Tag: PSG: SOGIE

Categories
All Countries Kenya

2019 RLLR 132

Citation: 2019 RLLR 132
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2019
Panel: A. Lopes Morey
Counsel for the Claimant(s): Meagan Johnston
Country: Kenya
RPD Number: TB8-18669
ATIP Number: A-2021-00256
ATIP Pages: 000082-000086

DECISION

[1]       MEMBER: So, this is the decision in the claim for refugee protection put forward by, Mr. [XXX], who is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act, on the basis of your membership in a particular social group, as a gay man.

[2]       You allege, Sir, that if you return to Kenya, you would be at risk of persecution on the basis of your sexual orientation.

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

[4]       I find that, if you were to return to Kenya, you risk a serious possibility of persecution, on the basis of your sexual orientation.

[5]       I am satisfied you have proven your identity, on a balance of probabilities and I base that finding on the Kenyan passport, a copy of which is found at Exhibit 1.

[6]       I note that you were a credible witness today, during the hearing. Your testimony regarding your sexual orientation, including how you discovered it, how old you were and the relationship that you had in Kenya with, [XXX], was detailed, genuine and spontaneous, in my view.

[7]       Your testimony was consistent with your narrative from your Basis of Claim Form and I noted no omissions or any attempt to embellish your claim.

[8]       You provided credible testimony about your feelings when you discovered your sexual orientation, as well as, your reaction to that discovery. I note you testified with respect to your choice to join a seminary where you would be away from your family and community, in a boarding school, as you tried to overcome the feelings that you discovered you were having.

[9]       I found your most credible testimony to be when you described how [XXX] helped you to change your feelings about yourself and to help you accept who you are and your sexual orientation.

[10]     I note you described the relationship that you had with [XXX], in detail. So, you were able to explain how you met, how your relationship went from a friendship to a romantic relationship, your efforts to keep that relationship secret and what may have led others, especially the students around you, to suspect that you had a romantic relationship.

[11]     I note that testimony was consistent with your narrative and I did, again, find it spontaneous and detailed.

[12]     I find, therefore, you have established that you had a relationship with [XXX] in Kenya, as alleged.

[13]     You’ve also described your life here in Canada since you’ve arrived, including your involvement in various organizations, community organizations and your access to mental health support activities, which are support you to cope with your anxiety.

[14]     Your testimony about why these services are important to you was genuine and credible. I find that you take advantage of mental health services to help you manage that anxiety, as alleged and that your anxiety stems from your experience of threats and physical harm associated with your sexual orientation, in Kenya.

[15]     I note your claim was well documented, overall. First, I note that you have demonstrated you made efforts to contact the hospital where you were admitted in July of 2013, as a result of the physical attack that you underwent. I note the evidence is included in Exhibit 7.

[16]     In addition to that evidence, you were also willing and able to show me your cellphone today, which included an additional e-mail sent on December 1st of this year, again, requesting medical records from that hospital.

[17]     I think you have established that you made reasonable efforts to obtain your medical records in Kenya and I, therefore, draw no negative inference from the fact that they were not provided for the claim.

[18]     Given the circumstances and that you are no longer in touch with your family, as well as, the prevailing attitudes in Kenya towards homosexuals, I do not draw a negative inference from the lack of a letter of support from Kenya or individuals that you know in Kenya.

[19]     I note you were, however, able to provide a number of letters of support from individuals here in Canada who know you and who have met with you at various points on your journey in Canada, whether at community services or just establishing yourself in the community.

[20]     You’ve also included letters and documents corroborating your attendance at various community organizations here, such as, the 519 and Sherbourne Health and I note those documents are found at Exhibits 6 and 7.

[21]     Based on all of these considerations and the totality of the evidence before me, I find you have established that you are, on balance of probabilities, a gay man, as alleged and I find you have established you have a subjective fear.

[22]     The country condition documents before me are consistent with your allegations that there is a serious possibility you would face persecution in Kenya, were you to return, on the basis of your sexual orientation.

[23]     So, I make reference to the National Documentation Package, which is at Exhibit 3, as well as, the documents provided by yourself and your Counsel, which are found at Exhibit 5. I will note that there are consistent reports that individuals who are members of the LGBTQ community, in Kenya, face a serious possibility of persecution.

[24]     Items 2.1 and 6.1 of the NDP in particular indicate that same-sex intimate behaviour is criminalized in Kenya with a maximum penalty of 21 years imprisonment.

[25]     Item 2.1 further confirms that people have been detailed under those laws. There is evidence that from LGBTI organizations in Kenya that, the police more frequently use public order laws to detain people rather than the same-sex legislation. However, they do report that police frequently harass, intimidate or physically abuse LGBTI persons in custody, as well as, the fact that violence and discrimination against such individuals was widespread.

