Categories
All Countries Peru

2020 RLLR 58

Citation: 2020 RLLR 58
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2020
Panel: Selena Eng
Counsel for the Claimant(s): Richard Addinall
Country: Peru
RPD Number: TB8-18682
ATIP Number: A-2021-00655
ATIP Pages: 000194-000198


DECISION

[1]       MEMBER: This is the decision of the claim of the principal claimant [XXX] in file number TB8-l8682. The claimant is a citizen of Peru and is claiming refugee protection pursuant to Section 96 and 97 and the Immigration and Refugee Protection Act.

[2]       The facts and evidence alleged in support of the claim are set out in the claimant’s respective Basis of Claim form. In summary, the claimant fears harm in Peru from his ex-partner on the basis of his sexual orientation as a gay man. I have determined that the claimant is a Convention refuge or a person in need of protection pursuant to Section 96 and subsection 97(1) of the IRPA.

[3]       In making this assessment, I have considered all the evidence, including the oral testimonies, the documentary evidence, and counsel’s submissions, and the documentary evidence.

[4]       The claimant arrived in Canada with a fraudulent [XXX] passport. The claimant testified that he paid a [XXX] smuggler for the documents to come to Canada, as it was easier to go through [XXX] than to apply for a [inaudible]. The claimant provided a Peru issued national identification card to verify his Peruvian identity when he entered Canada. I find the claimant’s testimony regarding his identity and how he was able to come to Canada to be credible. I find, on a balance of probabilities, that the claimant’s identity was established by the certified true copy of his Peru issued national identification card and accepts that the claimant is a citizen of Peru.

[5]       Regarding credibility, in the assessment of this claim, I have taken into consideration the Chairperson’s Guideline that deals with the assessment of claims from persons who are members of the LGBTQI community. They are also referred to as the SOGIE Guidelines. I find that the claimant testified in a straightforward fashion with regards to the central elements of the claim. I find that the claimant’s overall testimony was credible.

[6]       The claimant testified about identifying and living as a gay man in Peru. The claimant testified about meeting his ex-partner in [XXX] 2017, moving in together in [XXX] 2017, and about his partner becoming increasingly jealous, possessive and accusing him with being with other men, as well as beating him, especially when he was drunk. I also heard testimony regarding the partner’s harassment of the claimant at his workplace [XXX], and that a restraining order was obtained, that did not deter the ex­ partner from finding him at the [XXX].

[7]       The claimant testified about an incident on [XXX] 2018, when his ex-partner threw a stone at his head, opening up his skin, along with breaking a bottle over the head and also kicking and punching the claimant while threatening his life. The claimant testified about going to the hospital and obtaining treatment. He also filed a police report at the station and indicated the police made fun of him for deciding to become gay and told him to go back to his husband and cook for him. The claimant testified about the police telling him that they would investigate, but the claimant did not hear back from police despite following up a week later. The claimant testified about forcing his ex-partner to leave his apartment for good, around [XXX] 2018. The claimant testified about an incident where he was waiting at a bus stop on [XXX] 2018, when he was kidnapped by four men, including his ex-partner. The claimant was beaten, cut, and raped by his ex-partner and the men. The claimant testified that he woke up in a hospital and was advised that- by a nurse -that a lady had found him and brought him there. The claimant remained in hospital for two days, and did not return to his place of rental or his apartment unit when he left and, instead, he went to the home of the [XXX], where he worked, for help.

[8]       The claimant also testified about his ex-partner having many friends in the police force and being afraid to go to police.

[9]       The claimant testified that he was estranged from father and other family members, and that is the reason why he went to the couple that [XXX] for help. The claimant testified they assisted him with obtaining money and helping him to go to [XXX] to come to Canada, where he was told by his other gay friends that he could obtain protection.

[10]     The claimant went to [XXX] to obtain his travel documents before arriving in Canada to make a refugee claim.

[11]     Regarding the claimant’s supporting documents, he has provided several of them that are on file. A police report dated [XXX] 2018, noted that the claimant filed a corn plaint against his ex-partner, attacking him when he attempted to terminate their relationship due to the increase psychological and physical abuse. The report states that the claimant had punches to the face and kicks, a bottle being broken over his head, as well as threats from the ex-partner that he was going to kill him. The report noted that the claimant was brought to the hospital by ambulance. There was also a medical report indicating that the claimant was treated in an emergency unit for a [XXX], on [XXX] 2018. Another medical report notes that the claimant was treated on [XXX] 2018, for [XXX]. The claimant also provided letters from friends in Peru who attested to witnessing verbal and physical abuse against the claimant by his ex-partner. I find that the reports corroborate the claimant’s testimony regarding the threats and attacks by his ex-partner, and the medical treatment he received. I find that the claimant was attacked on more than one occasion and required medical treatment. I find that the claimant’s concerns were not addressed by police, and that the claimant has established his subjective fear of persecution in Peru.

[12]     Regarding the claimant’s identity as a gay man, I note that he had a daughter with a woman in Peru. The claimant testified he was very young when he had sex with woman one time, when they were both drinking and celebrating the end of school. The claimant testified he did not find out about his daughter until she was one-years old and has not had any contact with them since his daughter was four. The claimant testified about being attracted to men and only in relationships with men. The claimant provided a [XXX] report from a hospital, dated [XXX] 2018, which indicates he was experiencing [XXX], and [XXX] to his sexual orientation. The report notes that the claimant was receiving [XXX]. The claimant also provided letters from friends from Peru and Canada that speak to his sexual orientation as a gay man. The claimant also had newcomer orientation training record, dated [XXX] 2018, for the 519 Organization in Toronto, dedicated to advocacy inclusion for the LGBTQ communities in Toronto. I find that the claimant testified in a credible and straightforward manner, and accepts the claimant’s explanation as to why he had sexual relations with a woman which resulted in the birth of a daughter, despite identifying as a gay man and being attracted to men. I find that the claimant has established on a balance of probabilities that he is a gay man and that he has a subjective fear from his ex-partner in Peru.

[13]     Regarding the claimant’ s failure to claim refugee status in [XXX], the claimant was asked why he didn’t want to apply for refugee or more permanent status there. The claimant testified that it was his goal to come to Canada because he heard it was more friendly to the LGBTQI community, and that he only entered [XXX] to obtain the documents to come to Canada. Based on the evidence before me, I find that the claimant did not have permanent status in [XXX] and was only present in [XXX] as a transit to Canada. I do not find that the claimant’ s lack of applying for refugee status in [XXX] undermines the credibility of his claim. Regarding the objective basis and country conditions in Peru, I find that there is general, widespread corruption within the police and judiciary in Peru. The 2020 Freedom in the World report for Peru indicates that government corruption remains a critical problem in the country. The law enforcement authorities frequently investigate and persecute corruption allegations. On the issue of the application of the rule of law, the report found that the judiciary is perceived as one of the most corrupt institutions in the country. The report also found that constitutional guarantees of due process are also unevenly upheld.

[14]     With regards to country condition for LGBTI, or lesbian, gay, bisexual, transgender and intersex individuals, the United States Department of State’s Country Report on Human Rights Practices for 2019 for Peru, or the D-O-S report, DOS report, indicates that the law in Peru recognizes the right of individuals to file legal claims of discrimination based on sexual orientation or gender-identity. However, the DOS report noted that the government officials, non-government organizations, or NGOs, journalists and civil society leaders, reported widespread official and societal discrimination against the LGBTI persons in employment, housing, education and healthcare, based on sexual orientation or gender-identity. NGOs also reported an increase in forced or coerced conversion therapy in Peru.

[15]     Increasing LGBTI rights in Peru is also moving slowly. In the National Report 2017 submitted to the Human Rights Council for Peru, it was noted that the National Human Rights Plan for 2017 to 2021 was to include special protections to be included for LGBTI persons. It was noted that the national human rights coordinator that ail mention of protection on the grounds of sexual orientation and gender-identity have been removed from Peru’s National Plan for 2014 to 2016, despite LGBTI groups having participated in its preparation. The document notes that the new National Human Rights Plan for 2017 to 2020 was under consultation and there continued to be challenges with the coordination, implementation, monitoring and evaluation of plans.

[16]     The US DOS report also further indicates that NGOs continue to report that law enforcement authorities repeatedly fail to protect and often even violated the rights of LGBTI citizens. The United Nations Human Rights Council Compilation on Peru further cited concerns at reports of harassment and violent attacks, some of which had resulted in death against the lesbian, gay, bisexual and transgender community, by members of the national police, armed forces, municipal security patrols and prison officials. I find that there is objective basis for the claimant’s fear of his ex-partner as an individual belonging to the LGBTI community, and that he has a well-founded fear of persecution in Peru.

[17]     Regarding state protection, there is a presumption that countries are capable of protecting their citizens. The claimant bears a legal burden of rebutting the presumption that adequate state protection exists by educing clear and convincing evidence which satisfies on a balance of probabilities. I’ve reviewed the country conditions set out in the National Documentation Package and find that the claimant has rebutted the presumption of state protection with the evidence provided.

[18]     I find that, in the claimant’s circumstances, the state has not been willing or able to protect him. I find that the claimant’s ex-partner attacked the claimant causing injury that required hospital care. Despite the attack, I heard evidence that police did not take the claimant’ s complaint seriously, instead making fun of the claimant for being gay. I find that the police in this case had the information of the identity of the perpetrator, but nothing was done, even after the claimant followed up with police. The claimant’s ex-partner was not arrested or charged for the attack or the death threats against the claimant. I also heard evidence of the claimant’s ex-partner being able to continue to move freely in Peru. Subsequently, the claimant was attacked, threatened, and raped by his ex-partner and other men. I find that, on a balance of probabilities, that the claimant’s ex-partner has continued interest in the claimant and would continue to seek him out, should the claimant return to Peru. Based on the documentary evidence, there has been a Jack of effective implementation of protection for LGBTI individuals in Peru. I find that the documentation does not indicate protections to be adequate at the operational level for LGBTI individuals. I do not find the claimant’s return to Peru would allow him to obtain justice against his ex-partner, or the claimant would receive further protections or assistance from police, should he continue to face threats or attacks. The assumption that the claimant will be able to receive meaningful protection in Peru from the state is contradicted by the country conditions evidence. I am satisfied that the claimant has rebutted the presumption of state protection.

[19]     Regarding internal flight alternative, the question of whether an internal flight alternative exists is an integral part of the Convention refugee definition. It arises when a claimant, who otherwise meets all elements of the Convention refugee definition in his or her home area of the country, nevertheless, is not a Convention refugee because a person has an IFA elsewhere in that country. I find that the claimant’s ex­ partner is a violent person who has demonstrated continued interest in the claimant after their breakup, going so far as to kidnap him with additional friends to attack him, after they broke up. I also find the claimant testimony regarding his ex-partner’s ability to continue moving freely and threatening him in Peru, to be credible and supported by the evidence provided. I find that the claimant, as a gay man, would be vulnerable to persecution throughout Peru where homosexuality is condemned by society and the police. I also heard evidence of the claimant’s ex-partner has friends in the police force, and he would be able to pay bribes to locate the claimant wherever he went in Peru. I find that the issues with receiving protection from the state for LGBTI individuals, who are [inaudible] by police, appears to be present throughout Peru. As the claimant has rebutted the presumption of state protection and because the agent of persecution has shown motivation to continue to track the claimant, I do not find the claimant has a viable internal flight alternative in Peru.

