were not adequately explained and each one negatively impacts the claimants’ credibility.

[8] I further noted one considerable inconsistency, regarding what happened when the principal claimant’s sexual orientation was revealed to his community. The principal claimant’s testimony was inconsistent with the associated claimant’s testimony. This inconsistency was also inadequately explained and again negatively impacts the claimants’ general credibility.

[9] Lastly, I note that the claimants were in the United States for a lengthy period of time without seeking asylum there. I put this failure to claim asylum to the claimants and was not satisfied that their reply adequately explained the issue. This also negatively impacts their overall credibility.

[10] I balance this with other detailed, spontaneous, and forthright lines of testimony, including how the principal claimant realized his sexual orientation and about his same-sex partners. The principal claimant’s testimony about how his sexual orientation was revealed was also consistent and rang true. I further note some supporting evidence to establish the principal claimant’s sexual orientation and the subsequent risk to all the claimants, specifically affidavits from the associated claimant’s father, a friend of the principal claimant, their neighbour, and the principal claimant’s sister.⁷ These affidavits have no clear issues presenting and are consistent with the claimants’ allegations. I further note the presence of two police invitation letters, inviting the principal claimant to the police station to discuss his sexual orientation.⁸

[11] In short, although I do find the claimants’ credibility generally tarnished, I still have enough credible evidence before me to find that the principal claimant has established that he is a bisexual man and would be at risk of persecution should he return to Nigeria. I find that the principal claimant has established his subjective fear.

Nexus Is Established for The Principal Claimant

[12] I find that there is a link between what the principal claimant fears and one of the five Convention grounds due to his membership in a particular social group as a bisexual man. His claim has therefore been assessed under section 96 of the IRPA.

An Objective Basis Has Been Established for the Principal Claimant

[13] I further find that the principal claimant has an objective basis for his fears, as per the documented conditions for Nigeria. I note that Nigerian legislation effectively all forms of activity supporting or promoting lesbian, gay, bisexual, transgender, and intersex rights. According to the law, anyone convicted of entering into a same-sex marriage or civil union may be sentenced to up to 14 years’ imprisonment. The law also criminalizes the public show of same-sex “amorous affection.”⁹ Furthermore, there are many incidences of mob violence against LGTBTQ individuals. Law enforcement agents consider the vigilantes’ attacks as an intervention to ease their work to enforce peace in the community; therefore, the victims are the ones who get arrested on the basis of homosexuality and face more stigma, discrimination, unlawful arrest, and detention, extortion and rape.¹⁰

[14] As both subjective fear and objective basis has been established for the principal claimant, I find that he has a well-founded fear of persecution.

There Is No State Protection or Internal Flight Alternative Available for The Principal Claimant

[15] As per the above analysis, same-sex sexual activity is criminalized throughout Nigeria and homophobic violence continues with impunity. I therefore find that there is clear and convincing evidence that state protection would not be available to the principal claimant.

[16] Likewise, I find that there is nowhere in Nigeria where the principal claimant would not face a serious possibility of persecution due to his sexual orientation. As the test for an IFA fails on the first prong, I find there is no viable IFA for the principal claimant.

The Remaining Claimants Have A Viable IFA In Port Harcourt

[17] As I have accepted that the principal claimant is a bisexual man, I also accept that there is a corresponding danger for his wife and children (the remaining claimants) as alleged. However, I must determine if there is another place in Nigeria that it is both safe and reasonable for the remaining claimants.

[18] In short, to determine whether a viable IFA exists, I must consider a two-prong test.¹¹ I must be satisfied that, on a balance of probabilities, there is no serious possibility of the claimants being persecuted in the part of the country in which I find an IFA exists. Furthermore, conditions in that proposed part of the country must be such that it would not be unreasonable, in all circumstances, including those particular to the claimants, for them to seek refuge there.

[19] As the claimants were originally from Lagos, I proposed IFA locations of Abuja and Port Harcourt to the claimants. I find that, on a balance of probabilities, the remaining claimants do not face a serious possibility of persecution or risk of harm under section 97 of the IRPA in Port Harcourt and it is not unreasonable for the claimants to relocate to Port Harcourt.

The Remaining Claimants Would Be Safe in Port Harcourt

[20] The associated claimant testified that it would not be safe in Port Harcourt because if people by there happen to find out about the principal claimant’s sexual orientation or what had happened to the claimants by chance, they will start “warring” against the remaining claimants. When asked how people in Port Harcourt would find out about what had happened, the associated claimant replied that her calls would be traceable.

[21] The onus of disproving a proposed IFA falls to the claimants. In this case, I find that the claimants’ allegations about the risk in Port Harcourt do not disprove the IFA on the first prong of the test.

[22] The associated claimant testified that the people in Port Harcourt could find out about what had happened to the claimants “by chance”. To be clear, I do not draw a negative credibility inference from this allegation – I accept that the claimants believe this. However, saying that they may be discovered by chance – without a further explanation as to how regular people in Port Harcourt (or the principal claimant’s family in Lagos) may discover them – is entirely speculative. There has been no evidence tendered to establish this and therefore it does not rebut this prong of the test for an IFA.

[23] I turn to the second argument made, specifically that the claimants could be traced through the associated claimant’s telephone. I find that this also does not rebut this prong of the IFA. This is because there is no evidence to establish that the people the claimants alleged to fear could access any telephone records.

[24] I have accepted that the claimants fear the Nigeria Police in Lagos and I must consider whether the remaining claimants would face any risk from them in Port Harcourt. However, there is no confirmation that there is any implemented communication system between police forces or other authorities in Nigeria that would be able to track the claimants. Although I note the presence of a national database, there is no indication that it has been fully implemented. The available documentary evidence states that is limited to nominal data, stolen and lost travel documents, and stolen motor vehicles.¹²I find, on a balance of probabilities, that the Nigeria Police would not be able to track the remaining claimants should they relocate to Port Harcourt.

It Would Be Reasonable for The Remaining Claimants To Relocate Ta Port Harcourt

[25] The claimants allege that they would not be able to relocate to Port Harcourt because the associated claimant could not get a job there or open another business because she doesn’t know anyone there and it is hard to get jobs. She testified that the children could not go to school there because they don’t know anyone there and can’t live there. She also stated that there would be a language barrier in Port Harcourt.

[26] In considering this IFA, I am mindful that the Federal Court of Appeal has set a very high threshold for the unreasonableness prong of the IFA test. Indeed, “it requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant.”¹³ The Federal Court of Appeal has also been clear that the personal circumstances of a claimant must be central to the reasonableness analysis.¹⁴ The question to be answered on the second prong of the test is whether expecting the claimant to relocate to the proposed IFA location would be “unduly harsh.”¹⁵

[27] I further note that I must consider whether the principal claimant would return to Nigeria with the rest of his family, even though his claim is to be accepted. I find that it has not been established that he will – there has been no corroborating evidence nor testimony tendered to support that speculation. I therefore assess the reasonableness of the proposed IFA for only the remaining claimants, as a female-headed household with four young children (the three minor claimants and one Canadian-born child, who although is not a claimant, must still be considered with regards to their impact on the IFA for the remaining claimants).

[28] I have also considered the Chairperson’s Guidelines, as cited above, especially as they relate to the claimants’ ability to travel safely to the IFA and to stay there without facing undue hardship.

[29] For the reasons as outlined below, in all the circumstances, including those particular to the remaining claimants, conditions in Port Harcourt are such that it would not be unreasonable for the claimants to seek refuge there.

[30] According to the UK Home Office report on internal relocation in Nigeria, generally, a person fearing a non-state actor is likely to be able to relocate to another part of Nigeria depending on the nature of the threat from the non-state agent(s) and the individual circumstances of the person.¹⁶ Although there is a fear of the police, I have found that the police could not locate the remaining claimants. I also note that Nigerians have the right to and can generally freely travel around their country.¹⁷ Port Harcourt has an airport as well.¹⁸

[31] Although relocation in Port Harcourt could be “relatively difficult” for single women, especially if they have a low level of education or do not benefit from financial support,¹⁹ I note that this is not the case for the associated claimant. The associated claimant testified she has a XXXX XXXX XXXX XXXX, which is much higher than the national average for education in Nigeria.²⁰ She has XXXX XXXX XXXX XXXX XXXX and has XXXX XXXX XXXX XXXX. In Canada, she has upgraded skills and is currently completing a program to XXXX XXXX all transferable skills. I find that these are all factors that will facilitate the remaining claimant’s relocation to Port Harcourt.

[32] I do note that country document evidence indicates that it is difficult to find work in the formal sector but there are opportunities to work in the informal sector such as trading,²¹ which would be very similar to the associated claimant’s own work experience.

[33] I further note that among working Nigerians, 57.37 % of women were working full time and 70% of working women were self-employed,²² even though gender inequality is widespread in Nigeria and women tend to find it harder to obtain paid work. However, there is evidence that there is a “withering of cultural restrictions on the perception of women in public affairs” and an “increasing tendency of women to take up economic roles in the family previously reserved for men and to question the myth of the ‘male-as-breadwinner’ in many middle-class and low income families.”²³

[34] Having found it is likely that the associated claimant could obtain suitable employment, I find that it is also likely that the remaining claimants could obtain suitable housing. In terms of housing, I also accept that affordability is not the only issue and that country document evidence “indicates that relocation may present greater challenges for single women who do not have access to a support network.”²⁴ However, despite these challenges, many women do indeed head their own households in Nigeria’s southern states. 14.7% of rural households and 21.8% of urban households are headed by women.²⁵

[35] Female heads of households may encounter discrimination in seeking accommodation and be stigmatized for living alone, especially if they do not have adequate economic resources or male advocates and this may also make them vulnerable to sexual exploitation, as alleged by the claimants. However, an exception to this discrimination may be the case of accommodation offered by formal real estate firms, in which case what matters is the ability to pay and not social norms, gender, or marital status.²⁶

[36] In terms of language in Port Harcourt, in Nigeria, Pidgin English is spoken by most of the population and that this ensures that language is not an obstacle. ²⁷ The remaining claimants speak English.²⁸ I also note that most Nigerian towns and all large cities have quite large migrant communities from other parts of the country.²⁹ Furthermore, the evidence indicates that non-indigenes are entitled to access essential public services, including health care, primary and secondary education; however, societal norms discourage them from attempting to do so.³⁰ I find, on a balance of probabilities, that the minor claimants (and the Canadian-born child if need be) could access education, even if it requires the payment of school fees. There is no indication as well that the claimants could not freely practice their religion, as there are large Christian populations throughout Nigeria.³¹

[37] The claimants have submitted that Port Harcourt would be an unreasonable IFA as there would be no available treatment for the principal claimant’s mental health conditions. But the principal claimant, as outlined above, has not stated that he would return to Nigeria should the remaining claimants return to Nigeria. No evidence has been tendered regarding any of the remaining claimants’ mental health.