[26]     I find the overwhelming evidence indicates that there is a serious possibility of persecution for individuals of the LGBTI community, in Kenya and having taken those reports into account, I find you have established that your fear is well-founded.

[27]     With respect to state protection, I find that adequate state protection would not be available to you, were you to seek it in Kenya. There is clear evidence that, as mentioned, the police as an agent of the State can be one of the agents of persecution.

[28]     I note again, Item 6.4 of the NDP, reports that the police have harassed LGBTI persons or those believed to be so and have subjected some of these individuals to blackmail and rape.

[29]     I note additional indications in that item from a news report of June 2016, that persons of the LGBT community in Kenya can be legally tortured in order to find out if they are gay and that the high court has ruled that anal probe torture is legal and a reasonable way to prove the crime of homosexuality.

[30]     Therefore, I find that you have rebutted the presumption of state protection and based on your circumstances, as well as, the objective evidence, adequate state protection would not be forthcoming in your case.

[31]     For the same reasons, with respect to the State being one of the agents of persecution, I find that there is no internal flight alternative available to you inside Kenya.

[32]     Consequently, I find that you are a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act and I accept your claim.

[33]     CLAIMANT: Thank you.

[34]     MEMBER: You’re very welcome, Sir. I wish you all the best in Canada.

——— REASONS CONCLUDED ———-

Categories
All Countries Bahamas

2019 RLLR 131

Citation: 2019 RLLR 131
Tribunal: Refugee Protection Division
Date of Decision: September 9, 2019
Panel: M. Schnapp, P. Gueller, D. Willard
Counsel for the Claimant(s): Pablo Andres Irribarra Valdes
Country: Bahamas
RPD Number: TB8-18513
ATIP Number: A-2021-00256
ATIP Pages: 000077-000081

DECISION

[1]       MEMBER: Okay, we are back on the record, counsel I am not going to need any questioning or submissions from you, so I am going to read my decision, just to let you know we have accepted your claim and I am just going to read the decision.

[2]       This is the decision in the claim for refugee protection of [XXX] File Number TB8-18513, you are claiming to be a citizen of the Bahamas and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act

[3]       The panel has considered your testimony and the other evidence in this case and we are ready to render our decision orally. In assessing your claim, the panel has applied the Chairpersons guidelines, Guideline 9 on sexual orientation and gender identity and expression called the SOGI Guidelines.

DETERMINATION:

[4]       The panel finds that you are a Convention refugee pursuant to Section 96 of IRPA on the grounds of your membership in a particular social group as a gay man. The panel finds that you would face a serious possibility of persecution in the future if returned to the Bahamas. The panel is accepting your claim.

[5]       Your allegations are set out in detail in your Basis of Claim Form. In summary, you allege a fear of pervasive discrimination including possible acts of violence from the community because of your sexual orientation as a gay man and also due to the community’s perception of you as a gay man.

[6]       You allege that if you return to the Bahamas, you will face stigma, social exclusion discrimination in many aspects of your life and from the community and this would include verbal insults and possible physical violence and that you cannot live openly and freely as a gay man in the Bahamas, without experiencing this kind of harassment, threats and discrimination and there is no safe place for you to live in your country.

[7]       In making this assessment, the panel considered all the evidence including oral testimony and documentary evidence entered as Exhibits.

IDENTITY:

[8]       The panel finds that your personal and national identity as a citizen of Bahamas has been established on a balance of probabilities by your testimony and the supporting documentation filed in Exhibits 1 and Exhibits 4, in particular the certified copy of your passport which was seized by CBSA when you started your refugee claim.

[9]       The panel finds that there is a link between what you fear on the refugee Convention grounds namely your membership in a particular social group as a gay man and someone who was perceived by the community and family members as being a gay man.

[10]     Therefore your claim falls under Section 96. In terms of your general credibility, the panel finds you to be a credible witness.

[11]     The testimony was straightforward and consistent with your Basis of Claim Form and other forms and there were no significant inconsistencies or omissions that went to the core of your claim.

[12]     You provided spontaneous details of you coming to understand and coming to accept your sexual orientation of being a gay man. You also provided details of the discriminatory and threatening incidents that you experience in the Bahamas. These were details that you would expect of someone who lived the experience as described.

[13]     You provided corroborating documentation including letters from multiple friends who know of your sexual orientation and knew of the negative treatment you experienced in the Bahamas as a result of being a gay man, screenshots and messages being circulated on social media which exposed your sexual orientation and your counsel’s request for police records to the Royal Bahamas Police Force dated August 14th, 2018, Your identity as an HIV positive individual that has been established on the panel’s view on the balance of probabilities by your oral testimony and corroborating medical documentation that was filed as corroborating evidence.