[20]     In conclusion. I find that the claimant has established a serious possibility of persecution in Peru from his ex-partner and based on a Convention ground, namely his sexual orientation as a gay man, and I accept the claim.

———- REASONS CONCLUDED ———-

Categories
Albania All Countries

2020 RLLR 31

Citation: 2020 RLLR 31
Tribunal: Refugee Protection Division
Date of Decision: November 24, 2020
Panel: Paulina Gueller
Counsel for the Claimant(s): Jeffrey L Goldman
Country: Albania
RPD Number: TB9-04003
ATIP Number: A-2021-00655
ATIP Pages: 000001-000007


REASONS FOR DECISION

INTRODUCTION

Introduction

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

[2]       In rendering my reasons, I have considered the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

Allegations

[3]       The claimant alleges that he fears persecution by the police and his family because of his sexual orientation as a gay man.

[4]       The claimant’s allegations are set out in his Basis of claim form (BOC).1 In summary the claimant alleges that he realized that he was attracted to men at the age of 14. He had a relationship with his cousin. In [XXX] 2011 his maternal uncle found them and beat them. Both had to be hospitalized. While in the hospital police officer went to questioned them, but when he learnt that they were gays he spit on them and refused to take the report. After his uncle beat him, his father told him to leave the family home.

[5]       In [XXX] 2011 the claimant went to [XXX]. He applied for asylum, but it was denied. He was deported in [XXX] 2017. While in Albania, in [XXX] 2017 and [XXX] 2018, he was attacked by his cousins. The police hit him with a rubber baton in [XXX] 2017 when he told them the reason of his hospitalization.

[6]       The claimant tried to flee to Germany, but he was deported back to Albania. The claimant’s cousins kept looking for him, so with the help of a smuggler he got an [XXX] passport and came to Canada. He applied for asylum at the airport.

Decision

[7]       I find that the claimant is a Convention refugee, pursuant to section 96 of the IRPA, as there a serious possibility of persecution, should he return to Albania, on account of his membership to a particular social group as a gay man.

Identity

[8]       I find that the claimant’ s identity as a national of Albania is established by his testimony and the documents provided, namely his Albanian passport.2

Credibility

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

[10]     For example: I note that the claimant sought asylum in [XXX], but he alleges it was denied and he was deported back to Albania in 2017. The claimant was asked to produce the documents from his asylum claim in [XXX], but he stated that he was not able to obtain them. I find, on a balance of probabilities, that the claimant was deported in 2017 back to Albania. Therefore, on a balance of probabilities, I find that his claim was denied, otherwise he would have not been deported. Therefore, I find his explanation seems reasonable in his alleged circumstances, and therefore does not raise significant concerns with respect to subjective fear or credibility.

[11]     I also note that after the claimant was deported to Albania, he tried to leave the country again, but he was deported from Germany. I find on a balance of probabilities, that the claimant tried to flee Albania, because he feared persecution by his family. I find it reasonable in the claimant’ s personal circumstances and I accept his explanations.

[12]     In particular, the following evidence establishes the allegations set above: the claimant provided a letter from [XXX], a friend in Albania who helped him providing shelter when he was deported from [XXX]; a letter from his cousin in Toronto and a friend he met in the community of 519, both are testifying of the sexual orientation of the claimant as a gay person. Documents from 519 and photos from the Christmas party.

[13]     After reviewing the documents, I have no reason to doubt their authenticity.

[14]     For someone who had grown up in a society where being on the LGBT spectrum is treated with contempt, ridicule and by many as an abomination, I find the claimant’s testimony to be credible. He testified without any obvious embellishment and in a fluid, immediate way.

[15]     Therefore, I find, on a balance of probabilities, the claimant has a well-founded subjective fear of persecution in Albania and he established his core allegations of being a gay man.

[16]     I find that what the claimant fears constitutes persecution and that the persecution is linked to the Convention ground of his membership in a particular social group, as a gay man.

Objective basis

[17]     The independent research3 shows there are serious human rights issues for LGBTI persons in Albania. The law in Albania prohibits discrimination based on sexual orientation, including employment. However, the enforcement is considered generally weak. In addition, sexual orientation and gender identity are classes protected by the country’s hate law. Despite these formal laws, public officials made homophobic statements, and there have been numerous cases of physical and psychological violence made against LGBTI persons including minors. While the Commissioner for Protection from Discrimination (CPD) investigated four cases of alleged discrimination, and opened an additional investigation based on gender identity and sexual orientation, it is a very small effort in the face of the 421 cases reported. The report also states that the Ministry of Health and Social Protection initiated a fund to open a shelter for LGBTI people, which assisted only 16 persons since March. While the effort is acknowledged, it appears to be a very small step forward.

[18]     In it’s annual report the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), dedicated to LGBTI rights,4 reported on a growing number of LGBTI person, who have asked non-governmental organization’s (NGO) for help in obtaining information about seeking asylum in EU countries, the US and Canada, caused by bias-motivated speech, violence, due to hate crimes towards LGBTI persons, who have been physically assaulted, bullying in schools, vulnerability with respect to obtaining housing, employment, backlash in cultural life, discrimination in healthcare, and the absence of support to amend the Family Code, to allow gay marriage. There was improvement in freedom of assembly as the Pride Parade went smoothly, and the Festival of Diversity for Human Rights of LGBTI was supported by the Tirana Municipality, the Council of Europe, and the EU. The report shows that LGBTI persons advanced their agenda, politically, nevertheless this segment of society is “invisible and unprotected”.5

[19]     Referencing the social perceptions of Albanians, the Home Office reports6 that public visibility of LGBTI persons remains very low, even though individuals and activists have spoken up about their sexual orientation. It says that although the adoption of non-discrimination laws in 2010 have helped drastically, the topic is very present in the public debate. However, despite efforts to include LGBTI persons, homophobic sentiment remains high, and the “culture of heteronormativity and patriarchy is still pervasive”.7

[20]     The evidence also in the NDP does report societal violence against LGBT individuals, once again, starting with their families but also within society. While public communal violence against LGBT individuals is not as high in places like Tirana, given that there’s perhaps a greater understanding of rights in some ways in that city, the documentary evidence is clear that discrimination continues even in Tirana in things like, employment and housing and education.8

[21]     The NDP9 also established that individuals are not open about their sexual orientation or gender identity in the workplace out of fear of being fired or facing discrimination and that it also notes that discrimination in employment occurs and that individuals continue to have to hide their sexual orientation in the workplace and that there’ s also a noted rise, of LGBT youth having problem accessing housing given issues with discrimination10, as well as, not being able to live with their family. I find therefore that deep seated homophobia exists in Albania, which means that the claimant would not be able to find a viable internal flight alternative in Tirana, which is an area I questioned the claimant about.

[22]     Based on the country conditions evidence, your claim is objectively well founded.

[23]     Given that there are no serious credibility issues with respect to the claimant’s allegations, coupled with the documentary evidence set out above, I find that there is more than a mere possibility that the claimant would face persecution in society in general, on account of his sexual orientation.

State protection

[24]     I find that there is clear and convincing evidence before me that the state is unable or unwilling to provide you with adequate protection.

[25]     I find that it would be objectively unreasonable for the claimant to seek the protection of the state in light of his particular circumstances, as he has shown how he was unable to obtain police protection, because the police itself was de one ridiculing and beaten him. The independent research reports that “corruption is endemic in Albania” the report examines the causes, and attempts of the current government to address the situation, however “the public perception on the spread of corruption among top police officials has increased”, due examples given such as bribery, manipulation of evidence, etc.11

[26]     I also find that the claimant would not have adequate state protection in Albania given that some of the documentary evidence does speak about police officers continuing to be a source of the persecution and that they are themselves seen as agents of persecution by LGBT individuals in that, they ridicule. They don’t help and they sometimes themselves are perpetrators of violence.

[27]     Therefore, I find that this objective evidence not only establishes that there would not be adequate state protection for the claimant, but it’ s in line and consistent with his own experiences of what he has described of having been insulted and offered no assistance by the police officer who came to the hospital to interview him.

Conclusion

[28]     In light of the preceding, I conclude that the claimant is a Convention refugee, pursuant to section 96 of the IRPA. Accordingly, I accept this claim.

(signed)           Paulina Gueller

November 24, 2020

1 Exhibit 2
2 Exhibit 1
3 Exhibit 3 NDP for Albania (March 31, 2020).
4 Exhibit 3 NDP item 6.1
5 Ibid
6 Exhibit 3 NDP item 6.5
7 Ibid
8 Exhibit 3 item 1.8
9 Exhibit 3 item, 6.7
10 Exhibit 3, item 6.6
11 Exhibit 3 item 10.3

Categories
All Countries Ecuador

2020 RLLR 30

Citation: 2020 RLLR 30
Tribunal: Refugee Protection Division
Date of Decision: February 28, 2020
Panel: David Jones
Counsel for the Claimant(s): N/A
Country: Ecuador
RPD Number: VB9-06374
ATIP Number: A-2021-00540
ATIP Pages: 000182-0000186


DECISION

[1]       MEMBER: So, this is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada, for [XXX], from Ecuador, who is seeking refugee protection, pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act. I’ve also reviewed and applied both Chairpers- I’ve also reviewed and applied the Chairperson’s Guidelines on proceedings before the IRB involving Sexual Orientation and Gender-Gu- and Gender Identity and Expression.

Allegations

[2]       The sp- the specifics of the claim are set out in the narrative of the claimant’s Basis of Claim form. In summary, the claimant fears persecution from unknown individuals, if he were to return to Ecuador because he is gay. I’m not going to repeat in detail all the events that lead to the claimant to flee Ecuador, but I will note that, on [XXX], 2019, the claimant received his first threat on Instagram saying: they will get rid of all the gays in Ecuador. The claimant was visiting Utah at the time. On [XXX], 2019, the claimant received a phone call in Utah on his cell phone saying he’s being watched. On [XXX], 2019, the claimant’s cousin received a call that threatened the claimant. The claimant’s cousin reported this threat to the authorities in Ecuador. On [XXX], 2019, the claimant got an email with the details of his return flight from an email account that roughly translates to: [XXX]. On [XXX], 2019, the claimant returned to Ecuador, after changing his flight from [XXX] due to the threats. On [XXX], 2019, the claimant made a report to the police and the attorney general’s office. On [XXX], 2019, the claimant took a taxi home, after being out with friends and, after getting out of the taxi and walking towards his home, he does not remember anything else from that night. The claimant woke up the next morning and felt a burning sensation on his side, when lifted his shirt, he noticed the word “gay” had been burned into him. The claimant went to file a new complaint with the attorney general’s office, but he was told he should wait for them to call. The claimant shared his story on Facebook and it was picked by the media in Ecuador. On [XXX], 2019, after the claimant’s story was public, he received a call from the attorney general’s office asking for his statement. He was told the process would take two or three weeks, and he should stay home and wait for another call. The claimant decided to move to Quinto, the capital of Ecuador, for his safety. On [XXX] 2019, when in, while in Quinto, the claimant received another threat, and it also stated that they knew his new location; although it did not provide any details. The claimant decided to leave Ecuador on [XXX], 2019. The claimant left, oh sorry, on [XXX] 2019, the claimant left Ecuador and flew to Canada where he applied for refugee protection.