[38] I accept that relocation to Port Harcourt may be difficult for the remaining claimants. However, difficult circumstances do not make Port Harcourt an unreasonable IFA location in the context of a refugee claim. While the remaining claimants’ circumstances may be difficult, I cannot find that these conditions will necessarily place the claimants in jeopardy, the high bar set by the existing jurisprudence. These factors alone are not capable of sustaining a refugee claim and nor do they suggest that the claimants’ life would be in jeopardy or at risk of persecution.

CONCLUSION

[39] For the above reasons, I find that the principal claimant is a Convention refugee under section 96 of the IRPA, as he faces a serious possibility of persecution upon return to Nigeria.

[40] His claim is therefore accepted.

[41] As the remaining claimants have an IFA in Port Harcourt that is safe and reasonable in their particular circumstances, I find they do not face a serious possibility of persecution in Nigeria. The finding of an IFA also applies to the IRPA section 97(1) as, on a balance of probabilities, the remaining claimants do not face a danger of torture, or risk to life, or risk of cruel and unusual treatment or punishment. Consequently, the remaining claimants are neither Convention refugees nor persons in need of protection.

[42] Their claims are accordingly denied.

(signed) S. Chow

June 18, 2021

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

2 Exhibit 10, written submissions, received May 25, 2021, entered into evidence June 16, 2021.

3 Chairperson’s Guideline 9: Proceedings Be/ore the IRB 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 and The Chairperson ‘s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Guidelines continued in effect by the Chairperson on June 28, 2002, under ss. 159(l)(h) of the IRPA.

4 Exhibits 2.1-2.5.

5 Exhibit 7.

6 Exhibit 1, referring package from CBSA/IRCC.

7 Exhibit 5, p. 1-8.

8 Exhibit 5, p. 9-20.

9 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 2.1.

10 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 6.1.

11 Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (C.A.); Rasaratnam v. M.E.I., [1992] 1 F.C. 706 (C.A.) at 710.

12 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 10.4.

13 Ranganathan v. Canada (MC]), 2000 CanLII 16789, at para. 14.

14 Rasaratnam v. Canada (MEI), [1992] 1 FC 706, at p. 710.

15 Thirunavukkarasu v. Canada (MEI), 1993 CanLII 3011.

16 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 1.17.

17 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.10.

18 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 1.1.

19 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

20 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 1.4.

21 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 13.1.

22 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

23 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

24 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

25 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

26 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

27 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

28 Exhibits 2.2-2.4, BOCs, question 1g.

29 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 13.1.

30 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at 1.17.

31 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at 1.7.

All Countries India

2021 RLLR 51

Citation: 2021 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: March 10, 2021
Panel: Antoine Collins
Counsel for the Claimant(s): Yasin A. Razak
Country: India
RPD Number: TC0-05774
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1] MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX TC0-05774. Mr. XXXX you claim to be a citizen of India and is claiming refugee protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act. I have considered your testimony and the other evidence in the case and I am ready to render my decision orally.

[2] I find that you are a Convention refugee as you have satisfied the burden of establishing a serious possibility of persecution on a Convention ground in India based on your membership in a particular social group based on your sexual orientation.

[3] In coming to this determination I have considered the Chairpersons Guidelines, guideline 9 proceedings before the IRB involving sexual orientation and gender identity and expression.

[4] I find that there is a nexus between the harm that you fear in India and the Convention ground of a particular social group. Therefore your case will be assessed pursuant to Section 96.

[5] Your allegations are set out in your Basis of Claim form, which can be found at Exhibit 2. In summary, you allege fear of persecution at the hands of the Indian authorities, your family members and particularly your father and the society at large based on your sexual orientation.

[6] I am satisfied that your personal and national identity as a citizen of India has been established on a balance of probabilities by way of your testimony and a true copy of your Indian passport found at Exhibit 1. When a claimant affirms to tell the truth this creates a presumption of truthfulness unless there is evidence to contrary. You testified in a straightforward, spontaneous and unhesitating manner and your answers to my questions that I proposed about the central aspects of your claim were detail and unrehearsed. There were no material inconsistencies in your testimony or contradictions between your testimony and the other evidence that was before me today.

[7] Your testimony was consistent and in content and was chronological. In particular, your testimony about your identity as a gay man was detailed, natural and clear based on your own personal experiences growing up in India in a household of the Orthodox Roman Catholic faith. You testified growing up in India as an only child you tended to stay to yourself because you were shy. Your testimony was that your father did not like the way that you behaved and would scold you because of it. You were able to testify about how unhappy this made you feel growing up. Your testimony was that you had a close relationship with your mother however when asked why you did not provide a support letter from her, you indicated that individuals in the community and your family already thought that your father left her because of you and because of that you did not want to add any more stress and troubles to her life. Given your profile I take no issues with your response.

[8] Your testimony was that growing up you did not know what your sexuality was, however, you were able to express to me when you first started having feelings for the same sex. Your testimony was that it was during your teen years and you were even able to point out a couple of actors from your country who you had a boyhood crush on. You were able to express what the social and religious views were in India regarding same-sex attraction and you testified that you did not accept these views but you kept your feelings to yourself out of fear of not knowing what might happen to you, especially since you already had a strained relationship with your father. You testified that after high school your mother suggested that you attend school abroad as it would make your life easier and you could live freely. As such you made your way to Canada on a student visa.

[9] You’ve also provided spontaneous and straightforward testimony about your activities in Canada as far as your schooling and the renewal of your student visa. Your testimony was that you met your current partner (inaudible) in 2017 when you shared a house with him and five other individuals. Your testimony was that the two of you shared a room and you did have a crush on him but you dared not to tell him because you did not know if he was gay. Your testimony was that because you were roommates you developed a close friendship and you shared the same birthdays. You indicated that in 2019 on your birthdays you shared with him the troubles that you were having back home and that you were gay. He in tum confided in you and told you that he was gay as well and had made a refugee claim.

[10] You testified at that point the two of you started to date. Your testimony was that (inaudible) was your first boyfriend and your first gay experience. You were able to tell me the things that the two of you did together such as walks, going to the movies and what Netflix shows that you both liked to watch, as well as you expressed elements of his personality that drew you to him. What I found compelling was your testimony about when you two are together you are happy and relieved and that now you have someone that you can talk to openly and who is there for you.

[11] In support of your claim, (inaudible) came to testify at your hearing today and his testimony was in line with what you have alleged. You also (inaudible) of photographs which you were able to also talk about and they also collaborate what you have alleged, which can be found at Exhibit 4.

[12] I find that you have established on a balance of probabilities that your sexuality was first brought to your attention as a teenager back in India, number one. Number two, that you never acted on such feelings in India because you were afraid. Number three, while in Canada you started a relationship with (inaudible). And number four, that you do identify as a gay man. I’ve also found on a balance of probabilities that you have established a subjective fear in India due to your sexual orientation.

[13] The objective evidence is consistent with your accounts of fearing persecution in India. In the Supreme Court case of NAVTEJ, Sang Johar versus Union of India Supreme Court case, it determined that Section 377 of the Indian Penal Code which prohibits consensual same-sex relations was unconstitutional and a violation of international human rights obligations which were binding on India. The question addressed in this report a concern that the degree to which these principals have been implemented in society. They concluded that members of the LGBTQ community face discrimination which impedes civil, cultural, economic, political and social rights. In addition they are at a risk of violence. They encounter difficulties from both state actors and members of civil society in assessing such public services as water, sanitation, and transportation.

[14] It is well documented in the National Documentation Package and from the country conditions and several other news articles that your counsel provided, several articles which can be found at Exhibit 5 regarding members of the LGBTQ community that they face discrimination and human rights violation in all aspects of employment including impediments with respect to education, training which is mocked by violence, bullying or harassment. It also notes that they may experience discrimination in seeking employment or lack of job security if they are employed. Harassment and arbitrary discriminatory dismissal have been identified as problems.

[15] Members of the LGBTQ community also face discrimination and verbal or physical assaults when trying to access public spaces by the police or other authorities as well as by members of the public. There are reports of police making selective use of various laws such as begging, public nuisance, sex work or to target and harass them. They can experience problems assessing private property which is open to the public, including shopping mails, restaurants, businesses and hotels. Discrimination can take form of evasive surveillance, charging higher prices, refusal to serve and denial of access.

[16] Item 6.1 of the NDP indicates that there has been a surge of LGBTQ events and activities since September of 2018 legislation of the same-sex relationships. However a BBC report indicates that this does not mean that the public attitude has changed. Although gay pubs exist, patrons are at risk of being attacked in nearby streets after they leave.

[17] Despite decriminalization, sexual minorities continue to experience violence, harassment and widespread social discrimination. One source indicates that members of the LGBT community are at risk for blackmail, rape and sexual violence. Although discrimination based on sexual orientation is prohibited in India, this does not apply to about 90 percent of the employment which is not part of the formal sector. Sexual minorities have a long way to go before their rights are fully respected. Indian laws do not protect against conversion therapy, hate crimes, incitement or discrimination in employment in the non-formal sector.

[18] Reports state that the police use violence, abuse, harassment and threats to arrest and intimidate sexual minorities although police now receive awareness training about LGBT issues after the decriminalization, this document does not include sources which indicate how effective this has been or what changes have taken place with respect to police practices.

[19] I find that the country conditions and the documentation regarding the situation in India regarding sexual minorities coupled with your credible declarations has led me to find that you have established a serious possibility of persecution in India based on your sexual orientation if you are to return to India. Accordingly I find that your fear has an objective basis and is well-founded.