[14]     For someone who is grown up in the society where being on the LGBT spectrum is treated with contempt, ridicule by many as an abomination, the panel finds your testimony to be credible.

[15]     You testified without any obvious embellishments and in a fluid immediate way. Therefore the panel believes your core allegations of your refugee claim and your oral testimony and your Basis of Claim Form on a balance of probabilities.

[16]     The panel believes that you are a gay and due to homophobia in the Bahamas you struggled with this, and cannot lead a free and safe and open life in the Bahamas and that you face a serious possibility of persecution in the future in the Bahamas.

[17]     With respect to your subjective fear and in particular reavailment and delay in making a claim, you have established that you are subjectively fearful of returning to the Bahamas, therefore the panel finds you have a subjective fear of persecution in the Bahamas.

[18]     With respect to the two trips to the United States in 2016 and 2017, you explained that you accompanied your family members, including your mother and that you had not realized at that point that you were able to make an asylum claim in the United States based on sexual orientation.

[19]     With respect to you only claiming refugee status after approximately one month in Canada, your BOC indicated that you were concerned that you did so at the airport, you may be send back to the Bahamas and you needed time to find a lawyer to assist you with the process.

[20]     Therefore the panel accepts your explanations as reasonable and finds that this does not detract in any significant way from you holding a subjected well-founded fear that is forward-looking today and the fear of persecution would exist in the Bahamas.

OBJECTIVE BASIS OF RISK, PERSECUTION:

[21]     The panel finds that you have an objective basis for your fear because of the documented conditions for the Bahamas as per evidence in Exhibit 3 which is the National Documentation Package for Bahamas.

[22]     It states that based on the evidence in this package, that the claimant has his stated experience and instances of abuse for his sexual orientation in the Bahamas from strangers and homophobic attitudes you have experienced and from family members which is made out in the documentary evidence as well that this is an objective country reports in the situation of the Bahamas.

[23]     You described having to conceal your sexual orientation. Exhibit 3 of the NDP documents that LGBT people in the Bahamas are generally afraid to be open about their sexual orientation or gender identity. They fear if they are open about their sexual orientation they will be subject to ostracism, exclusion, ridicule and possibly violence.

[24]     Physical and psychological violence is typically directed to LGBT persons who lived openly in the Bahamas and LGBT persons have been subjected to violence including killings and physical attacks.

[25]     There are also reports of discrimination in various sectors such as employment and housing in Items 2.1, 6.1, 6.2, and 6.3 of the NDP package.

[26]     Given that the panel finds the claimant credible as a gay man, we find that you will not be able to live freely and openly in the Bahamas without risk of experiencing the above noted harms.

[27]     Further Mr. [XXX] has the additional vulnerability of being an HIV positive man and the NDP speaks of discrimination and some abuse against persons who are HIV positive.

[28]     Item 2.1 which is the United States Human Rights Report, Department of State Report notes that children in Bahamas who are HIV positive face discrimination with authorities often and they often don’t tell teachers the child was HIV positive due to the fear of verbal abuse from both educators and peers.

[29]     Item 5.3 also speaks of discrimination and violence against people of HIV status and Item 6.1 is response to information request throughout the Bahamas which stated that LGBT groups in Bahamas who support people living with HIV have a difficulty getting international funding as it is supposed to be for their programs <inaudible> government does not want to be seen as supporting gay health initiatives.

[30]     This panel finds that as a person as a gay man living with HIV you would be even at heightened risk of discrimination and you may be harassed if you sought medical treatment for your condition.

STATE PROTECTION AND INTERNAL FLIGHT ALTERNATIVE:

[31]     The panel finds that there is a clear and convincing evidence that State protection would not be reasonably forthcoming in your case as per the evidence in Exhibit 3 of the National Documentation Package.

[32]     The NDP indicates that discrimination against LGBTQ members in the Bahamas is common place and the crimes against members of that community are rarely if ever resolved satisfactory.

[33]     Police do not take reporting of anti-LGBTQ crimes seriously, Item 6.1, 6.2 and 6.3 reports that LGBT people often experience difficulties if they turn to the police for protection and the Bahamas because they share strong anti-gay attitudes with the rest of the British Caribbean. The police smirk, ridicule and insult LGBT people if they are open about their sexual orientation.

[34]     So, based on the above the panel finds there is clear and convincing evidence that there is no adequate State protection for you in the Bahamas.

[35]     Lastly, the panel has considered whether there is a viable internal flight alternative available for you and on the evidence before us we find risk of physical harm and homophobic attitudes exist throughout the Bahamas.

[36]     So, there is a possibility of persecution throughout the country, therefore the panel finds there is no viable internal flight alternative available to you.