Determination

[3]       I find that the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act.

Analysis

Identity

[4]       The claimant’s identity as a citizen of Ecuador had been established by his Ecuadorian passport; located at Exhibit 1.

Nexus

[5]       The allegations establish a Nexus to a Convention ground for the claimant, based on his particular social group; namely as his sexual orientation as a gay man.

Credibility

[6]       I find that the claimant is a credible witness. In making that finding, I’m relying on a, the principle that a claimant who affirms to tell the truth creates a presumption of truthfulness, unless there are reasons to doubt their truthfulness. In this regard, the claimant testified in a consistent and straightforward manner that was consistent with his Basis of Claim form and supporting documents. The claimant was able to speak clearly about his previous relationships, his experience living in Ecuador as a gay man, and the threats he received. And he was also able to answer spe- the specific questions asked. There were no relevant inconsten- inconsistencies in his testimony of contradictions between his testimony and o- the other evidence. I find that the claimant is a credible witness. The claimant also provided documents to support his claim. For example, Exhibit 4 contains photographs showing the injuries the claimant received, copies of the threats he received, copies of the reports he made to authorities in Ecuador, and a news article about when he was assaulted. Exhibit 5 also contains examples of the threats the claimant’s received. I have not reason to doubt the genuineness of these documents and, since they related to the claimant’s sexual orientation and the abuse he received because of it, I find these documents support the claimant’ s allegations and overall claim.

[7]       While the claimant did return to Ecuador after receiving his first threat, the claimant testified he did not appreciate the risk he faced until he was back in Ecuador. I accept the claimant’s reasons for returning to Ecuador and for not making a claim in the United States, and I find that he claimant has a subjective fear of being persecuted if he were to return. As such, I find that the claimant has established, on a balance of probabilities, the fact alleged in his claim, including that the claimant is a gay man.

Objective Basis

[8]       The objective evidence is mixed when it comes to the country conditions regarding sexual orientation. The US Department of State report, at Item 2.1 in the National Documentation Package located at Exhibit 3, states that, and I quote, “the constitution includes a principle of non-discrimination and the right to decide one’s sexual orientation as a right. The law also prohibits hate-crimes. Although the law prohibits discrimination based on sexual-orientation; lesbian, gay, bisexual, transgender and intersect: LGBTI, persons continue to suffer discrimination from both public and private entities, particularly in education, employment, and access to healthcare. LGBTI organizations reported that transgender persons suffered more discriminations because they are more visible.” In addition, the report goes on to state, and I quote, “the government, lead by the ombudsman’s office, was generally responsible, responsive to concerns raised by the LGBTI community. Never the less, LGBI- LGBTI groups claimed police and prosecutors did not thoroughly investigate deaths of LGBTI individuals; including when there was suspicion that the killing motivated by anti-LGBTI bias.”, end quote. A report at Item 6.1 entitled, and I qu-: Ecuador LGBTI Landscape Analysis of Political, Economic and Social Conditions, indicates that, while Ecuador stands out amongst its neighbors for policies in favor of LGBTI rights, there is, and I quote, “a clear rift between legal rights and the lives of LGBTI people, and the lives LGBTI people truly live”, end quote. And the report goes on to indicate that, while violent crimes are an in, in a din- decline in general in Ecuador, LGBTI individuals face disproportionate levels of violence and abuse in public settings. The claimant also provided news articles to support his claim. Exhibit 4 and Exhibit 6, contain newspaper stories about the claimant’s own assault and the threats he received. The article found at Exhibit 6, contains information about another individual who received similar threats. This individual in an acquaintance of the claimant, and who is now living in Spain due to his fears in Ecuador. Based on the totality of the evidence, I find the claimant has established a well-founded fear of persecution if he were to return to Ecuador, by reason of his sexual orientation.

State Protection

[9]       With respect to state protection, a State is presumed capable of protecting its citizens and a claimant must establish, on a balance of probabilities, through clear and convincing evidence that a country’s protection is inadequate. Simply asserting a subjective belief that state protection is not an- is not enough to rebut this presumption. The more democratic the State’s insti- institutions, the more a claimant must do to exhaust the options available to him. As discussed below, I find the claimant has rebutted this presumption. While the objective evidence is mixed, it does support the claimant’s fears that there is no operationally effective state protection available to him in his particular circumstance. Report at Item 6.1, states that, and I quote, “in spite of legal advances, activists continue to document discrimination, abuse, and LGBTI activists complain of lack of enforcement are on the rise.”, end quote. That report goes on to state that, and I quote, “Ecuador has established many protections for LGBTI people. Whereas the reports on the ground lel- on the ground reveal the Jack of meaningful implementation keeps many members of the LGBTI community from fully accessing these rights”, end quote. Further, as noted above, Item 2.1, indicates that police and prosecutors do not thoroughly investigate violence against LGBTI individuals when it appears it was motivated by a hate-crime. This objective evidence is reflected in the claimant’s own experience. The claimant testified that he made five attempts to receive state protection, including with the police, the attorney general’s office, and the om- ombudsman. The complaints were made both before the attack, which is, which was in response to the threats he received, and after the attack. The claimant testified that, after he was attacked, he reported the attack to the police and the police officer told him that, next time, he should just relax and enjoy it. The claimant testified that he felt more vulnerable after contacting the authorities than he did before. The claimant followed up as recently as one month ago and was told there’s been no progress with his complaints. The claimant has also sought help from LGBTI organizations in Ecuador. I note that the claimant testified that, when he was at an LGBTI organization, he was shown a listing of other victims of violence due to their sexual orientation in Ecuador, and that list was described as being over ten pages long. I find that the claimant has made efforts to obtain protection from authorities in Ecuador and that there is no adequate state protection available to him.

Internal Flight Alternative

[10]     The test for an internal flight alternative is well-established. I must be satisfied that, one, the claimant would not be subject personally a danger of torture, or to a risk of, of life, or a risk cruel and unusual punishment, or face a serious possibility of persecution in the proposed internal flight alternative. And, two, that conditions in that part of the country are such that it would be objectionally reasonable in all of the circumstances, including those particular to the claimant, for him to seek refuge there. For the reasons below, I find the claimant does not have an internal flight alternative, as he would face a serious possibility of persecution anywhere in Ecuador. The issue of whether a city of Cuenca would be a viable alter- internal flight alternative for the claimant, was identified at the start of the hearing. With respect to the risk faced elsewhere in the country, the claimant testified that the first tried to escape harm by moving to Quinto, which is the furthest city in Ecuador from where he was living. The claimant described Quinto as the capital of Ecuador in every sense; including its cultural, liberal and financial capital. With a population of 3 million, the claimant felt he would be safe there. Shortly after arriving in Quinto, the claimant began to receive threats again. While the threats do not specifically identify where he was, they did refer to him changing cities and that they have located him. With respect to Cuenca, specifically the claimant testified that while the crime rate is low, he would be unable to live openly in Cuenca as it is a very religious city and dominated by macho culture. The claimant described how a gay man was recently murdered in Cuenca and his body dumped by the river with a bag over his head. The claimant further testified that he has visited Cuenca before with his partner and he is aware that there is no gay culture there. As an example of the risk faced in Cuenca, the claimant testified that he used a popular at- App for dating gay men in Cuenca, and none of the men displayed photographs of their faces. The objective evidence supports the claimant’s fears. In addition to what has been outlined above, a report at Item 6.3, notes that, and I quote, “in most of Ecuador, there’s a common view that religion must guide to those who are lost or struggling with sinful temptations, and that”, end quote. And that report goes on to state that, and I quote, “these beliefs are further incentivized religious and political debates that infiltrate families, reinforce the deep-rooted disfavouring of the LGBTQ community in Ecuador”, end quote. The claimant should not be required to hide his sexual orientation to be safe in an internal flight alternative. For the reasons above, I find that the claimant faces a serious possibility of persecution due to his sexual orientation in Cuenca and throughout Ecuador and, as such, there is no internal flight alternative available to him in the country.

Conclusion

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

———- REASONS CONCLUDED ———-

Categories
All Countries India

2020 RLLR 19

Citation: 2020 RLLR 19
Tribunal: Refugee Protection Division
Date of Decision: February 17, 2020
Panel: Marlene D.M. Hogarth
Counsel for the Claimant(s): Ian D Hamilton
Country: India
RPD Number: TB8-27230
ATIP Number: A-2021-00540
ATIP Pages: 000118-0000123


REASONS FOR DECISION

[1]       [XXX] is a citizen of India. He claims refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The claimant alleges the following.

[3]       The claimant was in a secret homosexual relationship with [XXX] from [XXX], 2013 until he left India in [XXX] 2018.

[4]       The claimant is afraid to return to India because the police learned of his homosexuality and informed his wife. She stated she would divorce him.

[5]       The claimant further fears returning to India because members of a political party want to kill him because he did not leave the ADMK party. The claimant fled to Malaysia in 2014 and worked there for two years. He returned to his village in [XXX] 2016 when he thought he would be safe.

[6]       In [XXX] 2016, the ADMK leadership asked him to begin recruiting new members as it was safe for him to work for the party. When the head of the ADMK died, the party split into two different groups. The claimant worked for one faction. [XXX], a member of the other faction, disrupted the claimant’s meeting and when the claimant refused to disband the meeting, he was hit on the head with a bat. [XXX] threatened his life and left.

[7]       The claimant moved to Ootty and worked there from [XXX] 2018 until [XXX] 2018. On [XXX], 2018, the police visited the claimant’s home looking for him. When he returned he was to go to the police station because [XXX] told the police that the claimant threatened his life and the police wanted to question him. The claimant’s wife advised the claimant not to return home as it was not safe.

[8]       The claimant found an agent who arranged a visa and the trip to Canada where he could ask for refugee protection.

[9]       The claimant left on [XXX], 2018 and claimed refugee protection on October 26, 2018.

[10]     After the claimant was in Canada, his friend [XXX], his secret gay lover in India, spoke out at a political meeting criticizing the party for abusing the claimant. [XXX] was arrested on [XXX], 2018 for committing hate crimes against the public. The police seized [XXX] cell phone and found compromising photos of the claimant and [XXX] together.