[20] The widespread nature and frequency of the attacks on sexual minorities described in the country conditions clearly and convincingly demonstrates that Indian authorities are either complacent or unable to prevent such events. As such there is a presumption of state protection unless the state is in a condition of complete breakdown. This presumption has been rebutted with clear and convincing evidence. Based on your personal circumstances and the fact that the state is the agent of persecution and the objective country documentation, I find that you have rebutted the presumption of state protection and that state protection would not be reasonably forthcoming or available to you in your particular circumstances.

[21] I’ve also had an opportunity to consider whether there is an Internal Flight Alternative exists for you. The evidence suggests that there is serious possibility of persecution throughout the entire country based on your sexual orientation given the widespread attacks on the LGBT community. As the state is the agent of persecution and the area remains widespread to social discrimination against LGBTQ persons, I find that no IFA is available for you.

[22] Having considered the totality of the evidence, I find that there is a serious possibility that you would face persecution in India based on your sexual orientation. Accordingly I find that you are a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection and therefore I accept your claim.

———- REASONS CONCLUDED ———-

All Countries Kenya

2021 RLLR 50

Citation: 2021 RLLR 50
Tribunal: Refugee Protection Division
Date of Decision: February 3, 2021
Panel: Matthew Weston
Counsel for the Claimant(s): N/A
Country: Kenya
RPD Number: TC0-05375
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1] MEMBER: Okay, so this is the decision in the refugee claim made by XXXX XXXX and the file number is TC0-05375. So, sir, you claim to be a citizen of Kenya and you are claiming refugee protection pursuant to sections 96 and 97(1), the Immigration and Refugee Protection Act.

[2] In rendering my decision, I have considered the Chairperson’s guideline 9 on claims involving sexual orientation, gender identity and expression and for the reasons I follow, I find that you are a convention refugee. Your allegations can be found in your basis of claim form, found in Exhibit 2, but to summarise, you alleged persecution at the hands of state and non-state actors due to your sexual orientation, namely as a gay man.

[3] With respect to your identity, I find that you have established your persona! and national identities on a balance of probabilities and you have done this through your Kenyan passport, a certified true copy of which can be found in Exhibit 1. You also provided me with numerous identity documents both from Canada and from Kenya, but I also relied on your national identity card, which can be found in Exhibit 5 at annex 2.

[4] In terms of your credibility, there are certain aspects of your claim that I found that you have not established on a balance of probabilities. You alleged that you are wanted by the police in Kenya right at this time for having same sex relationship, so you testified that you had a one night stand with a man in Kenya and he sought medical attention and the doctor determined that he had engaged in same sex sexual conduct and the doctor was legally obligated to inform the police. Beyond this, you could not tell me how you were discovered by the police or how you became wanted by the police, you provided a charge sheet, two charge sheets actually, both are found in Exhibit 5 at annex 1. So, the charge sheet lists that you are charged with a natural offenses contrary to section 162 of the penal code. You also provided the same charge sheet for the man that you alleged that you had same sex relationship with. You testified that it was your mother who has given these documents and she is one who sent them to you, you were unable to tell me how your mother obtained the charge sheet for the other man and I don ‘t find it reasonable that your mother would have been given the charge sheet for your co-accused.

[5] I also had issues with the appearance of the charge sheets, as I questioned you on, there was a line going through that cuts off some of the writing, or goes through some of the writing. The stamp in the bottom right of both charge sheets appears to be printed on the page and then on top of that it signed in pen, so based on these concerns, I find that these documents are not credible or trustworthy and I give them no weight in establishing that you are wanted by the authorities in Kenya.

[6] You also provided the original version of an arrest warrant that is found in the same Exhibit in annex as the previous documents, it is Exhibit 5, annex 1. On the arrest warrant, I noted that the writing gets cut off from the side of the page, you testified that it was likely cut off because when making a copy. However, the arrest warrant that was provided to me was the original and it was written in pen, so I did not find it reasonable that the arrest warrants writing would be cut off on the side given the fact that it is original.

[7] The arrest warrants also list you and the man that you alleged that you had same sex relationship with and I don’t find it reasonable that two people who are unrelated would be listed on the same arrest warrant. So, again based on these concerns I find that this is not a credible or trustworthy document and I give it no weight.

[8] Lastly, you provided a post rape care form from the ministry of health, you couldn’t tell me why this was given to your mother or why it was provided, and I indicated to you that the form appears to have been altered in many places and that there are clearly two different forms of ink used, and that the writing in certain areas has been scratched out or whited out throughout the form. For instance the box that indicates the sex of the victim appears to have initially been checked off as female, but has been scratched out and the male box. The box that indicates the victim was a male was then checked off. The form also indicates that the victim who is a male, suffered vaginal injuries, again this is indicated by the check box on the side as well at the bottom there was a diagram for the medical professional to detail the injuries, and again the diagram and the details indicates that there were injuries to the female genitalia. You were unable to provide any sufficient reason as to why this would be the case and so I find that this is not a credible or trustworthy document and give this document no weight as well. As such I find that you have not established that you are wanted by the authorities in Kenya at this time on balance of probabilities.

[9] Despite this, I do find that you have established your sexual orientation on a balance of probabilities. You provided credible testimony that was detailed and spontaneous, you gave credible testimony about when you first noticed that you were attracted to men, and you even detailed your first same sex sexual relationship with another male, you mentioned that this was in high school when you were about the age of 14, you were able to give me spontaneous and very detailed testimony about what attracted you to him, what qualities of his you were attracted to, you also gave very detailed testimony about the struggles that you had regarding accepting and identifying your sexual orientation. I found this to be the most credible of your testimony.

[10] You testified that you often thought about this and you struggled with this for a very long time and you testified that it was a very long process for you to accept that you are a gay. You testified that you are your family’s only son and that this made even harder for you to accept yourself as being gay. You testified that you tried hard to supress these feeling, but you were eventually able to accept who you are. You testified that you opened up to your mother and she to your surprise even she accepted you and continues to love you and care for you as just as much as before.

[11] You testified that this was a great comfort to you and aided you in continuing to accept yourself. Again I find your testimony in this regard to be very credible.

[12] You also provided detailed testimony about some of your other same sex relationships that you had in the past. You provided detailed testimony and supporting documentation to establish one relationship in particular that you had from 2015 until 2018, to corroborate this you provided text messages and photographs, these can be found in Exhibit 5 at annex 4 and 7 respectively.

[13] You also provided text messages from a friend and another former partner which can be found in Exhibit 5 at annex 5 and 6 as well. Overall, I find that your testimony in this regard was consistent with the documentation that you provided and I find that you have established that you were involved in same sex relationships in the past on the balance of probabilities.

[14] You also provided detailed testimony about the struggle that LGBT people face in Kenya as the government does not accept you or grant you the rights guaranteed to all citizens in the constitution. You testified that it is difficulty to live openly and freely in Kenya and you testified that you do fear being arrested by the authorities. Despite my finding that you are not wanted by the police currently, I do find that the objective documentary evidence makes it clear that LGBT people do risk imprisonment if their sexual orientation is discovered.

[15] You also testified credibly about the overall attitude of the Kenyan society towards LGBT people. As a result I find that you have established on a balance of probabilities that you are a gay man and that you faced a serious possibility of persecution and that you have a subjective fear of persecution based on those grounds.

[16] I further find that there is a link between what you fear and one of the 5 convention grounds, specifically due to your membership in a particular social group, namely as a gay man. Therefore, I have assessed your claim under section 96 of the Immigration and Refugee Protection Act. I also find that you have an objective basis for your fear because of the documented conditions for Kenya as per the evidence in the national documentation package which is found in Exhibit 3. Item 6.1 of the NDP states that having sexual relations with people of the same sex is considered a crime and is punishable by up to 14 years in prison.

[17] Item 2.1 states that the constitution does not explicitly protect LGBTI persons from discrimination based on sexual orientation or gender identity. The penal code criminalises carnal knowledge against the order of nature, which was interpreted to prohibit consensual same sex sexual activity and specifies a maximum penalty of 14 years imprisonment if convicted. The same report goes on to indicate that police have and do continue to detain people under these laws. This excerpt in particular is in line with your testimony about Kenya’s constitution and also you did testify that police continued to detain people under these laws and again this corroborates that.

[18] Continuing on item 6.2, states that the suicidal attitudes towards same sexual relationships are generally intolerant and LGBT people face gross human rights violations in Kenya. In item 6.6 states that the president has come out recently and said that he will not accept practices that are in conflict with Kenyan culture, he says that Kenya’s culture believes that homosexuality is not a human right and he considers gay rights a non-issue for the government to consider.

[19] Therefore, I find that your subjective fear has an objective basis and that you have a well-founded fear persecution due to your sexual orientation. I also found that you have rebutted the presumption of state protection. You fear the state as an agent of persecution because engaging in same sex sexual conduct in Kenya is considered a crime and is punishable with jail time.

[20] In Kenya, the police are also known to not provide protection to LGBT people in fact they are known to be just as likely to persecute LGBTI persons as they are to protect them. Item 6.1 of NDP details an incident where a gay man was stabbed and he reported this to the police only to be arrested himself and charged sodomy. So again, with this in mind I find that adequate state protection would not be available to you in Kenya.

[21] With respect to an internal flight alternative given the conditions that are documented in the country, I further find that there would be a serious possibility of persecution for you anywhere in Kenya, as there are laws criminalising same sex sexual conduct throughout the country. This would prevent you from living freely and openly in Kenya and therefore, I find that there is no viable internal flight alternative for you.

[22] In conclusion based on the totality of the evidence, I find that you are a convention refugee and I therefore accept your claim.

———-REASONS CONCLUDED———-

All Countries Turkey

2021 RLLR 49

Citation: 2021 RLLR 49
Tribunal: Refugee Protection Division
Date of Decision: April 12, 2021
Panel: Tamara Thomas
Counsel for the Claimant(s): Aleksandr Radin
Country: Turkey
RPD Number: TB9-33040
Associated RPD Number(s):
ATIP Number: A-2022-01594
ATIP Pages: N/A

REASONS FOR DECISION

[1] The Claimant, XXXX XXXX XXXX (“Claimant”), is a citizen of Turkey claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).

DETERMINATION

[2] Having considered the totality of the evidence, I find the Claimant to be a Convention refugee under section 96 of the IRPA as he would face a serious possibility of persecution on the basis of his membership in a particular social group, specifically, due to his sexual orientation as a gay man, should he return to Turkey.