[37]     So, based on the totality of the evidence, the panel concludes that you are a Convention refugee pursuant to Section 96 of the Act, and we therefore accept your claim, thank you.

[38]     COUNSEL: Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Turkey

2019 RLLR 130

Citation: 2019 RLLR 130
Tribunal: Refugee Protection Division
Date of Decision: August 22, 2019
Panel: L. Hartslief
Counsel for the Claimant(s): Daniel Radin
Country: Turkey
RPD Number: TB8-17140
Associated RPD Number(s): TB8-17285
ATIP Number: A-2021-00256
ATIP Pages: 000072-000076

DECISION

[1]       MEMBER: I’ve had an opportunity to review the evidence before me and I have decided to give an oral decision today. You will receive an unedited transcript of this oral decision in the mail in approximately three weeks and your counsel will also receive a copy and he can answer any related questions you may have at that time.

[2]       This is the decision for [XXX], claim number TB8-17140. You are claiming to be a citizen of Turkey and you 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 reason that you have established, there is a serious possibility of persecution in Turkey based on your membership in a particular social group namely your sexual orientation as a gay man.

[4]       By way of background, you allege the following:

[5]       You realised that you were attracted to men when you were in your late teens although you hid your sexual orientation from your family. You experienced various incidents of negative treatment from members of society and Turkish authorities because of your sexual orientation.

[6]       This negative treatment included experiencing a police raid at a gay bar and getting fired from your job once the police divulged to your boss that you are a gay.

[7]       You also suffered multiple sexual assaults from a senior officer in the military exclusively because he discovered your sexual orientation.

[8]       While engaging in a sexual relationship in Turkey your partner’s brother discovered you together and stabbed your partner.

[9]       After you experienced this violent incident at the hands of your partner’s brother, the prosecutor’s office in Turkey issued a summons requiring you to provide information about the incident.

[10]     When you failed to appear as requested, these same Turkish authorities informed your parents that you are gay. After discovering your sexual orientation, your father who has a violent past verbally threatened your life during a phone conversation and told you never to return to Turkey.

[11]     You say that if you return to Turkey, you will be in danger from your father, your uncle, and the individual who stabbed your former partner. You also say the following:

[12]     The police raid mentioned above, the Turkish police have registered you in their system as a gay man and you will be under constant threat from the Turkish authorities if you return to Turkey.

[13]     Your personal identity as a citizen of Turkey has been established by your testimony and the supporting documents including a copy of your Turkish ID card, your family registry and your passport.

[14]     I therefore find on a balance of probabilities that identity and country of reference have been established for you.

[15]     I find that there is a link between what you fear and one of the five Convention grounds, specifically your membership in a particular social group namely your sexual orientation. This claim is therefore assessed under Section 96 of the Act.

[16]     I have considered all of the documentation before me as well as your testimony and I find that the evidence supports your allegations that there is a serious possibility of persecution by the State if you return to Turkey.

[17]     I am satisfied as to your profile as a gay man. Your Basis of Claim Form included significant details regarding your attraction to men and the ongoing discrimination and ill-treatment you suffered in Turkey because of this.

[18]     At the hearing, you provided detailed testimony regarding your same-sex relationships and the various ways you hid your sexual orientation while living in Turkey.

[19]     You also provided numerous documents in support of your testimony including multiple documents from the 519 organisation, letters of support from a previous partner and your aunt as well as your social media profiles from apps used by the gay community.

[20]     Your testimony on the supporting documentation all established that you are a gay man. You claim that if you return to Turkey you will be killed by your father, your uncle or ex-partner’s brother [XXX](ph).

[21]     You explained that your father has a long history of violence and he has had various brushes with the police. You explained that your uncle is a deeply religious man who thinks he would be rewarded in heaven if he had you killed.

[22]     Finally, your testimony and the documentary evidence confirms that [XXX] (ph) stabbed his own brother after finding you together and for all of these reasons I am satisfied on the balance of probabilities, there is a serious possibility of persecution at the hands of any of these three men if you return to Turkey.

[23]     I have also considered the fact that you will be flagged by the Turkish authorities for failing to obey the summons sent out for you and once you are detained Turkish authorities will likely see in their system that you are a gay man.

[24]     These factors put you at additional risk and for these reasons I find that there is a serious possibility of persecution in your home country.

[25]     However, regardless of any potential harm at the hands of these three individuals, the objective evidence does confirm your allegation that you face a serious possibility of persecution in Turkey as a whole as a gay man should you return.

[26]     I looked at a number of documents in the National Documentation Package dated March 29th of this year, in particular <inaudible> Article 1.17 confirms that Human Rights Organisations have found the police will use legal provisions relating to offenses against public morality, protection of the family and unnatural sexual behaviour to justify harassment of the LGBTQ community.