[11]     The police informed the claimant’s wife that her husband was engaged in homosexual activities and the police wanted to talk to him about it. The claimant left India to travel to Canada to make a claim for refugee protection on October 25, 2018.

DETERMINATION

[12]     The panel finds that the claimant is a Convention refugee according to section 96 of the Immigration and Refugee Protection Act.

[13]     Before making its decision, the panel took into consideration the SOGIE guideline 9.2

ANALYSIS

[14]     The issues are credibility, state protection and internal flight alternative.

Identity

[15]     The claimant’s identity as a citizen of India was established by his testimony and the certified copy of his passport, held by CBSA.3

Nexus

[16]     The claimant is afraid he will be killed by members of the splinter group of the ADMK party and he is afraid he will be harmed because he is a homosexual. The claim is based on political opinion and membership of a particular social group. Therefore, the claim will be assessed according to ss. 96 and 97(1) of IRPA.

[17]     The panel will analyze the claim for protection because the claimant is a homosexual.

Credibility

[18]     The claimant testified that when he married his wife, he considered it a love marriage, not one that was arranged. However, he began to fantasize about having a sexual relationship with a man. When he met [XXX], they began a relationship that lasted until the claimant came to Canada. The claimant had to hide his true sexual orientation as, at that time, it was against the law. This law was changed on September 6, 2018.

[19]     The claimant did not have problems in India because of his sexual orientation. He never revealed that he was gay except to [XXX], his partner in 2013. He lived “in the closet” and continued his relationship with [XXX] in secrecy while he continued his married life. His wife did not learn of his sexual orientation until the claimant was in Canada. She no longer speaks to him and has moved the family to her father’s home.

[20]     The claimant is afraid to go back to India and live his life as a gay man. The claimant testified that while living in Canada, he has learned that people accept his homosexuality and he can walk freely with his partner. He cannot do that if he returns to India.

[21]     The panel finds the claimant testified in a straight forward manner; there were no embellishments nor any attempts to exaggerate the allegations during the oral testimony. He testified that he does not consider himself bisexual; he is gay. He is only interested in men. The claimant noted that he has a partner whom he met when he was volunteering at the [XXX] 2019 Gay Pride Parade. They entered into a sexual relationship in [XXX] 2019 and have been together since then. His partner was at the hearing and acted as a witness. His partner’s sworn testimony confirmed the evidence given by the claimant. Therefore, the panel accepts that the claimant is gay and is presently in a homosexual relationship and finds the claimant to be a credible witness.

[22]     The law made it legal to be a homosexual in India in late 2018, however, according to the evidence, the general public have not accepted such relationships. The documentary evidence4 states, “Lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons faced physical attacks, rape and blackmail. LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas…” Some police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents. Further documentary evidence5 indicates that although a landmark decision was made by the Indian Supreme Court, the discrimination against people based on their sexual orientation has not ended. The Board’s evidence6 indicates, “[t]he attitude and behaviour of the police is one of the biggest barriers to queer person’ access to the justice system in India”. They suffer violence, abuse and harassment at the hands of police and police have refused to file complaints by queer persons. The panel finds that based on all of the evidence, the attitudes remain the same despite the change in the law. The laws might be in place and mechanisms of protection for homosexual persons, however, the panel finds that at this particular time they are not effective. Therefore, there is no state protection available and since the negative societal attitudes against homosexuals are prevalent throughout India there is no viable internal flight alternative available to the claimant at his particular time.

[23]     Therefore, the panel finds that based on the evidence, including counsel’s submissions, the claimant would face a serious possibility of persecution throughout India.

CONCLUSION

[24]     For the foregoing reasons, the panel concludes that the claimant is a Convention refugee pursuant to ss. 96 of the Immigration and Refugee Protection Act.

[25]     The Refugee Protection Division accepts his claim.

(signed)           Marlene D.M. Hogarth

February 17, 2020

1 Immigration and Refugee Protection Act, (S.C. 2001, c. 27).
2 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, May 2017
3 Exhibit 1
4 Exhibit 3; 2.1
5 Exhibit 3; 6.6
6 Exhibit 3; 6.1

Categories
All Countries Turkey

2020 RLLR 16

Citation: 2020 RLLR 16
Tribunal: Refugee Protection Division
Date of Decision: January 6, 2020
Panel: Jiyoung Kim
Counsel for the Claimant(s): Ashley Erin Fisch
Country: Turkey
RPD Number: TB8-24280
ATIP Number: A-2021-00540
ATIP Pages: 000107-0000110


DECISION

[1]       MEMBER: This is a decision for the claimant [XXX], file number TB8-24280. I have considered your testimony and other evidence in the case and I’m ready to render my decision orally.

[2]       You are claiming to be a citizen of Turkey and are claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I find that you are a Convention refugee for the following reasons.

[4]       For making this decision and in formulating questions for the hearing, I considered Chairperson’s Guideline 9 with regard to proceedings before the Immigration and Refuge-, Immigration and Refugee Board involving claims of sexual orientation and gender identity and expression.

[5]       You alleged the following. That you are a citizen of Turkey and that if you were to return, you will face persecution as a member in a particular social group which is your gender identity and sexual orientation. You alleged that there is no stat-, state protection for you or an internal flight alternative.

[6]       Your personal identity as a citizen of Turkey has been established by your oral testimony and supporting documents, including your passport and the national identification card. I find that, on the balance of probabilities, that identity and country of reference have been established.

[7]       I find that there is a link between your-, what you fear and one of the five Convention grounds, specifically particular social group, namely your gender identity. Therefore, I assessed your claim under Section 96.

[8]       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. Your testimony was straightforward and was largely in keeping with your Basis of Claim form. And there are no significant inconsistencies or omissions that went to the heart of the claim.

[9]       I therefore find the following to be credible. That you are a num-, queer non-binary person facing persecution in Turkey due to your gender identity and sexual orientation. Your oral testimony today included details regarding your aware-, awareness that you were different from other people. And then discovering and exploring the label for your gender identity.

[10]     You also provided details regarding your relationships with women and non-binary people in Turkey and in Canada. And the everyday discrimination and physical and psychological violence you’ve faced from the society in Turkey. You also provided details about your involvement with the LGBTQ+ organizations in Turkey and in Canada, such as being the [XXX] of the student group in Turkey. And the virus-, vari-, various involvement with groups in Toronto like the [XXX] and the [XXX].

[11]     You also provided documents in support of your testimony, that you are a queer non-binary person who has been active in LGBTQ+ communities in Turkey and in Canada. And a person who experienced violence and discriminations in Turkey. Those documents include letters of support from your friends in Turkey and in Toronto who have the knowledge of violent incidents you faced.  As well as your active involvement and advocacy work for your communities. As well as letters of support from your roommates, former partner and current partner.

[12]     You’ve also submitted letters from different LGBTQ+ focus organizations in Toronto and in Turkey, including the 519 and Supporting Our Youths, to name a few. You’ve also submitted Facebook messages and posts.

[13]     Your testimony and the supporting documentation all establish that you are a queer non-binary person who has been experiencing violence in Turkey due to their sexual orientation and gender identity.

[14]     The objective documentation supports your allegation that individuals in your circumstance face human rights abuse. Although there is no law that criminalize LGBTQ+ communities but the provisions of law on offense against public morality, protection of family and unnatural sexual behaviour are used as a basis for abuse according to National Documentation Package dated March 29th, 2019, Item 2.1.

[15]     Bans on LGBTQ+ events by the State officials in recent years has demonstrated in-, and National Documentation Package, Item 2.7 show that the LGBTQ+ communities and their members face discrimination and violence bail-, based on their sexual orientation and gender identity. Information in both the National Documentation Package and the country condition package submitted by the counsel in Exhibit 6 all corroborate the heightened level of violence against the LGBTQ+ communities and their rights by the State authorities.

[16]     In particular, the package provided inform-, package from the counsel provided information on the oppression on the student activists for LGBTQ+ rights, as well as the violence faced by transgender persons.

[17]     I therefore find that you have a well-founded fear of persecution. I find that adequate state protection would not be available to you if you were to seek it in Turkey. You testified that you never sought state protection because the State will be unwilling to protect you. And because the police were also the ones harassing you and targeting you. This is corroborated by the objective documentern-, documentary evidence. The objective documentary evidence indicates that in National Documenta-, Documentation Package, Item 1.14, that the government is unable or unwilling to protect vulnerable LGBTQ+ people from violence and discrimination.

[18]     Impunity for crimes against LGBTQ+ individuals continue to be reported as a problem. That according to NDP 21-, 2.1 there’s no state-, there’s no protection based on sexual orientation or gender identity on the criminal code. In light of the objective country documentation, I find that the claimant has rebutted the presumption of state protection.

[19]     Based on your personal scan-, circumstances as well as the objective country documentation, I find that the adequate state protection will not be available to you as the State will be unwilling and unable to protect you in Turkey.

[20]     As you have rebutted the presumption of state protection and since the country documentation indicates that the situation for individuals in circumstances suggests yours is the same throughout the country, I find that you do not have a viable internal flight alternative.

[21]     Based on the totality of evidence, I find that you have established that there is a serious possibility of persecution on a Convention ground, namely your membership in a particular social group as a queer non­binary person.

[22]     I therefore find that you are a Convention refugee and I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries India

2020 RLLR 8

Citation: 2020 RLLR 8
Tribunal: Refugee Protection Division
Date of Decision: June 25, 2020
Panel: Georgia Pagidas
Counsel for the Claimant(s): Odette Desjardins
Country: India
RPD Number: MB8-01694
Associated RPD Number(s): MB8-01304
ATIP Number: A-2021-00540
ATIP Pages: 000050-000059


REASONS FOR DECISION

DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division (the Panel) in the claim for refugee protection of [XXX] (“the Principal Claimant”) and his partner [XXX] (“the Co­ Claimant”), both citizens of India. The Claimants are seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).1

[2]       In deciding this claim, the Panel applied the Chairperson’s Guideline 9 on Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.2

DETERMINATION

[3]       The Panel finds that the Claimants are “Convention refugees” pursuant to section 96 of the Act and accepts their claims, for the following reasons.

ALLEGATIONS

[4]       The Claimants’ allegations are detailed in their Basis of Claim (BOC) forms, their narratives3 annexed thereto which are identical in substance and only adjusted to the first person where applicable, and their statement update. The following is a summary of the allegations therein.

[5]       The Principal Claimant is from [XXX], in the state of Haryana, India. The Co-Claimant is from [XXX], in the state of Haryana, India. They allege that they are and have been in a same-sex relationship since [XXX] 2014. They fear returning to India because of their sexual orientation.

[6]       They were arrested by the police and were released on the payment of bribes with warnings to never be together again.

[7]       They fear that, should they return to India, they will be arrested and abused, and possibly killed by the police, society or their respective parents who are all against them.