ALLEGATION

[3] The allegations of this claim are found in the Claimant’s Basis of Claim (“BOC”) form and subsequent amendment. In essence, the Claimant is a 28-year-old man who alleges harm from Turkish society, Turkish authorities, and his family, in particular his father and his uncles, due to his sexual orientation. The Claimant identifies as gay. He also alleges a fear of harm arising from his father’s perceived and actual political opinion as a Hizmet supporter (referred to as the Fethullah Terrorist Organization, or “FETO”, by the Turkish state). The Claimant’s father is a member of the military and has already been investigated, tried and released due to his perceived membership with FETO. The Claimant alleges his house was raided in October 2019, while he was still in Turkey, and the gendarmerie detained both himself and his father. The Claimant alleges his family learned of his sexual orientation during this raid. The Claimant also alleges fear of harm due to identifying as agnostic, as well as his conscientious objection to military service. He alleges that state protection is not available to him and that he would not be able to live safely anywhere in Turkey.

ANALYSIS

[4] In making this assessment, I have considered all the evidence, including the oral testimony and documentary evidence entered as exhibits. I have also considered the Chairperson ‘s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.ⁱ

IDENTITY

[5] I am satisfied of the Claimant’s personal and national identity as a citizen of Turkey, which has been established on a balance of probabilities by his genuine Turkish passport, a copy of which is in evidence.ⁱⁱThe original was seized upon the Claimant making his refugee claim in Canada.

NEXUS

[6] I find the Claimant has established, on a balance of probabilities, a link between what he fears and a Convention ground; specifically, on the basis of his membership in a particular social group, due to his sexual orientation. This claim will therefore be assessed under s. 96 of the IRPA.

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.ⁱⁱⁱ The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.

[8] Overall, I find the Claimant to have been a credible witness. While there were some internal inconsistences and inconsistences between the documents and the Claimant’ s testimony, discussed below, which I find are sufficient to rebut the presumption of truthfulness, I find that in considering his testimony overall in addition with the documentary evidence before me, the Claimant’s credibility as regards his sexual orientation has been made out on a balance of probabilities. The Claimant’s testimony was generally consistent with his narrative and with the documentary evidence on country conditions in Turkey. He testified generally about his experiences in Turkey, the ways in which he would try to keep his sexual orientation hidden from others and his family, provided the names of some his LGBTQ-identified friends in Turkey and, importantly, testified in detail about his previous partners. On balance, I find in this case that the level of detail the Claimant was able to provide about his previous partners was substantial and it significantly assisted in establishing his credibility as relates to his own sexual orientation.

[9] The Claimant also provided some documentary evidence to support his claim, found at Exhibits 6 through 8, including letters of support from previous partners and LGBTQ-identified friends in Turkey. These letters are accompanied by identity documents for the writers.^iv There were some concerns about some of the ID documents provided for these individuals^v. These concerns were put to the Claimant at the hearing. I find ultimately however that these concerns are not sufficient on their own, without more, to call into question the reliability or genuine nature of the letters and I assign them full weight.

[10] There was a significant concern arising from a discrepancy between the Claimant’s forms, narrative, and testimony regarding when he moved from Bursa to Afyon. Specifically, the Claimant’ s visa application to Canada and his Schedule A form suggest he did not move to Afyon until XXXX 2019.^vi This discrepancy is significant as the Claimant alleges to have met his partner, XXXX, in Afyon in mid-September 2018 and that XXXX returned to Istanbul in XXXX 2019, while the Claimant remained in Afyon.^viiThe letter of support from XXXX also indicates that they couple met in the fall of 2018 and corroborates that XXXX moved to Istanbul in XXXX 2019.^viii

[11] When this discrepancy was put to him, the Claimant appeared confused. The Claimant’s Counsel revisited the issue in his questions, at which point the Claimant accepted that he must have relocated to Afyon by XXXX 2018. He testified that the company he worked for was physically located in Bursa, but given his line of work, he did not need to go into the office and could work remotely. He testified that when he first started working for the company, he initially travelled to Bursa approximately four days a week. The commute time would be just over 3 hours each way, but he needed the job. He started working remotely approximately a month after working there. He accepted the proposition that the dates listed in the “address history” of his Schedule A form was likely a mistake and that the reason Bursa was listed under the “personal history” section of that form was because his company was physically located there.

[12] The Claimant’s testimony has not addressed my concerns. I find the Claimant’s testimony that his forms indicate he was in Bursa until 2019 because this is where is company was physically located is not borne out by evidence before me. Specifically, I find it concerning that all the Claimant’s forms requesting a history of where he was located, including those completed before the Claimant came to Canada, would provide the same timeline. I find this suggests that this was not simply a mistake. Further, the “personal history” section of his Schedule A form also indicates that he was in Bursa, unemployed, prior to starting his job in 2018, and after ending his employment in XXXX 2019. It would not make sense for the Claimant to indicate he was in Bursa prior and subsequent to being employed by this company if the only reason he wrote Bursa in the “personal history” section of the forms was because the company was located there. I find the balance of the evidence before me establishes that it is more likely than not that the Claimant did not move to Afyon with his family in XXXX 2018 as alleged in his narrative. This discrepancy results in a negative inference regarding the Claimant’s overall credibility.

[13] I note, however, that the Claimant was able to provide detailed testimony about XXXX. and their time together, as well as his other same-sex partners in Turkey. As noted above, letters of support have been provided by several of these individuals. Given this, I am prepared to give the Claimant the benefit of the doubt despite my lingering concerns arising form the discrepancy detailed above. I therefore find the Claimant has established, on a balance of probabilities, it is more likely than not that he was in a romantic relationship with XXXX while in Turkey. I also find that, when weighed as a whole, there is sufficient credible evidence before me to establish, on a balance of probabilities, that the Claimant has also been involved in other same-sex relationships in Turkey. This, along with his testimony regarding his own personal experiences, is sufficient to establish, on a balance of probabilities, his sexual orientation.

[14] I find that, having established his sexual orientation, the Claimant has also established his subjective fear on a balance of probabilities.

Objective Basis

[15] I find that this claim is objectively well-founded, as illustrated in the country conditions documents provided by the Claimant^ix and the information contained in the National Documentation Package (“NDP”) for Turkey.^x

[16] The US Department of State’s 2019 Country Report for Turkey includes violence against lesbian, gay, bisexual, transgender and intersex (LGBTQI+) persons on its list of significant human rights issues for the country.^xi Although same-sex sexual activity is legally permitted in Turkey, LGBTQI+ people continue to experience widespread discrimination, intimidation, police harassment, and violent crimes, including murder. Harassment and abuse against the LGBTQI+ community are reportedly common, with an increase in homophobic and transphobic assaults during the state of emergency.^xii These assaults have continued despite the end of the state of emergency.^xiii LGBTQI+ persons are still victims of honor killings by family members and there remains considerable social pressure for lesbian and gay individuals to enter heterosexual marriages and produce children.^xiv

[17] The government at both at local and state-wide levels continue to espouse and support anti LGBTQI+ sentiment with its actions and statements. Pro-government media and high-level officials, including the president, have been noted to frequently make derogatory comments and statements about homosexuality. Recently, during the COVID-19 pandemic, the head of the Religious Affairs Directorate said in a Ramadan sermon that Islam condemned homosexuality because it brought disease and blamed it for the spread of HIV. These statements were subsequently supported publicly by the President and other cabinet ministers.^xv LGBTQI+ organizations have reported a sharp increase in campaigns of intimidation and harassment targeting individuals or planned events. Bans on LGBTQI+ events in recent years have continued, with attendees forcefully and violently dispersed by the police through the use of batons, tear gas, water cannons, and rubber bullets and detained by police for several hours. Police harassment of LGBTI+ persons remain common, and LGBTQI+ individuals have been taken into custody in Turkey due to social media posts and comments on social media sites such as Facebook.^xvi

[18] Hate speech against LGBTQI+ persons is not effectively persecuted and is often found to fall within the boundaries of freedom of speech. Sexual orientation and gender identity are still not protected grounds in hate crime law. The lack of explicit legal protection for LGBTQI+ individuals has amounted to a tacit legal endorsement of acts of violence and discrimination. There is widespread discrimination against LGBTQI+ people in education, employment, health, housing, and access to services. References in the law relating to “offenses against public morality,” “protection of the family,” and “unnatural sexual behavior,” have been used as a basis for abuse by police and for discrimination by employers. LGBTQI+ people continue to be treated negatively in the workplace on a regular basis and often have to conceal their sexual and gender identity at work or risk facing repercussions.^xvii

[19] This objective country condition evidence is consistent with and supports the Claimant’s allegations of persecution and harm were he to live openly as a gay man. I find that, when considered as a whole, the documentary evidence establishes that it is more likely than not that LGBTQ+ persons are persecuted and unable to live openly without fear of being harmed in Turkey and that the level of discrimination in Turkey amounts to persecution given its pervasive and widespread nature, including the inability of LGBTQI+ individuals to live openly in Turkey while simultaneously accessing services that are essential for their livelihood, such as work, housing, or health services.

[20] I therefore find the Claimant has established a well-founded fear of persecution on the basis of his sexual orientation.

[21] The Claimant has also raised allegations of harm based on his political opinion due to his perceived membership with the Hizmet movement, as well as on the basis of his conscientious objection to military service and agnosticism. However, given I have found the Claimant has established his claim on the basis of his sexual orientation, I will not engage in an assessment of the other alleged grounds put forward.

State protection would not be available

[22] Given the foregoing, I find there is sufficiently clear and convincing evidence to find the presumption of state protection to be rebutted. In practice, law enforcement officials and the judiciary take a lenient attitude towards crimes committed against LGBTQI+ individuals. A May 2020 Kaos GL report indicates that there was an “increase” in rights violations against LGBTI+ individuals “that originated directly from authorities and law enforcement” in 2019. Judges have routinely applied the defense of “unjustifiable provocation” under the penal code to reduce sentences of those who have killed LGBTQI+ persons, and courts of appeal have upheld the verdicts based, in part, on the “‘immoral nature’ of the victim.” Numerous cases of crimes against people of a different sexual orientation or gender identity remain unpunished. The ECRI Report on Turkey indicates that the police tend to trivialise hate crime targeted at LGBTQI+ persons and are reluctant to open investigations into such cases. Very few LGBTQI+ victims report hate crimes to the authorities, and many have suffered violence and sexual abuse from the police.^xviii I therefore find that state protection would not be reasonably available to the Claimant in Turkey.