[27]     Article 6.1 confirms that the Pride Parade has been made illegal. There is widespread discrimination and safety concerns for the gay community across Turkey.

[28]     In fact, ever since pride events were made illegal across Turkey several years ago, the situation for the LGBTQ community appears to be steadily deteriorating in that country.

[29]     The Department of State article 2.1 contains significant information regarding the ongoing violence, discrimination and threats made against the LGBTQ community.

[30]     Crimes against members of the community are often under-reported and when suspects are convicted to these crimes, their sentences are reduced because of the behaviour of the victim.

[31]     The objective evidence is consistent with your allegation that you face a serious possibility of persecution as a gay man should you return to Turkey.

[32]     In Turkey, the objective evidence confirms that State protection is ineffective because it is unwilling to protect members of the LGBTQ community.

[33]     In particular, the Home Office Report at Article 1.14 Section 2.2.4 as well as Sections 2.4.4 states in particular the government does not effectively protect vulnerable LGBTQ persons from social abuse, discrimination or incidence of violence.

[34]     Impunity for crimes against LGBTQ individuals continues to be reported as a problem and in practice law enforcement officials and the judiciary have taken a lenient attitude towards crimes committed against LGBTQ persons.

[35]     For these reasons, I am satisfied that you have rebutted the presumption of State protection in Turkey.

[36]     Furthermore, as you have rebutted the presumption of State protection and based on the Country conditions already outlined, I am satisfied that there is a serious possibility of persecution throughout Turkey and therefore there is no viable internal flight alternative.

[37]     Based on the foregoing analysis, I find that you have established there is a serious possibility of persecution on a Convention ground namely your membership in a particular social group as a gay man.

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

[38]     COUNSEL: Thank you Ms. Madam Member.

[39]     MEMBER: Thank you very much.

[40]     COUNSEL: Thank you Mr. Interpreter.

[41]     MEMBER: Have a wonderful afternoon.

———- REASONS CONCLUDED ———-

Categories
All Countries Uganda

2019 RLLR 129

Citation: 2019 RLLR 129
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2019
Panel: Ellaree Metz
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Uganda
RPD Number: TB8-15381
Associated RPD Number(s): TB8-17285
ATIP Number: A-2021-00256
ATIP Pages: 000067-000071

DECISION

[1]       MEMBER: These are decisions in the claims of TB8-15381, [XXX] she’s the principal claimant joined with that of her partner [XXX]. They’re citizens of Uganda and are claiming refugee protection pursuant to Section 96 and 97 of the Immigration and Refu-, Refugee Protection Act.

[2]       Essentially both the counsel and the Board member has agreed that this is a Section 96 claim. The essence of their allegations or their substantive allegations are contained in Exhibits, in their Basis of Claim forms found starting Exhibit 2 and 3. And essentially, for the principal claimant, she alleges that she is a sexual minority, she’s bisexual, and that she’s facing persecution in Uganda due to her sexual orientation. The associate claimant who is her partner also claims that she is of a sexual minority, that is specifically, that she is lesbian and is facing, also facing persecution due to her sexual orientation.

[3]       With respect to identity, the associate claimant’s identity as a national of Uganda is established by her testimony and supporting documentation filed. I note that she had a certified copy of her true Ugandan passport, that is located at Exhibit 1. With respect to the principal claimants identity she also had a Ugandan passport located at Exhibit 1. Her testimony in chief before the Panel gave rise to concerns about her identity. While the information contained in her visa application to Canada, some of it is incorrect or manufactured and further her testimony was inconsistent regarding material aspects of her identity. Including her inability to properly identify her siblings, the inconsistency regarding the number of brothers and sisters she had, and further her inability to identify her sib-, sibling’s as well as her parents date of births. That coupled with concerns that were raised about what she may or may not have said to the immigration officials regarding whom or who she was traveling with, as is in her story for the TRV or the Temporary Resident Visa application gave the Panel pause. But I did take the time to look at all the evidence per say, and I will get to some of this later. And that her Ugandan passport is not considered to be fraudulent, nothing on the face of it is considered to be fraudulent at least. As examined by this Panel, also looked at documentation that she had with respect to support letters, specifically from the mother, from her mother that was accompanied by the mother’s, or at least a copy of the mother’s national identity card. As such on a balance of probabilities I find that she has met the identity portion of the hearing. I accept her identity that she is who she said she is, and she is a citizen of Uganda.