ANALYSIS

Identity

[8]       The Claimants’ personal and national identity as citizens of India are established, on a balance of probabilities, by the documentary evidence on file, including a copy of their Indian passports.4

Nexus

[9]       The Claimants’ allegations establish a nexus to a Convention ground of particular social group, specifically homosexual men. The Panel has, therefore, analyzed the claim pursuant to section 96 of the Act.

Credibility

[10]     Testimony given under oath is presumed to be true unless there is a reason for doubting its truthfulness. In this claim, the Panel has no such reasons.

[11]     The testimony of the Claimants was straightforward, detailed, and sincere. The Claimants were spontaneous in their answers, and the Panel did not find that they tried to embellish their allegations during their testimony. The Claimants answered clearly and openly to the questions that were asked by the Panel and their counsel. Their allegations were coherent and plausible based on the documentary evidence.

[12]     The Panel found the Claimants to be credible as analyzed in the examples hereinafter.

Testimony of Principal Claimant

Discovery of Sexual Orientation and First Relationship

[13]     When asked about his discovery of his sexual orientation, the Principal Claimant was able to provide a great deal of detail about how he saw himself growing up. He explained that from the age of 14, he realized that he was different when he compared himself to other boys. For instance, the boys in his class only wanted to talk about girls during the lunch break. He testified that, “from inside he preferred men more and he was afraid why he felt like that (sic)”. Asked if any of the boys in school knew about how he felt he replied, “those kinds of things were not spoken about (sic)”.

[14]     The Claimant testified that his first intimate same-sex relationship was with the Co­ Claimant. He testified that prior to that he would just hang around men, talking closely to them and “sometimes touching”. He testified that it was only when he met the Co-Claimant in the beginning of [XXX] 2014 that he felt he could have a full relationship with another man.

[15]     He testified that they met while playing [XXX]. They exchanged eye contact, but it was only the day after when the coach called them in for a briefing that the Co-Claimant approached him, asked for his name and told him, “your game is as good as how good you look (sic)”. They started talking; he enjoyed that and found him very wise. The Principal Claimant took the Panel through the development of his relationship with the Co-Claimant, which started with a friendship, playing [XXX] and training together, then three weeks later came the intimacy and the emotional commitment.

[16]     When asked how he and the Co-Claimant spent their time together, the Claimant testified that most of the time they stayed in the Co-Claimant’s room; sometimes they would go very far to a neighbouring village 20 kilometres away from theirs. Otherwise, they did not go out very much because they were afraid someone would see them and they did not know of places where other gay men socialized, because it was considered a sin. He added that when they did go out, they did not hold hands nor look each other in the eyes so as not to raise suspicion.

Testimony of the Co-Claimant

[17]     The Panel also asked the Co-Claimant numerous questions about his sexual orientation and his relationship with the Principal Claimant. He answered all questions clearly and without hesitation. He described his relationship with the Principal Claimant in a spontaneous manner. When asked what drew him to the Principal Claimant, he said he liked his eyes and he was a nice person. When asked what were his expectations from this relationship, he testified that they already lived together and in future they want to marry, get a house and live a good life. The Panel saw glimmers of emotion and happiness as he was testifying about his relationship.

[18]     When asked what would happen to him should he return to India, he testified that he came to Canada to save his life. If he returns to India, he knows about the law, but society doesn’t change and police are corrupt: the next time they arrest the Claimants, they will formally issue a summons and they will have to pay even more money to be released.

[19]     The Panel finds that the amount of detail provided by the Co-Claimant could only be provided by a man who is genuinely in a relationship with another man and who lived these experiences. There was coherency to the Claimants’ oral testimonies that demonstrated the Claimants’ credibility. There were no discrepancies between the Claimants’ testimonies and their BOCs, nor were there any relevant omissions. As a result, the Panel finds that, on a balance of probabilities, the Claimants are credible with respect to their same-sex relationship.

Incidents

[20]     When asked about the one event that made them fear for their life and leave India, the Principal Claimant testified that it was on [XXX], 2016, when a police officer “caught them red-handed (sic)”. The Panel asked the Principal Claimant to explain what he meant. He provided the Panel with tremendous amount of detail about the incident and its aftermath. He explained that the police officer was a neighbour of his with whom he shared a common wall. He testified that the Co-Claimant often came to visit him and he would take precautions by ensuring that the police officer was at work and by locking his door. On that particular day, the officer came home very early: “it was roughly 12h30pm and he saw that the Principal Claimant’s door was ajar (sic)”, and he walked in and saw the Claimants together in an intimate position.

[21]     The Panel asked how the police officer could access his room apartment. The Principal Claimant was able to situate the Panel by describing the layout of the two apartments and their proximity. When asked how the police officer reacted, he testified that he started to beat them with his baton. He specified that most police officers are not in uniform, but they always have their baton with them which is what he beat them with.

[22]     The Panel asked if the Claimants were arrested by the officer. The Principal Claimant replied “no”, but added that he did not allow them to leave and he called other policemen who came and took them to the police station. When asked what happened at the station, he testified in a sincere and open manner without hesitating or exaggeration. He confirmed the allegations in the BOC narrative. He explained that he was separated from the Co-Claimant and was tortured by the police, with the village Panchayat present who insisted that the police teach him a lesson. He got released on payment of a bribe by his father. Then 84 villagers got together and took the decision to take his life, “because they have the authority (sic)”. His family blamed the Co-Claimant for enticing their son.

[23]     When asked about his fear, the Principal Claimant was spontaneous and sincere in expressing to the Panel his feelings of fear ever since these incidents occurred. He added that his fear is ongoing despite the fact that he is in Canada, because the Panchayat is a member of the 84 Khap Panchayat and his [XXX], with whom he is still in touch and who lives in another village, informed him that the members of the Khap Panchayat and the police are looking for him all around.

[24]     The Panel notes that the Principal Claimant was very emotional and shaking when describing the aforesaid incidents. The Panel noted that the Co-Claimant extended his hand to provide him with support and he explained to the Panel that the Principal Claimant has still not been able to overcome these traumatic experiences and is being followed by a physician for stress. The Panel noted a tenderness and deep caring in the Co-Claimant’ s testimony and action of support which is a further testament to the realness of the Claimants’ relationship.

[25]     Overall, the Claimants’ ability to provide so much detail on the allegations already contained in their BOCs leads the Panel to conclude that they genuinely experienced all the above incidents.

[26]     There was an openness and spontaneity to the Claimants’ testimonies that demonstrated the Claimants’ credibility. There were no relevant inconsistencies between their narratives in their BOCs and their testimonies at the hearing that were not reasonably explained.

[27]     As a result, the Panel finds, on a balance of probabilities, that the Claimants are credible with respect to the aforementioned incidents and the resulting difficulties they experienced.

[28]     Given the objective country evidence hereinafter discussed, the Panel finds that their fear is objectively well-founded.

Corroborating Documentary Evidence

[29]     The Claimants provided documentation corroborating their allegations, the most important of which are an order issued by the village Panchayat to kill the Principal Claimant5, an order issued by the village Panchayat to socially boycott the Principal Claimant and his family6, a letter of support by [XXX]7, the Claimants’ gay friend with first-hand knowledge of their relationship, numerous pictures8 of the Claimants alone in personal moments, in gay clubs with their gay friend [XXX] and others, and at home together with friends celebrating their birthdays, and a medical certificate and prescription for stress from the Principal Claimant’s physician, submitted post-hearing and accepted by the Panel.9

[30]     For the aforementioned reasons, the Panel finds that the Claimants have established their allegations, on a balance of probabilities.

State Protection

[31]     The Panel finds that the Claimants have rebutted the presumption of state protection with clear and convincing evidence that the Indian state would be unwilling or unable to provide them with adequate protection. The Panel took into account the substantial documentary evidence from independent and reliable sources on the situation in this country from the National Documentation Package for India.10

[32]     The Panel recognizes that the documentary evidence reports11 that same-sex consensual relations were decriminalized in India, in September 2018, when the Supreme Court declared that Section 377 of the Penal Code was unconstitutional. The evidence reports12 that the decriminalization of same-sex conduct will not immediately result in full equality for the LGBT community in India. While the Supreme Court judgment held that the aforesaid reading down of Section 377 shall not lead to the reopening of any concluded prosecutions, the documentary evidence reports that it is too early to draw any conclusions for pending arrests.

[33]     The orders by the Khap Panchayat against the Principal Claimant and the Claimants’ arrests occurred prior to the Court decision, and the Claimants’ names are still on file with the police. Furthermore, the documentary evidence13 confirms that violence, abuse and harassment   of homosexuals suffered at the hands of the police still exist throughout India and the Panel therefore finds that the claimants would be at risk.

[34]     Moreover, the objective evidence on the powers of Panchayats and Sarpanches14 confirms that though it is the “responsibility of a district-level bureaucrat who is appointed from above” to work in close cooperation with the police, “if, however, a sarpanch has acquired considerable informal power and influence, then she or he may in practice strongly influence the behaviour of the police”.

[35]     Further, according to objective evidence, corruption remained a significant problem within the Indian police force15 as confirmed by the credible evidence of the Claimants that they had to pay the police bribes to be released.

[36]     Under the above circumstances, the Panel finds that the police would not protect the Claimants, on a balance of probabilities. Moreover, the Claimants would be putting their lives and physical security in danger by even approaching the authorities to ask for protection.

Internal Flight Alternative (IFA)

[37]     The Panel proposed Mumbai as a possible IFA for the Claimants.

[38]     The Panel finds that the Claimants have established that, on a balance of probabilities, they face a serious possibility of persecution in Mumbai. The Panel therefore finds that there is no viable IFA for the Claimants in India.

[39]     The Claimants are both persons of interest and known to the police through their arrests and the orders of the Khap Panchayat. While the evidence does confirm there is no national police16 in India, the police do have the ability to track people through the “Criminal Tracking Network and Systems” (CCTNS) database, which is shared by 36 out of 37 states, and is enabled in 13,439 out of 15,398 police stations.17 The Principal Claimant’s credible testimony is that the police and the members of the Khap Panchayat are still looking for him.

[40]     Moreover, the documentary evidence18 reports that tenant registration is existent in Mumbai. The evidence specifies that the purpose of tenant registration is not only for the authorities to confirm that tenants are not wanted criminals, terrorists or fugitives from the law, but also “to get a history of the person”.19

[41]     Furthermore, both Claimants were firm about their fear of being beaten, humiliated, harassed and sexually attacked by the police, society and their families should they return to live in India. They testified that they would have to live in hiding. Their fear is confirmed by the above cited evidence and the citation below20, which confirms that there is still violence and discrimination by members of the community against persons who are homosexual:

“Stereotypes about the LGBT community are widespread and pervasive, and it is these stereotypical perceptions which are responsible of the hatred, violence and discrimination which LGBT persons face on a day to day basis”.

[42]     In addition to the aforementioned, it is well established in law that the possibility of IFA is not viable if the person has to live in hiding.

[43]     In view of all these particular circumstances, the Panel concludes that the Claimants would face a serious possibility of persecution should they return to India and live in Mumbai or any part of the country.