There is no viable internal flight alternative (“IFA”)

[23] For the same reasons, considering the objective evidence and that the agent of persecution is the state, I find the Claimant would face a serious possibility of persecution throughout the country. The objective evidence indicates that the level of persecution, lack of state protection and inability to live life openly as a gay man would remain the same across the country. I find the Claimant would face a serious possibility of persecution across the country and that there is therefore no viable internal flight alternative available him in Turkey.

DECISION

[24] Given the above, I find that the Claimant has established, on a balance of probabilities, that he would face a serious possibility of persecution on the basis of his sexual orientation if he were to return to Turkey.

[25] I therefore find the Claimant is a Convention refugee pursuant to s. 96 of the IRPA and accept his claim.

(signed) Tamara L. Thomas

12 April 2021

i Chairperson‘s Guideline 9: Proceedings Before the IRB 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.

ii Exhibit 1.

iii Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).

iv Exhibit 6, p. 45-67.

v Exhibit 6, p. 57, 63.

vi See Exhibits 1 and 4.

vii See Basis of Claim narrative, at pars. 17-18.

viii Exhibit 6, p. 53.

ix Exhibit 8.

x Exhibit 3, National Documentation Package for Turkey (“Turkey NDP”), 18 December 2020.

xi Exhibit 3, Turkey NDP, Item 2.1: Turkey. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020.

xii Exhibit 3, Turkey NDP, Item 1.14: Country Policy and Information Note. Turkey: Sexual orientation and gender identity. Version 2.0. United Kingdom. Home Office. June 2017; See also, Item 1 .4: Turkey: Country Report –Version 3. Asylum Research Centre. 21 November 2017.

xiii Exhibit 3, Turkey NDP, Item 6.5: Treatment of persons with diverse sexual orientation and gender identity and expression (SOGIE) by society and state authorities, including state protection and support services (2018—November 2020). Immigration and Refugee Board of Canada. 26 November 2020. TUR200360.E.

xiv Exhibit 3, Turkey NDP, Item 1.17.

xv Exhibit 3, Turkey NDP, Item 1.17.

xvi Exhibit 3, Turkey NDP, Item 2.7: Weathering the Storm: Defending Human Rights in Turkey’s Climate of Fear. Amnesty International. 26 April 2018. See also, Item 1. I 4; See also, Item 1.4.

xvii Exhibit 3, Turkey NDP, Item 1.17; See also, Item 1.14; See also, Item 2.16: Turkey. Country report: Nondiscrimination. European Commission. Directorate-General for Justice and Consumers. 20 1 9.

xviii Exhibit 3, Turkey NDP, Items 6.5, 1.14, and 1.4.

All Countries Chile

2021 RLLR 48

Citation: 2021 RLLR 48
Tribunal: Refugee Protection Division
Date of Decision: August 12, 2021
Panel: Evan Stringer
Counsel for the Claimant(s): Elanor Rose Andrew
Country: Chile
RPD Number: TB9-01668
Associated RPD Number(s):
ATIP Number: A-2022-01594
ATIP Pages: N/A

REASONS FOR DECISION

[1] This is the decision in the claim for refugee protection of XXXX XXXX XXXX XXXX (the claimant). The claimant alleges to be a citizen of Chile and seeks Canada’s protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

[2] In assessing this claim, I have considered the Chairperson’s Guideline No. 9 regarding claims based on Sexual Orientation and Gender Identity and Expression, and Guideline No. 4 regarding women facing gender-based violence.

DETERMINATION

[3] For the reasons that follow, I find that the claimant would face a serious possibility of persecution in Chile due to her membership in a particular social group as a lesbian woman. I therefore find that she is a Convention refugee pursuant to section 96 and accept her claim.

ALLEGATIONS

[4] The claimant’s allegations are set out in her Basis of Claim form and attached narrative, as well as the amendments to her BOC narrative (BOC).¹The claimant alleges that she is a lesbian woman. She fears that if she returns to Chile, she will have to hide her sexual orientation, and that, if she does not, she will face physical attacks by skinheads and other strangers, harassment including verbal abuse and threats from strangers, and physical attacks and death at the hands of her cousin. She also fears being deprived of the ability to earn a living in Chile should an employer discover her sexual orientation.

IDENTITY

[5] The claimant’s identity was established by her Chilean passport, a certified true copy of which was provided by the Minister. I am satisfied that the claimant has established, on a balance of probabilities, her identity as XXXX XXXX XXXX XXXX, a Chilean national.

NEXUS

[6] There is a clear nexus between the harm the claimant fears and a Convention ground, namely her membership in a particular social group as a lesbian woman. Accordingly, this claim has been assessed under section 96.

CREDIBILITY

[7] Overall, I found the claimant to be a very credible witness with respect to the core elements of her claim – namely, her identity as a lesbian woman, her past experiences of being threatened, verbally abused, harassed, and chased by skinheads in Chile on account of her sexual orientation, her experience of being fired from her XXXX XXXX XXXX and the threats of violence from her cousin, XXXX I did not note any inconsistencies, contradictions, or omissions going to the core of the claim.

[8] The claimant provided credible testimony about her profile as a lesbian woman. She easily and spontaneously described her early experiences of becoming aware of her sexual orientation and provided detailed testimony in response to all of my questions about her past same-sex relationships, including with her former spouse. In support of her identity as a lesbian woman, the claimant also provided numerous supporting documents, including her marriage and divorce certificates pertaining to her marriage to DR, many photos of the claimant and DR, letters from LGBTQ community organizations speaking to their knowledge of her involvement with the LGBTQ communities in Montreal and in Toronto, and letters from friends and former colleagues in both Canada and Chile speaking to the claimant’s sexual orientation. I found these documents to be reliable and give them full weight in further supporting the claimant’s identity as a lesbian woman.

[9] The claimant provided detailed testimony about her experiences as a lesbian woman in Santiago, Chile. She stated that, based on her own experiences, she fears that she will suffer violence and harassment if she is open about her sexual orientation in Chile.

[10] When I asked the claimant about day-to-day examples of having to hide her sexual orientation, she stated that, for example, in Chile she could not hold her same-sex partner’ s hand in public like heterosexual couples can, and that she had to adjust her style of dress, hair, and makeup in an effort to avoid being identified as a lesbian and subjected to violence and harassment in public in Santiago, where she resided. The claimant described a few occasions where her and her partner did hold hands in public and testified that on every such occasion, they would have homophobic comments shouted at them, as a result of which they stopped holding hands. Based on these experiences, she stopped holding her partner’s hand in public. She also described how after getting a short hair cut in 2017, she was yelled at with homophobic slurs. In an effort to compensate and avoid further danger, the claimant described how she began wearing more feminine makeup and clothes, instead of her usual more “tomboy” style to try to avoid being perceived as a lesbian.

[11] The claimant testified that there is a “gay village” in Santiago where she used to go out with friends some evenings. She explained that, unlike the gay village in Toronto, there are no Pride flags outside of LGBT establishments as this would make them a greater target for attacks. She further explained that while she felt it was important to visit this neighbourhood in order to experience a sense of community, she did not feel safe when she visited it. She testified that every time she went out in the gay village she was afraid of being chased and attacked by skinheads. She described one occasion around 2015 when, after leaving a gay bar in this neighbourhood, a group of men waiting outside began to yell homophobic slurs at the claimant and her friends and chased them down the street. She was able to get away, but two of her friends were punched in the face. When asked if she considered reporting that incident to the police, the claimant stated that she and her friends didn’t even consider it because they don’t trust the police and didn’t believe they would do anything.

[12] The claimant also provided consistent and detailed testimony about her experience being fired from the XXXX XXXX XXXX in Santiago in 2015. She explained that one of the mothers of the children had learned that the claimant was a lesbian and told her employer that she would be withdrawing her child if the claimant were allowed to continue working there. The very next day, the claimant was fired without any reason being offered. One of the claimant’s co-workers with whom she maintained a friendship, told her that it was understood among the employees that she had been fired in order to appease the parent who had complained about her sexual orientation. I found the claimant’s testimony in this regard to be credible and sincere.

[13] She also explained how she had gone to the local police station in her neighbourhood in Santiago to file a complaint based on prohibited discrimination. She explained that while she did have concerns about the police, her livelihood was on the line, and she did not know what else to do, so she decided to try approaching the police for help. She testified that the police ridiculed her, stating that a lesbian was not fit to be around young children, and that her employer had good reason to fire her. They did not take any report or refer her to any other agency or otherwise direct her to any assistance.

[14] The claimant also provided detailed and consistent testimony about her fear of harm from her cousin, XXXX. She explained that since her family found out about her sexual orientation, her cousin, XXXX has subjected her to verbal abuse and threats. Things came to a head in January 2018 when she was already outside of Chile when the claimant’s cousin directed a tirade of homophobic insults and threats at her and her partner, threatening to seriously harm them if they returned to Chile. More recently, in February 2020, the claimant was informed by her mother that she had run in to XXXX who made further homophobic threats against the claimant and renewed his threat to kill her if she returned to Chile.

[15] The claimant described her fear of her cousin, explaining his history of being arrested and released from prison for having beaten ex-girlfriends on multiple occasions, as well as her belief that he is associated with neo-Nazis, based on him having bragged to her in the past about he and his friends beating up gay men in Santiago’s gay village. When asked whether she could obtain protection from the police from her cousin, she stated that she did not believe they would help her, and, based on her past experiences with the police, and those of other LGBTQ individuals, she fears they might be a further danger to her if she approached them for help.

[16] In support of the harm the claimant fears from her cousin, she provided copies of the Facebook messages from her cousin in January 2018, detailing the threats against her and her former partner as alleged. She also provided a signed letter from her mother, accompanied by her photo identification card, describing the threats XXXX made against the claimant to her in February 2020, and her fear that he will follow through on those threats if the claimant returns to Chile. I found these documents to be reliable and give them full weight in supporting the claimant’s fear of harm at the hands of her cousin XXXX.

[17] The claimant provided letters from former school mates, co-workers, and members of the LGBTQ community in Canada and Chile speaking to their knowledge of harassment and bullying she experienced in school on account of her sexual orientation, their knowledge of her having been fired because of her sexual orientation, and their own experiences of enduring homophobic violence in Chile in recent years for which the police did not provide them assistance. I found these documents to be reliable and give them full weight in supporting the claimant’ s past experiences in Chile and her fear of persecution.