[4]       The credibility portion, a claimants sworn testimony is presumed truthful unless there are reasons to doubt the truthfulness of their allegation, and I’m cognizant of the many difficulties may arise by claimant in establishing a case. Including nervousness, cultural factors as well as for instance the use of an interpre-, interpreter. As these claims are related to sexual orientation and gender, I have considered the Chairpersons Guidelines, specifically I’ve considered, Chairpersons Guidelines on the SOGIE Guidelines, those are claims that involve, involving Sexual Orientation and Gender Identity and Expression. As well as I’ve considered the Chairperson’s Guideline 4, with respect to Women Refugee Claimants Fearing Gender­ Related Persecution. The Guidelines are used to assist or to help to assess the circumstances of claims and to understand and apply added sensitivities necessary, and awareness of circumstances that may affect findings relating to facts and findings of mix facts and law.

[5]       While I did have-, while there were credibility concerns as it related to the principal claimants, on a balance of probabilities I have determined that the claimants are Convention refugees pursuant to Section 96 on the grounds of their membership in a particular social group, that being that their sexual minorities in Uganda. For the principal claimant, as a bisexual, for the associate claimant her partner as a, as a lesbian woman, as such I will, I am accepting both claims for refugee protection.

[6]       The principal claimant along with her same-sex partner, here the associate claimant, they both testified here today. The majority of the testimony came from the principal claimant, they testified today and they also testified in the previous hearing date of September the 5th 2019. The principal claimant departed Uganda on [XXX] 2018 and arrived in Canada the next day. She did not make an application at the airport but later made an in-land claim for protection on June the 6th of 2018. The associate claimant, her partner was initially denied a visa, but later arrived in Canada on [XXX] 2018, and subsequently also made a claim for refugee protection.

[7]       During the hearing date of September, the 5th 2019, issues arose regarding the principal claimants inability to confirm or to properly identify various material aspects of her identity, including or associated with her identity as already indicated. Including particulars of her brothers and sisters, as well as particulars of her parents. Further, there was inconsistency and confusion with regards to her testimony pertaining to her journey to Canada. She re-, she testified upon arrival to Canada, she indicated to immigration officials that her aunt and uncle were traveling separately for the conference and this was the cover story used in their temp-, in her Temporary Resident Visa application. She also testified that she could not recall what she said with respect to the alleged foreperson-, to the alleged foreperson who was supposed to be with traveling her. That’s when I looked at the GCMS notes on file located at Exhibit 1. It indicated that the principal claimant was traveling, or was to be traveling with her mother and father and her mother’s sister. That would, family was not present when they arrived in Canada or present at the immigration official when they requested them, but that certainly would have cause immigration officials to question her further as to the deviation between her TRV application and what she was saying to them that day.

[8]       On September 11th 2019, a letter was sent to the Minister, alerting to them, to the possibilities that the claimants may be misrepresenting or withholding material facts pursuant to Section 27(3)(a) or 27(3)(c) or (3)(d) of the Act. The Minister did not respond or did not intervene, quite frankly the Minister has probably not gotten to the letter as of current date, so it is always open to the Minister after they review these matters to intervene on it afterwards or to challenge the Board’s decision. But based on the evidence that I’ve heard, I’ve accepted the claims.

[9]       Counsel invited me to consider the evidence in totality and to put much weight on the psychological report of Dr. XXXX, that is located at Exhibit 5. As I noted to counsel during his submissions, the report is dated February the 3rd 2019-,

[10]     Member: Are you following along Mam?

[11]     Claimant:

[12]     Member: Okay so they don’t need you to?

[13]     Interpreter: Yes

[14]     Member: Okay, thank you Mr. interpreter.

[15]     The report is dated February the-, February the 3rd 2019, however in the report it indicates that the psychologist saw the principal claimant on January the 20th 2018, which we know could not have been the case, as the principal claimant departed Uganda on [XXX] 2018. The principal claimant during her testimony here today was not able to offer much assistance on this matter as she could not recall when she saw the s-, psychologist, only that she had seen him once. That part at least corresponds with what the psychologist report indicated. So, on a whole 1-, did attach weight to the report, if not to the actual date that the claimant was seen, I did give the over-, the rep-, the overall report weight. It was also significant to the Panel, that the claimant is currently undergoing mental health treatment with her family physician and is on anti-depressant medication. I note there was no corroborative evidence beyond her testimony that put before the board, given the circumstances this will be a matter that there should’ve been medical documentation that was sent to the Board to correspond to-, so the Board can consider everything in totality. But going back to the report from Dr. [XXX]. It indicates that the principal claimant is suffering from [XXX], it requires mental health treatment. Further that she gets nervous and maybe inhib-, maybe inhibited during the hearing process. And the psychologist noted issues of concentration and recollection concerns that was nexus or due to her mental health state. In light of that report and in light of the weight that the Panel had given to the report, I did not make a fatal assessment with respect to her credibility, as those were alleviated by some of the concerns that were raised in the psychological report.