[44]     Given that the first prong of the IFA test has not been met, there is no need to consider the second prong. The Panel, therefore, finds that there is no viable IFA for the Claimants in India.

CONCLUSION

[45]     For the foregoing reasons, the Panel concludes that there is a serious possibility that the Claimants would be persecuted on the basis of their membership in a particular social group, namely homosexual men, in the event they return to India.

[46]     The Panel finds that [XXX] and [XXX] are “Convention refugees” and therefore accepts their claims.

(signed)           Georgia Pagidas

June 25, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.
2 Chairperson’s Guideline 9 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017.
3 Document 2 – Basis of Claim Form (BOC); Document 4 – Exhibit C-1: Updated statement.
4 Document 1 – Package of information from the referring Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC): Passports.
5 Document 4 – Exhibit C-2: Order to kill issued by Village Panchayat [XXX] (Haryana).
6 Document 4 – Exhibit C-3: Order to socially boycott issued by Village Panchayat [XXX]
(Haryana).
7 Document 4 – Exhibit C-4: Letter of support by [XXX].
8 Document 4 – Exhibit C-5: Pictures, in bulk.
9 Document 4 – Exhibit C-9: Medical certificate and prescription for stress from Principal Claimant’s physician.
10 Document 3 – National Documentation Package, India, 31 May 2019 (NDP India), tab 6.1: Response to Information Request, IND106287.E, Immigration and Refugee Board of Canada, 9 May 2019.
11 Document 3 – NDP India, tab 6.6: Country Policy and Information Note. India: Sexual orientation and gender expression. Version 3.0, United Kingdom, Home Office, October 2018.
12 Ibid.
13 Supra, note 10.
14 Document 3 – NDP India, tab 9.4: Response to Information Request, IND102791.E, Immigration and Refugee Board of Canada, 17 April 2008.
15 Document 3 – NDP India, tab 10.10: Country Policy and Information Note. India: Actors of Protection. Version 1.0, United Kingdom, Home Office, January 2019: paras 4.1.1 and 5.2.5.
16 Supra, note 11, para 4.4.1.
17 Document 3 – NDP India, tab 14.8: Response to Information Request, IND106289.E, Immigration and Refugee Board of Canada, 14 May 2019
18 Ibid.
19 Ibid.
20 Document 3 – NDP India, tab 6.2: Decriminalising the Right to Love: Navtej Singh Johar v. Union of India. State-Sponsored Homophobia 2019. 13th Edition, International Lesbian, Gay, Bisexual, Trans and Intersex Association, Arvind Narrain, March 2019.

Categories
All Countries Zimbabwe

2019 RLLR 146

Citation: 2019 RLLR 146
Tribunal: Refugee Protection Division
Date of Decision: March 22, 2019
Panel: Harvey Savage
Counsel for the Claimant(s): Victoria A Bruyn
Country: Zimbabwe
RPD Number: TB8-12629
ATIP Number: A-2021-00256
ATIP Pages: 0000168-000172


REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision for [XXX] and [XXX] who claim to be citizens of Zimbabwe, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

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

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

ALLEGATIONS

[4]       You allege the following: You have identified as having a same sex preference from a young age. You had several relationships with women, and the most serious one was with [XXX]. She was with you when the father of your son entered an eating establishment and verbally assaulted you because of your sexual preference. Shortly after, you and [XXX] both became members of Gays and Lesbians in Zimbabwe (GALZ). At the end of January 2018, that same person, [XXX] came to your house and forced you to perform oral sex on him. He was violent with you. You did not report this to police because you feared being arrested because of your sexual orientation. After you were terminated from your employment in April 2018, due you feared because of your sexual orientation, you left Zimbabwe fearing continued persecution and eventually entered Canada from the United States. You were also fleeing from [XXX] whose father raped your sister in Zimbabwe. [XXX] father is also the nephew of [XXX] was threatening you to produce your sister, and unbeknownst to him, she had fled to Canada where she made a successful refugee claim. You fear not only for yourself but for your son who is a co-claimant because if he returns to Zimbabwe he will face the wrath of both [XXX] because of you and your identity as a lesbian, and you will not be able to protect him.

DETERMINATION

[5]       I find that you are Convention refugees as you have established a serious possibility of persecution should you return to Zimbabwe based on the grounds in section 96.

ANALYSIS

Identity

[6]       I find that your identities as nationals of Zimbabwe are established by the documents provided: passports and birth certificates.

Nexus

[7]       I find that you have established a nexus to section 96 by reason of your membership in a particular social group, a lesbian in Zimbabwe.

[8]       Based on the documents in the file, and the testimony at this hearing I have noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above. Your sister [XXX] whom you mentioned in your narrative, was a witness at today’s hearing and she confirmed many aspects of your claim. In particular, she confirmed your sexual orientation as a lesbian, your various relationships while she was still living in Zimbabwe, and her agent of persecution, [XXX] who plays a central role in why you fear returning to Zimbabwe. I found her testimony credible.

[9]       I further considered the letter from [XXX] with whom you had a relationship in Zimbabwe and she confirmed the events with [XXX] which culminated in your decision to flee Zimbabwe with your son and various other written correspondence including from your mother. I also note your attested to membership in the GALZ organization. After reviewing the documents, I have no reasons to doubt their authenticity.

[10]     I have also considered the evidence of bullying and harassment experienced by your son when word spread that his mother is someone perceived as gay.

Objective basis of future risk

[11]     Based on the credibility of your allegations, and the documentary evidence set out below, I find that you have established a future risk that you will be subjected to the following harm: retribution by violent assaults and inability to obtain adequate state protection.

[12]     The fact that you face this risk is corroborated by the following documents: National Documentation Package (NDP) for Zimbabwe – June 29, 2018, items 1.4, 2.6, 6.2 and 6.3, as well as, Exhibit 5.

Nature of the harm

[13]     This harm clearly amounts to persecution.

Internal flight alternative

[14]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Zimbabwe. Anti-gay legislation criminalizing same sex relations is operative throughout Zimbabwe and carries a maximum penalty of three years.

[15]     On the evidence before me, I find that it is not objectively reasonable, in all the circumstances, including those particular to you, for you to seek refuge in Zimbabwe for the following reasons. Anti-gay legislation criminalizing same sex relations is operative throughout Zimbabwe and carries a maximum penalty of three years.

CONCLUSION

[16]     Based on the analysis above, I conclude that you are convention refugees. Accordingly, I accept your claims.

(signed)           Harvey Savage

March 22, 2019

Categories
All Countries Uganda

2019 RLLR 145

Citation: 2019 RLLR 145
Tribunal: Refugee Protection Division
Date of Decision: January 8, 2019
Panel: S. Charow
Counsel for the Claimant(s): Jonathan E Fedder
Country: Uganda 
RPD Number: TB8-04402
ATIP Number: A-2021-00256
ATIP Pages: 0000164-000167


DECISION

[1]       MEMBER: This is the decision for [XXX] File TB8-04402. I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. In making this decision, I have considered the guidelines for sexual orientation.

[2]       You are claiming to be a citizen of Uganda and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I find that you are a Convention refugee for the following reasons.

[4]       The allegations of your claim can be found in your Basis of Claim Form at Exhibit 2. In short, you allege persecution as a member of a particular social group, namely that you are in danger of being harmed because of your identity as a gay Ugandan man as same-sex sexual activity has been criminalised in Uganda.

[5]       You fear both the police and your community as you have alleged that you have been previously sought by the police after being attacked by a homophobic mob.

[6]       Your personal identity as a citizen of Uganda has been established by your Ugandan passport. I therefore find on a balance of probabilities your identity and country of reference have been established.

[7]       In terms of your general credibility, I have found you to be a very credible witness, and I therefore accept what you have alleged in your oral testimony and in your Basis of Claim form. You testified in a straightforward manner about your fears without any embellishment, and there were no inconsistencies that went to the core of the claim that were not explained.

[8]       Your testimony was spontaneous including being able to provide details about how you first began to understand your sexual orientation as a youth. You were able to give specific detailed testimony about your emotions and the difficulties you face keeping your feelings a secret after seeing homophobic reactions from the community, your school, your church and your family.

[9]       You gave extremely detailed testimony about your current partner [XXX] (PH), including how the relationship developed, what attracted you to [XXX] (PH), and how you were able to keep your relationship a secret as a whole. Your testimony regarding how your sexual orientation was exposed was also descriptive, consistent and in line with the documentary evidence you provided.

[10]     As well today, you showed me that you have been in ongoing contact with [XXX] (PH) since you came to Canada, and you were able to show me your communication with him after he had fled to a remote village in Uganda. You showed me your messages on WhatsApp on your phone dating back to February 2018 shortly after you had left Uganda.

[11]     When reading through the months and months and months worth of messages, I noted that you both refer to each other with terms of endearment and that the messages were varied, plentiful and continuous up to this time. I saw that he had wished you luck on your hearing today.

[12]     I find that the messages that you showed me were authentic as I saw them on your phone, and I saw how far back they dated and overall consistent with the nature of the relationship that you have alleged.

[13]     As well in support of your claim, you provided documentary evidence. I note a medical assessment completed here in Canada, which states that you have injuries consistent with the assault that you had alleged in Uganda. I noted a detailed letter from your same-sex partner, again, very detailed, consistent with your allegations and very much in line with the nature of the relationship that you alleged.

[14]     I noticed that you provided photographs of you and your same-sex partner as well as a letter from your uncle, the person who helped you escape Uganda and who provided support for you while you were in hiding. As well, I see that you have provided confirmation of money transfers showing that you have been sending money to your same-sex partner in Uganda. These documents can be found in Exhibit 6 through 8.

[15]     I am therefore satisfied that the events have occurred as alleged and that you would face persecution at the hands of either the Ugandan government or your community should you return to Uganda. I find that you have established your subjective fear.

[16]     I find that there is a link between what you fear and one of the five Convention grounds, specifically that as a gay man you are a member of a particular social group because of your sexual orientation. Therefore, your claim has been assessed under Section 96 of the Immigration and Refugee Protection Act.

[17]     I further find that you have an objective basis for your fear because of the documented conditions for Uganda as per the evidence in Exhibit 3, which is the National Documentation Package for Uganda. I specifically note Item 6.1 which states that Ugandan law criminalises same sex sexual acts. The law in Uganda further restricts the access of sexually nonconforming individuals to protections against discrimination that are available to other Ugandans.

[18]     I also note that there is further criminalisation of same sex activity under the Penal Code which prohibits unnatural offences and acts of gross indecency, and that homosexuality is rejected by most Ugandans on the basis of tradition, culture, religion and moral values. Many in Uganda perceive homosexuality as “un-African and un-Christian” or inspired by western practices, and it is also presented in connection to wider threats to “authentic” African values and traditions.

[19]     Therefore, in considering all of this information, I find that your subjective fear has an objective basis. I find that you have a well-founded fear of persecution due to your sexual orientation.