[18] Based on the claimant’s credible testimony, and the reliable supporting evidence she provided, I find that she has established, on a balance of probabilities, her identity as a lesbian woman, her experiences of violence, threats, and harassment related to her sexual orientation from skinheads, strangers, and her cousin, XXXX as well as her loss of employment in 2015 and subsequent experience with the Chilean police. I further find that the claimant has established a subjective fear of persecution in Chile for reason of her identity as a lesbian woman.

OBJECTIVE BASIS

[19] The ongoing death threats against the claimant by her cousin XXXX support the objective basis of her fear of physical and verbal attacks in Chile. The claimant’s fear of being physically attacked and harassed in Chile because of her sexual orientation as a lesbian woman, both by her cousin, as well as by skinheads and other strangers, is supported by the documentary evidence before me in the National Documentation Package (NDP) for Chile² and in counsel’s country conditions package.³

[20] The U.S. Country Reports on Human Rights Practices for Chile states in its executive summary that “Significant human rights issues included reports of arbitrary or unlawful killings; torture by law enforcement officers; violence against lesbian, gay, bisexual, transgender, and intersex persons; and violence against indigenous persons.”⁴ [emphasis added]. The report states that violence against LGBT individuals continues and details two notable cases where gay men were abused by the police. The report also indicates that law enforcement authorities appear reluctant to use the full recourse of Chile’s anti-discrimination laws.

[21] Other sources in the NDP indicate that despite the existence of progressive laws and attempts to stem discrimination, hate crimes continue and homophobic murders are still being recorded.⁵ Movilh, a Chilean LGBTQ rights organization, reports that in recent years, attacks against LGBTQ people have climbed to record numbers. In their 2021 report, they highlight 1,266 abuse cases against the LGBTI community reported in 2020.⁶ Their 2020 report indicates that over seventy-five percent of eight-hundred and fifty lesbian women surveyed had suffered harassment on the street because of their sexual orientation.⁷

[22] The claimant’s own experiences of being yelled at on the street by individuals who suspected she was a lesbian, are suggestive of an undercurrent of a homophobic society. While the documentary evidence indicates that same-sex relationships were decriminalized in 1998 and a civil union comparable to marriage was legalized in 2015, the claimant’s own experiences and those evidenced in the documentary evidence indicate that Chilean society has not yet progressed to a point where sexual minorities can live openly and free of potential persecution and violence.

[23] Another study indicates that since the high-profile homophobic murder of Daniel Zamudio in Santiago in 2012, which prompted new hate crime legislation and anti discrimination measures, only twenty-three percent of five-hundred anti-SOGIE discrimination lawsuits filed as of 2020 went to trial, and of those, a majority have been decided against the victim.⁸ Despite the introduction of new legislative tools to fight homophobic crimes in Chile, reports of hate crimes against LGBTQI people have increased since the measures were introduced. Complainants have registered thirty-four new potential hate crimes, but the anti discrimination law has proven ineffective to deliver justice: it has only been applied on four occasions and there haven’t been reparations of any sort.⁹

[24] Counsel’s country conditions package includes numerous examples in the last few years of murders and violent attacks against lesbian women in Chile in various parts of Santiago, as well as in other cities and rural areas throughout the country. A 2019 article from Le Monde Diplomatique indicates that “small groups with fascist leanings regularly – and violently – attack feminists, lesbians, and transgender people”.¹⁰ Another 2019 article describes a young lesbian couple who were violently attacked while walking home at night holding hands in Santiago’s “gay village” of Bellavista.¹¹ Other reports from 2019 describe attacks against LGBTQ individuals in Santiago and in other cities, wherein the victims were branded with swastikas.¹²

[25] The claimant’s fear of being deprived of her ability to earn a living in Chile is supported by her past experience of having been fired from her XXXX XXXX because of her sexual orientation in 2015. While this discriminatory treatment does not in and of itself amount to persecution, I have considered it as an additional factor in considering whether the harm feared, considered in its totality, amounts to persecution. The claimant’s fear of being further subjected to employment discrimination in Chile is further supported by the documentary evidence.

[26] Counsel’s country conditions package includes two high-profile cases of lesbians losing their employment in the field of education due to their sexual orientation: one a high school teacher¹³, and one a university faculty head.¹⁴ In the case of the school teacher, her case was rejected by the San Miguel Court of Appeals as well as by the Supreme Court of Justice. It was not until the matter was brought before the Inter-American Commission on Human Rights (IACHR) that it was determined that her dismissal was discriminatory.

[27] Taking into account the ongoing death threats from her cousin, her past experiences of being shouted at, chased, and threatened with violence, and losing her XXXX, as well as the documentary evidence indicating that, despite seemingly progressive laws, violence and discrimination against lesbians in Chile remains a serious concern, I find that the claimant’s fear of persecution in Chile is objectively well-founded.

[28] I find that the harms the claimant fears should she live openly in Chile as a lesbian woman – violence and harassment from skinheads and other strangers, violence including murder from her cousin XXXX and dismissal from her job – considered together – amount to persecutory treatment. Accordingly, I find that the claimant would face a serious possibility of persecution in Chile as a lesbian woman.

STATE PROTECTION

[29] For the reasons that follow, I find that the claimant has rebutted the presumption of state protection with clear and convincing evidence. In coming to his finding, I have considered Guideline 9, which states that where individuals with diverse SOGIE do not disclose their SOGIE or report incidents of violence out of fear of further reprisal from the state or non-state actors, it may be unreasonable for them to approach the state for protection. It also states that in countries where decriminalization of same-sex relation has recently occurred, decision-makers must carefully assess whether state protection is adequate at the operational level.

[30] The claimant testified that on the one occasion where she sought assistance from the police in Santiago in 2015, she was mocked and insulted because of her sexual orientation. The claimant further testified that with respect to the threats made against her by her cousin, not only does she not believe that the police will not help her, she also fears based on her own experiences and those of others that she may face further abuse from the police. She is therefore reluctant to confirm her belief that the police will not protect her.

[31] As cited above, the U.S. Department of State includes recent examples of police abuses against LGBTQ individuals. Further examples of police abuse of members of the LGBTQ community are highlighted in counsel’s country conditions package. For example, a 2019 article in the Advocate¹⁵ describes cases of gay men arrested after being caught up as bystanders to a protest action, and being subjected to homophobic slurs, stripped naked and sexually assaulted, beaten, and hit on the head until they referred to themselves by a homophobic slur. In both cases, when the officers learned that the individuals were gay, the homophobic slurs and violence began. The article also reports on the case of a prison officer who was denounced for physically abusing five LGBTQ individuals at a Santiago penitentiary because of their sexual orientation. These types of incidents, considered alongside the claimant’s own experience of being mocked by the Chilean police, are indicative of a homophobic attitude that appears to be well-entrenched in the Chilean police force.

[32] A 2019 BBC article¹⁶ about a string of violent attacks and murders of lesbian women in Valparaiso, as well as attacks against lesbians in Santiago, describes the pervasive distrust of the police by lesbian women in Chile. The report notes that after the BBC produced a report about one homophobic attack, the police arrested two men in relation to the case, which was viewed as a shock to members of the community. The BBC reports that, “Lesbian activists tell the BBC that the arrest was unexpected, even though there was CCTV footage and the attackers were known to the victim. Generally, they say, lesbophobic violence goes unpunished.”

[33] The BBC reports that lesbian activists set up a WhatsApp number called the Linea Violeta (the Violet Line) in 2019, which received more than one hundred reports of violence or intimidation in a month, but none were reported to police because the callers saw no point – they were convinced no action would be taken.

[34] The 2019 Advocate article¹⁷ provides a recent example, reporting that in June 2019 a gay couple who had been physically assaulted by a co-worker reported the attack to the police, who refused to help, with one officer stating, “Imagine what disease you’re carrying” upon noticing that one of the men was bleeding.

[35] The documentary evidence cited throughout these reasons indicates that there is a culture of homophobia within the Chilean police forces, including instances of violence against LGBTQ individuals, that they are reluctant to enforce existing anti-discrimination laws, and that members of the LGBTQ community rarely report attacks against them to the police for fear of further abuses and out of a belief that the police will not help them. Based on the documentary evidence before me, as well as the claimant’s own credible experiences, I find that the claimant has rebutted the presumption of state protection and that adequate state protection would not be available to her as a lesbian woman in Chile.

INTERNAL FLIGHT ALTERNATIVE

[36] Based on the country evidence highlighted throughout these reasons, the type of harm the claimant fears as a lesbian woman, and the lack of adequate state protection in Chile for LGBTQ individuals, exists throughout the country, and is in fact notably worse in some areas outside of Santiago, the claimant’s home city. Accordingly, I find that the claimant would face a serious possibility of persecution throughout Chile, and that there is no viable internal flight alternative available to her in Chile.

[37] Because the claimant would face a serious possibility of persecution throughout Chile under the first prong of the IFA test, it is not necessary to proceed with an analysis under the second prong.

CONCLUSION

[38] Having carefully considered all of the evidence before me, I find that the claimant would face a serious possibility of persecution in Chile due to her profile as a lesbian woman. Accordingly, I find that she is a Convention refugee pursuant to section 96 of the IRPA and accept her claim.

(signed) Evan Stringer

August 12, 2021

1 Exhibits 2, 4, 7.

2 Exhibit 3.

3 Exhibit 9.

4 Item 2.1, NDP for Chile.

5 Item 6.1, NDP for Chile.

6 Exhibit 9, p. 74.

7 Exhibit 9, p. 76.

8 Exhibit 9, p. 71.

9 Ibid.

10 Exhibit 9, p. 27.

11 Exhibit 9, p. 40.

12 Exhibit 9, pp. 36, 50, 63.

13 Exhibit 9, p. 48.

14 Exhibit 9, p. 46.

15 Exhibit 9, pp. 78-87.

16 Exhibit 9, p. 1-20.

17 Supra Note 15.

All Countries Nigeria

2021 RLLR 47

Citation: 2021 RLLR 47
Tribunal: Refugee Protection Division
Date of Decision: January 12, 2021
Panel: Joseph Berkovits
Counsel for the Claimant(s): Ugochukwu Udogu
Country: Nigeria
RPD Number: TB8-31369
Associated RPD Number(s):
ATIP Number: A-2022-01594
ATIP Pages: N/A

REASONS FOR DECISION

[1] Mr. XXXX XXXX, a 44-year-old citizen of Nigeria, has claimed refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act, (the IRPA).