[16]     Then I looked at documentary evidence with support-, with respect to the overall claims. There was a letter from the principal claimant’s mother, regarding the gang rape, and that letter was supported by the mother’s national identity card from Uganda or copy of. There was a letter from the principal claimant’s friend or associate, [XXX]-, first name is-, last name is [XXX] first name is [XXX], regarding his involvement with the principal claimant and her work with assisting sexual minorities in Uganda. There’s also statutory declaration from [XXX], a personal friend of the principal claimant, indicating that she had allowed the principal claimant to seek refuge in her home in 20-, in January of 2018. So, in totality when I reviewed the file, I found that their allegations were supported by the evidence that has been filed and by the country documentation, which indicates that sexual and gender-based viol-, violence is widespread in Uganda.

[17]     According to the National Documentation Package for the country it indicates that same-sex activities are criminalized under Uganda’s Penal Code, and as such they’re deemed to be unnatural offences or acts of gross indecency. There’s also a high level of societal homophobia in Uganda, homosexuality is rejected by most Ugandans on the basis of tradition and culture, religion and moral values. Many in the country perceive homosexuality as un-African and un-Christian. There’s also reports of numerous examples of people suspected of engaging in same-sex activities who has been victims of mob aggressions, public aggressions, and have got no state protection. Thus, in light of the documentary evidence with respect to the treatment of people suspected to engage in same-sex activities in Uganda, as well as gender violence, I find that the fears expressed by the claimants have an objective basis.

[18]     The objective evidence indicate-, demonstrate that there’s no state protection available in Uganda for sexual minorities who are being threatened. It also indicates that sexual minorities have been subject to societal harassment, discrimination, intimidation, threats to their well-being, as well as loss of accommodation and jobs. They’ve also been denied access to health services. Consensual same-sex conduct is illegal in the country and the law provides for penalty of up to life, of up to a lifetime imprisonment. Considering all of this objective evidence, I find that it’s objectively unreasonable to expect the claimants to seek protection from the authorities in Uganda. Therefore, I find that there is no adequate state protection available for the claimants in Uganda based on their personal circumstances.

[19]     As I’ve found or accepted the claimants’ identities of sexual mi-, as sexual minorities in Uganda, I find that they would face a risk of being persecuted anywhere in that country. Thus, there’s no viable internal flight alternative for them.

[20]     So as such, I have accepted their claims for refugee protection pursuant to Section 96 of the Act.

———- REASONS CONCLUDED ———-

Categories
All Countries Ghana

2019 RLLR 128

Citation: 2019 RLLR 128
Tribunal: Refugee Protection Division
Date of Decision: April 23, 2019
Panel: S. Charow
Counsel for the Claimant(s): El-Farouk Khaki
Country: Ghana
RPD Number: TB8-14776
ATIP Number: A-2021-00256
ATIP Pages: 000062-000066

DECISION

[1]       MEMBER: This is the decision for [XXX] file TB8-14776.

[2]       I’ve considered your testimony and the other evidence in this case and I’m ready to render my decision orally.

[3]       In making this decision I’ve considered and applied the guidelines for sexual orientation.

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

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

[6]       The allegation 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 man, as being gay is illegal in Ghana.

[7]       You also allege that you cannot live freely as a gay man in Ghana and that your community may harm you because of your sexual orientation. You’ve alleged that your community has attempted to harm you after you were discovered with your same sex partner shortly before leaving Ghana.

[8]       Your personal identity as a citizen of Ghana has been established by your Ghanaian passport at Exhibit 1. I find that, on a balance of probabilities, identity and country of reference have been established.

[9]       In terms of your general credibility, I have found you to be a credible witness and I therefore accept what you’ve alleged in your oral testimony and in your Basis of Claim Form at Exhibit 1.

[10]     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. Your testimony was spontaneous, including being able to provide details about your previous experience of harassment and violence after your sexual orientation was revealed to your community.

[11]     You also provided credible testimony about the interactions that you had with your family after they learned about your sexual orientation. You also testified credibly about the fears that you have about the harm that may come to you should you return to Ghana.

[12]     I noted that there was extensive and detailed testimony about your previous same sex partner in Ghana, including the how the relationship developed, what you liked about your partner, and you were able to give personal information about your partner that was consistent with the level of the relationship alleged.

[13]     I also noted that in support of your claim you provided numerous credible documents, including an affidavit or … or a statutory declaration from your mother who was the person that you told in Ghana about your sexual orientation. You provided a statutory declaration from a family friend who was the person you hid with after you escaped from your community when they found out about your sexual orientation.