[20]     I further find that Stare protection would not be reasonably forthcoming in your case as per the evidence already discussed. As per Item 6.1 of the National Documentation Package at Exhibit 3, same­sex sexual activities are criminalised. The same Item also notes that many people who identify as a sexual minority are often unable to receive police protection from abuse by non-State actors for fear of being arrested or ignored or further abused. As such. I find that there is clear and convincing evidence that State protection would not be available to you nor would it be reasonable for you to seek such protection.

[21]     Given the conditions discussed, I further find that there would be a serious possibility of persecution anywhere in Uganda as homosexuality is criminalised throughout the country and societal attitudes as discussed are consistently homophobic throughout the country.

[22]     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 anywhere in Uganda.

[23]     Based on the totality of the evidence, I find the claimant to be a Convention refugee. Your claim is therefore accepted.

[24]     So, this will conclude today’s hearing. I would like to thank everyone for their participation.

[25]     Thank you, sir. Thank you counsel.

[26]     COUNSEL: Thank you madam member.

—REASONS CONCLUDED—

Categories
All Countries Indonesia

2019 RLLR 144

Citation: 2019 RLLR 144
Tribunal: Refugee Protection Division
Date of Decision: March 26, 2019
Panel: S. Bardai
Counsel for the Claimant(s): Adrienne C Smith
Country: Indonesia 
RPD Number: TB6-03152
ATIP Number: A-2021-00256
ATIP Pages: 0000158-000163


ACO RECOMMENDATION

[1]        The claimants’ allegations are as set out in their Basis of Claim Forms (BOCs ).1 In summary, they allege a fear of persecution at the hands of the Indonesian Government and society on the basis of their sexual orientation and HIV-positive status. The claimants state that they were in a same-sex relationship prior to their arrival in Canada and that on [XXX] they married each other in Toronto, Ontario.

[2]       The original hearing of this claim was held on February 7, 2018 where the claim was reserved for a decision. The Member recused herself from the claim March 1, 2018 and was therefore unable to render a final decision on the claim. On February 12, 2019 the RPD sent a letter to Counsel and the Claimants, giving them the option to conduct a new hearing or assign a new Panel to render a decision, relying on the claimant’s testimony from the February 7, 2018 hearing and the documents already on file. Counsel responded on February 12, 2019, requesting that the RPO make a decision based on the evidence provided at the original RPD hearing. She has also made an application for additional post-hearing disclosure pursuant to RPD Rule 50. This disclosure was accepted and added as Exhibit 10.

ANALYSIS

Identity

[3]       With respect to identity, the claimants have submitted their Indonesian passports to Immigration, Refugees and Citizenship Canada (IRCC) officials upon making their claim.2

[4]       In support of their sexual identity, the claimants have provided a substantial amount of evidence including their Ontario marriage license, certificate of marriage, personal photographs and letters of support from friends in Indonesia, in addition to their testimony.3

[5]       In support of their identity as HIV-positive individuals, the claimants have provided a letter from [XXX] of Regent Park Community Health Centre who states that both Mr. [XXX] and Mr. [XXX] are infected with HIV and that they are both currently on medication to treat the infection. In further support, they have provided letters of support from the Toronto People with AIDS Foundation, Asian Community Aids Services and from [XXX] a Public Health Nurse with Toronto Public Health.4

Credibility

[6]       I have reviewed the claimant’s evidence including their BOCs, Port of Entry notes, the documentation provided in support of their claim by counsel and the recording of the hearing held on February 7, 2018. I have also reviewed country condition documentation contained in the Immigration and Refugee Board of Canada’s National Documentation Package (NDP)5 for Indonesia. The claimants’ evidence was detailed, consistent and there did not appear to be any serious credibility issues that arose from the documents in the file on a balance of probabilities. Their testimony at the hearing appeared sincere and credible. The Member at the original hearing accepted their profile as individuals in a same-sex relationship and there does not appear to be any evidence before me to the contrary.

Well-founded Fear of Persecution on a Convention ground:

Race

Nationality

Religion

X         Particular Social Group

Political Opinion

[7]       The documentary evidence supports the allegations noted by the claimants. It is well documented that while homosexuality is not criminalized in Indonesia, the rights of LGBT groups have come under attack in 2016 which stemmed from a comment made by the Minister of Higher Education, Muhammad Nasir on January 24, 2016 about how he wanted to ban LGBT student organizations from university campuses.” Since this comment, mass religious groups and NGOs joined the rhetoric; psychiatrists proclaimed same-sex sexual orientation and transgender identities as ··mental illnesses”; the country’ s largest Muslim organization called for criminalization of LGBT behaviors and activism and forced “rehabilitation” for LGBT people. The repercussions continue to be felt by LGBT people in Indonesia.7

[8]       According to Human Rights Watch, more recently the Indonesian Government publicly called for policies that would target LGBT individuals for arrest and “rehabilitation.”8 Local decrees and other official documents reviewed by Human Rights Watch proposed handing over lists of alleged gay and bisexual men to authorities, changing school curriculum to teach lies and hatred of LGBT people, force medical intervention to attempt to change their sexual orientation or gender identity and censoring speech about LGBT rights.9

State Protection:

[9]       With respect to state protection and in the particular circumstances of this case, according to the documentary evidence, the “government took almost no action to prevent discrimination against LGBT persons,” and in some cases it failed to protect LGBT individuals from societal abuse”. Further reports indicate that while the central government has not criminalized same-sex relations, various provincial governments have implemented  their own laws to punish LGBT individuals, including the Aceh provincial  government  which passed a law prescribing “100 lashes and/or up to 8 years  in prison”.10 The same report further notes that other provinces such as South Sumatra, Kalimaman, Tasikmalaya (West Java) and West Sumatra have done the same, though the punishment varies.11

[10]   Given the remarks made by government officials and more recently, the increasing anti-LGBT rhetoric depicted in counsel’s post-hearing disclosure, it would appear that the claimants have rebutted the presumption of state protection.

Internal Flight Alternative

[11]     I have further considered the objective country documentation which demonstrates a country with an increasing intolerance towards LGBT individuals. This intolerance is echoed in the NOP according to Human Rights Watch:

A series of anti-LGBT public comments by government officials grew into a cascade of threats and vitriol against LGBT Indonesians by state commissions, militant Islamists, and mainstream religious organizations. That outpouring of intolerance has resulted in proposals of laws which pose a serious long-term threat to the rights and safety of LGBT Indonesians.

[12]     Given the participation of the state in this growing anti-LGBT rhetoric, the laws put in place by various provincial governments throughout the country and the particular profile of the claimants, it appears that the claimants would be unable to live safely anywhere throughout Indonesia.

CONCLUSION

[13]     Having considered all of the claimant’s evidence on a forward-looking basis, including the claimant’s BOC, Ministers information, Counsel’s disclosure, the objective country documentation for Indonesia and the recording of the original RPD hearing, I recommend that this claim is suitable to he accepted without another hearing.

(signed)           N. LeBlanc

March 26, 2019

REASONS FOR DECISION

[1]       I have reviewed all of the evidence on file and listened to the testimony from the hearing. I have considered the particular circumstances of the claimants as well as the recommendation made by the Adjudicative Claim Officer and I agree that these claims are suitable to be accepted without another hearing for the following reasons.

[2]       I find that the claimants have sufficiently established their personal identities as citizens of Indonesia as well as their personal profiles as members of the LGBTQ community on a balance of probabilities. I did not find any issues as it relates to the credibility of their allegations or documents on file on a balance of probabilities. I also find that the claimants have established an objective basis for their claims. I find that the claimants face a serious possibility of persecution based on their membership in a particular social group. I further find that in the particular circumstances of the claimants that there is no adequate state protection or a viable internal flight alternative available to them. As such, I find the claimants to be Convention refugees.

[3]       Their claims are accepted.

(signed)           S. Bardai

March 26, 2019

1 Exhibits 2.1 & 2.2.
2 Exhibit 1.
3 Exhibits 4 & 6
4 Exhibit 6
5 Exhibit 3, National Documentation Package (NDP) for Indonesia (July 31, 2018).
6 Exhibit 3, National Documentation Package, Indonesia, 31 July 2019, tab 6.4.
7 Ibid.
8 Exhibit 10, Post-hearing disclosure, pages 11-12.
9 Ibid.
10 National Documentation Package, Indonesia, 31 July 2018, tab 6.2: IDN105148.E.
11 Ibid.

Categories
All Countries Ukraine

2019 RLLR 143

Citation: 2019 RLLR 143
Tribunal: Refugee Protection Division
Date of Decision: October 9, 2019
Panel: Charlotte Bell
Counsel for the Claimant(s): Lev Abramovich 
Country: Ukraine
RPD Number: TB9-03821
Associated RPD Number(s): TB9-03897
ATIP Number: A-2021-00256
ATIP Pages: 0000140-000150


REASONS FOR DECISION

[1]       [XXX] is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (hereafter “the Act” )1 by reason of his membership in a particular social group, namely civil rights activists. The [XXX] cause is gay rights activism in Ukraine.

[2]       [XXX], his son, is claiming refugee protection pursuant to sections 96 and 97(1) of the Act by reason of his membership in a particular social group; namely, he identifies as gay.

[3]       In reaching a decision, the panel has considered Chairperson’s Guideline 92 in relation to proceedings before the Immigration and Refugee Board of Canada involving sexual orientation and gender identity and expression.

ALLEGATIONS

[4]       The claimants’ allegations are set out fully in their Basis of Claim (BOC) forms.3

[5]       In summary, [XXX] is a citizen of Ukraine who fears persecution based on his sexual orientation, specifically as a gay male

[6]       [XXX] is the father of the [XXX], and a civil rights activist working for gay rights in Ukraine. He fears persecution by reason of his civil rights activism.

[7]       Both father and son have suffered physical violence, threats, and police indifference in Ukraine by reason of their membership in their particular social group.

DETERMINATION

[8]       The panel finds that the claimants have established a serious possibility of persecution in Ukraine based on a Convention ground; namely, membership in a particular social group.

ANALYSIS

Identity

[9]       The panel is satisfied, on a balance of probabilities, as to [XXX] and [XXX] personal identity and identity as nationals of Ukraine, based on the certified true copies of their Ukrainian passports in evidence.4

Credibility and Subjective Fear

[XXX]

[10]     The panel questioned [XXX] first about the allegations set out in his BOC. The panel finds that the claimant was, on the balance, a credible witness. His testimony was consistent with the allegations set out in his BOC. He described his association with and the friends he had in the LGBT community, specifically those he had met at GenderZ. He discussed the activities and demonstrations that he had participated in there. He described his relationship with [XXX], how they met and started dating in March 2018, how they located the apartment in which they eventually moved into together. He also described beatings he had undergone, and produced medical reports supporting his injuries.

[11]     One two occasions when [XXX] was attacked, the incident was reported to the police. In one attack, the police threatened to turn the accusation back on to [XXX], as his attacker claimed to be a victim who had counterattacked. In another incident the police pressured witnesses and kept them from giving statements confirming the attack.