[2] The panel has considered the Chairperson’s Guideline 9: “Proceedings before the IRB involving Sexual Orientation and Gender Identity and Expression.”¹

[3] Pursuant to paragraph 17(c) of the Immigration and Refugee Protection Act and according to Section 29 of the Refugee Protection Division Rules, the Minister informed the Refugee Protection Division that he wished to intervene in this claim by making observations and submitting evidence. The Minister’s submissions formed Exhibit 4². The Minister’ s representative intervened in writing only.

DECISION

[4] For the reasons given below, the panel finds that the claimant is a Convention refugee.

ALLEGATIONS

[5] The claimant’s allegations are, in summary, that due to his bisexual sexual orientation, as well as his political opinion, he faces violence, arrest and imprisonment in Nigeria.

[6] The claimant, who has been an active member of an opposition party, alleges that after a same-sex relationship with a prominent member of another party- the governing party ended, his former partner organized reprisals against him, which resulted in the claimant being shot at and injured by people sent over by the governing party, threatening phone calls, and ultimately, a police investigation on the grounds of the claimant’s bisexuality.

[7] On XXXX XXXX, 2018, the claimant was able to fly from Nigeria to Canada on an assumed identity, and on November 24, 20218 he claimed asylum.

[8] The claimant alleges that should he return to Nigeria, he faces criminal charges for being bisexual, and that he also faces extra-judicial violence at the hands of political adversaries.

NEXUS

[9] Given the claimant’s allegations, his claim will be assessed pursuant to section 96 of the IRPA, with the nexus being a person of a particular social group, as a bisexual man. While the claimant’s allegations about his political opinion also forma nexus to section 96 of the IRPA, because of the strong connection between his allegations about his sexual orientation and his political opinion, his claim will primarily assessed on the grounds of membership in a particular social group.

IDENTITY

[10] While the claimant flew into Canada under an assumed identity, the claimant’s personal identity as a citizen of Nigeria has been established by a certified copy of his true passport. Also, biometric information shared between Canada and the United States reveals that his identity is as claimed in his application.³

[11] The panel therefore finds that the claimant has established his identity, on a balance of probabilities.

CREDIBILITY

Introduction:

[12] 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 truthfulness. Hence, as a corollary, there is no general legal requirement for a claimant to corroborate sworn testimony that is uncontradicted and otherwise credible.

[13] In terms of the claimant’s general credibility, and in light of the evidence below, the panel has found him to be a credible witness and the panel therefore accepts what he has alleged in his oral testimony and in his basis of claim form.

The Minister’s Intervention:

[14] It was the position of the Minister that “the claimant has not been consistent in his answers to a point where it is difficult to discern the truth of his statements.”⁴ The panel put these concerns to the claimant, and will consider each one separately below;

[15] Firstly, the Minister submitted that, “The claimant did not declare that he was denied a US visa in his Schedule A, even though he clearly admitted that fact in his last US NIV application.” According to the claimant, he did verbally inform the officer at the airport in Toronto that he had applied for a US visa after the officer asked if he if had or had not. He further testified that he was under the impression that the officer wrote his answer down and that he had no intent to be misleading. It was the submission of the claimant’s counsel that the failure to complete Schedule A correctly constituted an error or a miscommunication rather than an intentional effort to mislead Immigration. Ultimately, the panel agrees and does not find that the failure to properly fill in Schedule A, undermines the claimant’s credibility in an substantial way, especially in light of the claimant’s testimony, which the panel accepts as credible, that he thought that his verbal answer to the officer at the airport was written down and kept on record. As such, the panel does not find that this concern, in and of itself, is sufficient to undermine the claimant’s credibility.

[16] Secondly, the Minister submitted that, “The claimant declared that he travelled alone and also inferred that he travelled with someone. The Minister does not believe that both statements can be true.” The claimant confirmed at the hearing that he travelled alone from Abuja, stating that he last saw the agent assisting him when he got onto the plan in Abuja. However, in the narrative attached to his Basis of Claim, the claimant does state that “we transited in Cairo International Airport in Egypt. We spent some hours in Cairo Airport before we now took off from Cairo Airport on that same day of XXXX XXXX 2018. Then we arrived in Toronto Canada International Airport on the XXXX XXXX 2018 and filed for asylum.”⁵ At the hearing, the claimant testified that by using “we” in the previous sentences, he merely meant to refer to the other passengers on the airplane, meaning that he was not the only person on the airplane. The panel accepts this explanation as reasonable, as the usage of “we” does not have to interpreted literally and can reasonably be employed in a more colloquial fashion. As such, and in light of the claimant’s explanation, the word “we” does not need to be interpreted with such precision in this context, especially in light of the fact that while the claimant speaks English, it is not his first language. Overall, the panel does not find that anything substantial turns on this issue in terms of the claimant’s overall credibility.

[17] Thirdly, the Minister submitted that “The claimant swore by declaration that he came to Canada on XXXX XXXX 2018 while officer notes clearly show that he arrived and was examined on XXXX XXXX 2018.” After hearing the claimant’s testimony at the hearing, as well as referring to the documentary evidence in Exhibit 1⁶, the panel is not persuaded that this issue is substantially affects the claimant’s credibility. The claimant’s explanation for the discrepancy was clear and reasonable. According to the claimant, he arrived at the Toronto airport on XXXX XXXX , 2018, and made his claim for asylum at that point. However, he returned for a second interview at the Immigration Officer on December 3, 2018. These interview notes are included in Exhibit 1 and are dated December 3, 2018.⁷ The claimant subsequently filed his Basis of Claim Form on December 17, 2018, and then was given up to two weeks to file his narrative, which he did by December 28, 2018. At the time that the claimant filed his narrative, he included the declaration referenced by the Minister, on December 17, 2018. At this point, however, according to the claimant’s counsel, a template was used that referenced to the date that the claimant attended his second interview, which was December 3, 2018, rather than his date of entry and initial entry to Canada, which was XXXX XXXX, 2018. The claimant’s counsel submitted that this was essentially a clerical error due to the multiple dates involved and did not represent an attempt to mislead the Minister. The panel does not find that the claimant’s credibility can be undermined in any substantial way by an incorrect date being given in a statutory declaration that the panel is persuaded was done inadvertently, and that, in and of itself, does not in the panel’s view, speak to the merits of the claim in any meaningful way.

[18] Fourthly, the Minister submitted that “The claimant submitted a BOC narrative which cited sexual orientation as the basis of his claim as well as political opinion. This differs from what he told the examining officer upon arrival to Canada.” At the hearing, the claimant testified that as a person coming from a country where bisexuality is criminalized, he initially felt frightened to disclose his bisexuality, for fear that he would be turned back to his home country immediately. Even though the claimant is not unsophisticated, and is a XXXX in Nigeria, he testified that he came from a closed and homophobic society where one’s bisexuality is kept secret. He testified that he felt fear at the prospect of talking to a government official about his sexuality, and the fact that she was wearing a uniform made him feel particularly scared. However, it should be noted that by the second interview with the Immigration Office, on December 3, 2018, which was well before the claimant submitted his narrative in December 28, 2018, the attending officer’s notes do reflect the claimant’s answer that he is bisexual.⁸

[19] The panel accepts the claimant’s explanation for his initial reluctance to disclose his bisexuality to the Immigration Officer as reasonable, particularly given his objective country conditions, where bisexuality is criminalized, and as will be discussed in a separate section below. The panel also notes section 7.4 of the Chairperson’s Guideline 9: “Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression,” wherein it is stated that: “Decision-makers should examine whether there are cultural, psychological or other barriers that may reasonably explain [an] inconsistency. For instance, it may be difficult for an individual who has concealed their SOGIE to disclose and discuss it with government authorities at a port of entry, which may give rise to an inconsistency between information from the port-of-entry interview and testimony at a hearing.”⁹ In this instance, the claimant did, however, disclose his sexual orientation fairly soon after his initial port of entry interview, by December 3, 2018, and well before he filed his Basis of Claim Narrative on December 28, 2018. Overall, the panel finds that claimant’s credibility is not undermined in any substantial way by this issue raised by the Minister.

[20] Fifthly, the Minister submits that it is difficult to know what is the truth, and what is part of an evolving narrative.” The panel understands this submission to be connected to the previous submission which the panel has already addressed in the previous paragraph, but also to engender a more general concern with the claimant’s credibility. As will be seen in the analysis below, during the course of a lengthy hearing, the panel found the claimant’s testimony about the core of his claim, in particular as it related to his sexual orientation, to be consistent both during the course of the hearing, and to be consistent with his Basis of Claim, as well as well supported by corroborating documents. While, as will be discussed below, his allegations on the basis of his political opinion were less central to his section 96 claim, there was no reason for the panel to find that the claimant was being untruthful about them. Overall, and for the reasons below, however, the panel found the claimant to be truthful and credible.

The Claimant’s Sexual Orientation:

[21] According to the claimant, he first realized that he had feelings for other males when he was in secondary school and felt a ‘chemistry” with a classmate named XXXX and this evolved into a physical relationship. After graduation, the two were unable to keep in touch. The claimant detailed other relationships with men that followed, as well as his unhappy marriage with his wife.

[22] In 2016, during the course of his work as a political organizer for the leading opposition party in Nigeria, the PDP, the claimant met an eventual partner, XXXX, a prominent and powerful organizer for the governing party, while the two campaigning for their respective candidate. The claimant testified that he “could not resist a handsome man,” and at the claimant’s initiative, the two started dating clandestinely. However, according to the claimant, XXXX started demanding that the claimant switch political parties and began exhibiting controlling behaviour overall, something that the claimant found frightening. The claimant stated that he commenced seeing another man XXXXS who became the claimant’s partner to this day, although the claimant’s partner is still in Nigeria. To help corroborate his testimony about their relationship, the claimant submitted photos and print-outs of numerous text messages exchanges between himself and XXXX.¹⁰

[23] Soon after the claimant commenced this new relationship, however, XXXX found out, and in October, 2017, sent “thugs” over to a private party he was having with his new partner, and this resulted in the claimant being shot in the leg. Being afraid to go to the hospital for fear of a police report, which he testified would result in the authorities finding out about the bisexual relationships he was having, he went to stay with a traditional medical practitioner who would not report the bullet wound to the police. The claimant submitted into evidence two photographs of the bullet wound to his leg.¹¹ However, the claimant’s wife found him some three or four days later, still being treated by the practitioner. According to the claimant, his wife, instead of being sympathetic to him, became very angry, confronted him about his bisexuality, reported him to their pastor, and demanded that the claimant call him. The claimant testified that he was too afraid and ashamed to call his pastor. Nevertheless, the claimant’s pastor ultimately called the claimant and informed him that his wife was leaving him.