[12]     [XXX] was clear and cogent in his testimony that he would not feel safe in any part of Ukraine, and that police protection was not available to him or his father.

[13]     [XXX] testimony supported his father’s claim. He described his father’s activism on behalf of the gay community in Ukraine. He recalled and gave the example of an incident he witnessed in which people active in fighting for gay rights were attacked; they were his friends and the police did not want to accept their statement as to what had happened to them “due to hate.” He feared for his father’s safety in Ukraine as his father was known as an activist fighting for gay rights.

[XXX]

[14]     The panel also questioned [XXX]. The panel finds that the claimant was, on the balance, a credible witness. His testimony was consistent with the allegations set out in his BOC. [XXX] confirmed that his son is gay, and described how he and his son had discussed the son’s sexual orientation from the early realization of it.

[15]     In his BOC [XXX] described his son’s struggle with being gay in Ukraine; the assaults which his son had suffered, the law firm he had retained to provide legal support for his efforts to advance protection for the gay community, the attack he himself had endured during a morning run when three men wearing uniforms beat him and tried to drag him into a minivan, the efforts he had made to seek protection and redress from the police, and the futility of these efforts.

[16]     Although he had applied for and been granted a temporary visitor’s visa into Canada in [XXX] 2018, for both himself and his son, [XXX] did not leave Ukraine until [XXX], 2018. The panel questioned [XXX] as to why he had waited so long if he indeed feared persecution both on his own account and that of his son.

[17]     [XXX] said that a child’s happiness comes first. His son had met a boy named [XXX] and loved him, and because the move to Canada, where they knew no one and would suffer considerable financial difficulties, would prove so difficult (it would not be possible for his wife and daughter to accompany them to Canada), he decided to stay and hope. He was concerned for his own safety but would not leave his son alone in Ukraine; and so they waited.

[18]     In November 2018, his son and [XXX] were attacked by a group of people who were insulting their sexual orientation. [XXX] ran away and this ended [XXX] relationship with [XXX]. [XXX] became involved in pressing for a police investigation only to discover that one of the attackers was the son of [XXX]., the First Deputy Public Prosecutor of the claimants’ home city.

[19]     [XXX] testified that [XXX] was a known criminal, is corrupt and takes bribes, and he produced media articles that support this assessment. [XXX]., seeking to disengage his own son from the allegations of assault, phoned and threatened [XXX]. [XXX] testified that not only does he fear returning to Ukraine by reason of the fact that he is a known gay rights activist, and gay rights activists are targeted in Ukraine, but also because [XXX]. would now have particular reason to harm him.

[20]     [XXX] described what he referred to as the special relationship that police and prosecutors have in Ukraine, and the reason why, in his view, the bias will not soon change. He said that it was not a long time ago that the Criminal Code of the Soviet Union made it a criminal offence to be gay; and that gay persons were prosecuted and sent to psychiatric hospitals for “treatment”. These laws, it was his observation, are still ingrained in Ukrainian society.

[21]     The panel has reviewed the articles that describe the corruption and violence surrounding the office of the Deputy Public Prosecutor and accepts that because of his involvement in the case in which the prosecutor’s son was implicated, [XXX] is at a heightened risk should he return to Ukraine.

[22]     Finally, the panel notes that the claimants provided documentary evidence in support of their claims, most notably pictures and letters from the LGBT community in Ukraine, police reports, and medical reports.5 The panel finds these documents to be relevant and probative in support of both of the claimants’ allegations.

[23]     In light of the testimony that the panel has found to be credible, and considering the documentary evidence, the panel finds, on a balance of probabilities, that the claimant [XXX] is gay, and that he experienced physical violence in Ukraine due to his sexual orientation.

[24]     The panel also finds, in light of the testimony that the panel has found to be credible, and considering the documentary evidence, that, on a balance of probabilities, [XXX] is a civil rights activist advocating for gay rights who experienced physical violence and threats in Ukraine due to this activism.

Objective basis of the claim

[XXX]

[25]     Having considered the country conditions documentation, the panel finds that there is an objective basis to what [XXX] fears in Ukraine.

[26]     The objective documentary evidence indicates that the LGBTQ community in Ukraine faces bias and hostility6 and that discrimination against the LGBTQ community in Ukraine takes place in almost every area of life.7 Discrimination is considered to be frequently encountered in employment, education, healthcare and treatment by law enforcement authorities. Violence against individuals in the LGBTQ community is noted to be a significant human rights issue in Ukraine.8 While Ukraine was the first former Soviet State to decriminalize same-sex activity, social intolerance is noted to have gradually increased since that time.9

[27]     Evidence in the National Documentation Package (NDP) for Ukraine suggests that violence against the LGBT community in Ukraine is on the rise:

Nash Mir’s monitoring network in 2018 documented 358 cases of actions motivated by homophobia / transphobia, discrimination and other violations of LGBT rights in Ukraine. 34 included events that happened in 2017, the rest- 324 cases – occurred in 2018. In comparison, previously in 2017 Nash Mir Center documented 226 cases. Such a sharp increase in the annual number of the reported LGBT rights violations, in our opinion, resulted from both increasing efficiency of the monitoring network activity and the real growth of violence against LGBT people by right-wing radical groups.10

[28]     In light of the objective documentary evidence the panel finds that [XXX] has a well-founded fear of persecution in Ukraine based on his profile as a gay man.

[XXX]

[29]     [XXX] provided documentary evidence to support his claim that gay activists were targeted in Ukraine.

[30]     An article published in February 8, 2018, in the Gay Alliance Ukraine reported an attack by five masked men shouting “Sieg Heil” and “Death to Faggots” on four activists who were members of the “Gay Alliance Ukraine” organization. As a result of the attack two of them were taken to the hospital.11 A July 2018 World report dated July 1 2018 described as severe beating by unidentified assailants of a gay activist who was organizing a gay pride parade in Kryvyi Rih.

[31]     The National Document Package, World Report 2019: Ukraine Human Rights Watch12 contains the following confirmation of Oleksandr’ s concerns for his safety as a human rights activist;

1. Authorities did not conduct effective investigations into numerous assaults against anti-corruption and other community activists. In November 2018, Kateryna Handzyuk, an anti-corruption activist, died from burn wounds inflicted in a July acid attack.

2. Members of groups advocating hate and discrimination carried out at least two dozen violent attacks, threats, or instances of intimidation against Roma people, LGBT people, and rights activists in several Ukrainian cities. In most cases, police failed to respond or effectively investigate.

In March, hate groups attacked events to promote women’s rights in Kyiv, Lviv, and Uzhgorod. In Kyiv, they physically assaulted participants while police looked on.

3. In May, hate groups disrupted an equality festival in Chernivtsi while local police failed to effectively protect participants. Also in May, hate groups in Kyiv disrupted an Amnesty International LGBT rights event in Kyiv. Police present took no action and made homophobic comments.

[32]     In light of the objective documentary evidence the panel finds that [XXX] has a well-founded fear of persecution in Ukraine based on his profile as a gay rights activist.

State Protection

[33]     The claimants bear the onus of establishing, with clear and convincing evidence, that adequate state protection would not be forthcoming to them, were they to return to Ukraine. Having considered all of the evidence, including circumstances particular to the claimants, the panel finds that they have met this burden.

[34]     It is reported in the objective documentary evidence that incidents of homophobic violence are rarely investigated or prosecuted by the authorities in Ukraine and that there is no effective hate crime legislation in place.13 Significant problems are noted in the objective evidence with respect to law enforcement treatment of same-sex activity. Failure by the police to intervene in order to prevent violence and other crimes is also noted to be a problem, and it is also noted that the police sometimes use violence against people on the basis of their sexual orientation.14 The current United States Department of State (USDOS) human rights report for Ukraine indicates that there was sporadic violence against LGBTQ persons and that Ukrainian authorities often did not adequately investigate these cases or hold perpetrators to account.15 Crimes and discrimination against LGBTQ persons is noted to remain underreported and police open very view cases related to such acts.16 Further, it is reported that politicians at the local level sometimes voice opposition to LGBTQ rights and failed to protect individuals of the LGBTQ community.17

[35]     In September 2017, [XXX] was attacked. The attack was homophobically motivated. He required medical attention. The traumatologist was obligated to report such incidents to the police and so on September 19th, 2017, the claimants were called into the District Department of Internal Affairs. The investigating officer made derogatory comments about [XXX] sexual orientation, and berated [XXX] for how “poorly” he had raised his son.

[36]     When by October 2017 [XXX] went to check on the progress of the case, he was told that there was no news, the police had important work to do, and [XXX] should not disturb them with unnecessary requests.

[37]     [XXX] retained a lawyer, and submitted a complaint to the prosecutor’s office. The investigator told [XXX] that he was being “very imprudent’ and that he “should be very careful”. The investigator suggested that [XXX] might have been the real aggressor and could be charged with the offence.

[38]     On the advice of a lawyer, after this, [XXX] decide to stop pursuing the case.

[39]     The panel finds, on a balance of probabilities, that adequate state protection would not be forthcoming to the claimants were they to return to Ukraine.

Internal Flight Alternative

[40]     Given that homophobic attitudes and incidents of violence against LGBTQ people are reported to occur throughout the country, the panel finds that the claimants would face a serious possibility of persecution wherever they went in Ukraine. The panel therefore finds that there would be no viable IFA for the claimants should they return there.

CONCLUSION

[41]     Having considered all of the evidence, the panel finds that the claimant [XXX] has established that he faces a serious possibility of persecution in Ukraine based on a Convention ground, namely his membership in a particular social group by virtue of being a gay man. Pursuant to section 96 of the Act, the panel finds that the claimant is a Convention refugee.

[42]     The panel also finds that the claimant [XXX] has established that he faces a serious possibility of persecution in Ukraine based on a Convention ground, namely his membership in a particular social group by virtue of being a civil rights activist for the LGBTQ community. Pursuant to section 96 of the Act, the panel finds that the claimant is a Convention refugee.

[43]     Accordingly, the panel accepts the claims of both [XXX] and [XXX].

(signed)           C. Bell

October 9, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
2 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. Effective date: 1 May 2017.
3 Exhibit 2.1 & 2.2
4 Exhibit 1.
5 Exhibit 6 and 7
6 National Documentation Package (NDP) for Ukraine (31 July 2018), item 2.3.
7 NDP for Ukraine (30 April 2018), item 2.11.
8 NDP for Ukraine (31 July 2018), item 2.1.
9 NDP for Ukraine (31 July 2018), item 2.1.
10 NDP Ukraine (Nash Mir Center) 6.3
11 Exhibit 5 no. 6
12 NDP 2.5
13 NDP for Ukraine (31 July 2018), item 2.3.
14 NDP for Ukraine (31 July 2018), item 2.3.
15 NDP for Ukraine (31 July 2018), item 2.1.
16 NDP for Ukraine (31 July 2018), item 2.1.
17 NDP for Ukraine (31 July 2018), item 2.1