[24] Only a few months later, by January, 2018, the claimant received a phone call from a police inspector from his home city of Benin City, notifying him of a complaint that had been made against him on the grounds of his sexual orientation, and ordering him to turn himself in. In the meantime, the claimant started receiving threatening phone calls from either XXXX or his friends. According to the claimant, the fact that XXXX was also bisexual did not make him any less of a danger to him, because XXXX was so well connected politically, that he was able to insulate himself from homophobia more than the claimant could, who was no as powerful and well-connected.

[25] As a result of these threats from both the police as well as from his former partner, XXXX the claimant decided to leave Nigeria, using the services of an agent who was able to obtain travelling documents and a passport of a man with the same last name as the claimant. The claimant testified that he keeps in touch with his cousin in Nigeria, who informed him that the police are still looking for him. The claimant’s fear of the police was understandable. As will be discussed further below, the passing of the Same Sex Marriage Prohibition Act in 2014 has, according to an objective observer, resulted in “increased harassment and threats against” LGBTQ people. “According to [Human Rights Watch], the law had become a tool used by police and members of the public to legitimize human rights violations against LGBTI persons such as torture, sexual violence, arbitrary detention, extortion, and violations of due process rights.”¹²

[26] Since coming to Canada, the claimant has been able to participate in LGBTQ positive events, such as social activities sponsored by the 519 Community Centre, which he attended prior to the pandemic. The claimant provided corroboration of his participation in LGBTQ activities by means of a letter from the LGBTQ Refugee Programme at the 519 Centre, as well as his attendance records at a Newcomer Training Programme at the 519 Centre, as well as his membership card in their “Among Friends Program.”¹³

The Claimant’s Political Opinion

[27] While the claimant also submitted that he was being persecuted as a result of his political opinion, the panel finds that his political opinions were less central to his section 96 claim than his membership in a particular social group. Nevertheless, the claimant gave credible evidence about his political activities. The claimant met his previous partner through his political activities, and the claimant demonstrated credible knowledge about this aspect of his life. The claimant established that he belonged to an opposition party, submitted into evidence his party membership card¹⁴, gave credible evidence that demonstrated that he was well-versed in his country’s political situation and in his country’s political issues, and described how his former partner’s political party was adversarial to his own.

[28] However, the claimant’s evidence about his political activity, in the panel’s view, was more in support of allegations about his persecution on the grounds of his bisexuality rather than helping to establish that his political opinion, in their own right, were grounds for his persecution. The claimant’s political opinions are relevant inasmuch as they help explain how and why his previous partner, who is powerful and well-connected, exposed him to danger and persecution, but the claimant’s political opinions and their connection to a nexus ground are otherwise not sufficiently delineated to stand on their own as a grounds for persecution. Ultimately, the panel finds that the reason for the dispute between the claimant and his former partner is just as much grounded in his sexual identity as in his political opinion, and further analysis of his political opinion is not necessary.

[29] To be clear, however, the panel does not find that that the claimant’s evidence about his political activity undermined his credibility overall, just that his evidence on these grounds was not as central to his claim to protection as his sexual orientation.

Conclusion:

[30] The panel therefore finds that the claimant’s allegations about his membership in a particular social group have been, on a balance of probabilities, credibly established. His testimony about his relationships with men rang true, and his most recent relationship was corroborated by multiple text messages, as already referenced above.

[31] The panel therefore finds that on a balance of probabilities that the claimant’s subjective fear of persecution is both credible and that it poses an ongoing threat.

OBJECTIVE EVIDENCE:

[32] The claimant’s experience of persecution at the hands of his community and the state is not unique to him but is shared by the LGBTQ community in Nigeria at large. As Amnesty International has observed, “Human rights abuses continue to be committed against people suspected of engaging in same-sex relations or for having a non-conventional gender identity.”¹⁵ As such, the objective country evidence supports the claimant’s allegations that LGBTQ people are at a serious risk of persecution by the state, which criminalizes same sex relationships.

[33] Because same sex acts are criminalized in Nigeria, pursuant to the Nigerian Federal Criminal Code, anyone having physical relations with a member of the same sex is considered to be acting “against the order of nature,” and to be committing an “unnatural offence,” and is subject to a 14-year prison term. The Same Sex Marriage (Prohibition) Act also criminalizes same sex marriages and civil unions, as well as gay clubs, gay organizations, meeting of gay people, and the support of LGBT organizations. For example, anyone who supports or participates in pro-LGBT organizations is liable to a 10- year prison term.¹⁶

[34] Furthermore, while the Constitution of Nigeria “offers general legislative guarantees to the rights to life, privacy, association, assembly, dignity, and freedom of expression…. there is no legislation explicitly protecting sexual minorities from targeted violence or discrimination.”¹⁷ The situation of LGTBQ people is made even more difficult by their treatment by the police, who arrest LGBTQ on the basis of “physical appearances, or on other pretexts,” blackmail and extort them, and mistreat them in custody.¹⁸

[35] As the claimant himself has experienced by the attitude towards him and his family by his community, acceptance of LGBTQ people in Nigerian society is very low. According to a survey conducted as recently as in 2015, 87 percent of Nigerians “said that they would not be willing to accept a family member who is homosexual…. And 81 percent did not believe that homosexuals should have the same rights as other Nigerians.”¹⁹

[36] As one objective study has concluded, “The roles of discriminatory laws are evident in the forms of violence perpetrated by both state and non-state actors. Impunity is one of the driving forces of the continued violation of [LGBTQ] people in Nigeria. [LGBTQ] people find it extremely difficult to approach relevant government agencies for redress, for fear of stigma, more violence and discrimination…. Actions by non-state actors are further validated by the behaviour of state actors who also extort [LGBTQ] people by evoking fear of legal reprisal…. This is not surprising given the fact that these government institutions are often the perpetrators of harm themselves or act in collusion with non-state actors.”²⁰

[37] Overall, the panel finds that there is a well-documented basis for the claimant’s objective fear of persecution on the grounds of being a bisexual man.

STATE PROTECTION

[38] The principal claimant’s fear that, as a bisexual man, is without adequate state protection from homophobia is corroborated by the objective evidence. Not only does the objective evidence demonstrate that LGBTQ people are without adequate state protection, it also demonstrates that in many instances the state is itself a persecutor of LGBTQ people. As one objective report has observed, “The initiative for Equal Rights (TIER) noted in its annual report that ‘in 2017, there were several instances of mass arrests based on perceived sexual orientation… a number of cases of arbitrary arrests and unlawful detention were perpetrated by the police.”²¹

[39] Also, “Sources explained that sexual minorities tend not to file reports with authorities out of fear of reprisals from authorities… [S]exual minorities who report abuse or discrimination are ‘ridiculed’ by authorities…. The Amnesty International representative indicated that the judicial system is not effective in investigating crimes committed against sexual minorities and ‘[i]n most cases, crimes committed against sexual minorities are not even investigated, [and] vigilante group attacks are not often reported due to fear of repercussions and further stigmatization by law enforcement officers.”²² Furthermore, it has been noted by objective observers that “there is no government-supported helpline for sexual minorities who face violence.”²³

[40] Given the objective evidence of country conditions discussed above, as a bisexual man, the panel finds that adequate state protection would not be available to him.

INTERNAL FLIGHT ALTERNATIVE

[41] As the panel finds that an agent of persecution is the state by virtue of sexual minorities being criminalized, the panel finds that there is no place in Nigerian where the claimant could reside safely. The panel also notes that the claimant is politically active and likely well known within political circles, which increases the likelihood of him being discovered in an any internal flight alternative location, making it more dangerous for him to live anywhere in Nigeria. Therefore, there is no viable internal flight alternative for the claimant in his particular circumstances.

CONCLUSION

[42] The panel is persuaded that should the claimant return to Nigeria, he would face a serious possibility of persecution at the hands of the Nigerian community as well as agents of the state, namely the police. Based on the totality of the evidence, the panel finds that the claimant faces a serious possibility of persecution in Nigeria pursuant to section 96 of the IRPA.

[43] The claim for protection is therefore accepted.

(signed) Joseph Berkovits

12 January 2021

1 Guidelines issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act, IRB, Ottawa, November, 13, 1996

2 Exhibit 4, Minister’s Written Intervention

3 Exhibit 1, Package of information from the referring CBSA/IRCC.

4 Exhibit 4, Minister’s Written Intervention, p. 5

5 Exhibit 2, Basis of Claim Form, Narrative, paragraph 23

6 Exhibit 1, Package of information from the referring CBSA/IRCC.

7 Exhibit 1, “RIPC= Examining Officer Notes,” pp. 1-5

8 Ibid.

9 Guidelines issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act, IRB, Ottawa, November, 13, 1996, paragraph 7.4, np

10 Exhibit 5, Claimant Disclosure, p. 17, (photo of current partner), pp. 18-48, (Print-out of text messages between the claimant and his current partner). Exhibit 6, Claimant Disclosure, pp. 49-50, (Print out of text messages between the claimant and his current partner).

11 Exhibit 5, Claimant Disclosure, pp. 15-16, (photographs of bullet wound)

12 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 2.1, p. 39

13 Exhibit 5, Claimant Disclosure, pp. 10-14

14 Exhibit 7, Claimant Disclosure, p. 1, Party Membership Card

15 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 2.3, p. 22

16 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 1.3, p. 46

17 Ibid, p. 50

18 Ibid, p. 47

19 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 6.1, 5

20 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 6.9, p. 15.

21 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 612. P. 14

22 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020(, Item 6.11, p. 39

23 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 6.11, p. 48

Upcoming Events

Hybrid Seminar: Accessing Refugee Protection and the Digital Border: The Legal Implications of Passenger Name Record Exchanges