[14]     I also noted extensive and multiple correspondence over the app gay Romeo. I noted that this correspondence was detailed, wasn’t just a hi how are you with a back and forth conversation between multiple people. I noted that this correspondence went further back than just in the timeframe immediately prior to your hearing. I noted that when we discussed gay Romeo you were able to describe how you chose your profile photos, how you choose who to correspondent with, and what you’re looking for from this application.

[15]     In terms of the evidence, I note that it’s available at Exhibits 6 though 8.

[16]     I did have some concerns about your failure to claim asylum in the United States. You had been three times after you first understood yourself to be gay. Twice for student work programs and then once after your sexual orientation had been revealed in Ghana.

[17]     You explained that you did not claim on the first two occasions that you had been there because your life was not in danger at that time. You wanted to go back to Ghana and be with your family. I do find this explanation to be reasonable.

[18]     However, you explained that on your third trip to the United States after your life was in danger in Ghana, you did not file a claim for asylum based on a discussion with someone you met in a hostile in New York. You said that talking with this person made you scared that you would have to return to Ghana because of the attitudes of the current administration, specifically the … the attitudes that they have towards immigrants and asylum seekers. However, when you told me about this conversation that you had you didn’t know the last name of the person you had talked with.

[19]     You didn’t do any of your own research into the situation for immigrants or asylum seekers in the United States, and you didn’t meet with a lawyer in the United States to assess your options. You did have valid visitor status at that time and yet you still crossed irregularly into Canada.

[20]     While I’m not commenting on what the actual attitudes towards immigrants or asylum seekers is in the United States, I don’t think that you specifically have provided a reasonable explanation for your failure to claim asylum in the United States, and this does negatively impact your credibility. However, this issue is not determinative in your case, and I make this finding based on the strength of your evidence, including your testimony and your supporting documents.

[21]     Even with one noted omission and an inconsistency as per my earlier questioning in this hearing, I do find that the overall credibility of your testimony and your supporting documents outweighs my other concerns. I do find you to be credible.

[22]     I’m therefore satisfied that you are a gay man, that the events have occurred as alleged in your testimony and in your Basis of Claim Form, and that there is a serious possibility that you would face persecution at the hands of either the Government of Ghana or your community should you return to Ghana.

[23]     I find that you’ve established your subjective fear. I find that there is a link between what you fear and one of the five Convention grounds. Specifically, that as a gay man from Ghana 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.

[24]     I further find that you have an objective basis for your fear because of the documented country conditions for Ghana as per the evidence in the Exhibit 3, the National Documentation Package for Ghana.

[25]     I note Sections 6.2, 6.3, and 2.1. I’ll summarize them. Under the Criminal Code same sex sexual conduct is a criminal offence. This … this law is used to threaten, arrest, and punish individuals for engaging in same sex sexual conduct.

[26]     There is stigma, intimidation, and negative attitudes towards people in the LGBT community. Dozens of LGBT people have, on numerous occasions, been attacked by mobs or members of their own families or subject to assault, intimidation, or extortion.

[27]     And I also note that there are homophobic statements in public support of the criminalization of same sex sexual conduct by public officials and religious leaders, which serve to perpetrate or perpetuate societal prejudices against gay and bisexual individuals and even encourage more hate speech, hate crimes, and discrimination by both State and non-State actors.

[28]     In consideration of this 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.

[29]     Due to his evidence, I also find that there is clear and convincing evidence that State protection would not be reasonably forthcoming in your case, and it wouldn’t be reasonable to ask you to seek such protection as the State is a possible agent of persecution.

[30]     As well, given these conditions and the circumstances you’ve described in your claim, I further find that there would be a serious possibility of persecution anywhere in Ghana, as same sex sexual activity is criminalized throughout the country.

[31]     As the test for an internal flight alternative fails on the first prong, I find there is no viable internal flight alternative for you anywhere in Ghana.

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

[33]     So, this will conclude today’s hearing. I’d like to thank everyone for their participation. Thank you, counsel and thank you, sir.

———- REASONS CONCLUDED ———-

Categories
All Countries Tanzania

2019 RLLR 126

Citation: 2019 RLLR 126
Tribunal: Refugee Protection Division
Date of Decision: March 21, 2019
Panel: S. Charow
Counsel for the Claimant(s): Micheal Brodzky
Country: Tanzania
RPD Number: TB8-08387
ATIP Number: A-2021-00256
ATIP Pages: 000054-000057

[1]       MEMBER: This is the decision for [XXX], file TB8-08387.

[2]       I’ve considered our testimony and the other evidence in this case and I’m ready to render my decision orally. In making this decision I’ve considered the guidelines for sexual orientation, gender identity and expression.

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

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

[5]       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’re in danger of being harmed because of your identity as a bisexual Tanzanian man. A same sex sexual activity is illegal in Tanzania. You fear the police, as you’ve alleged that you had previously been attacked, kidnapped, and imprisoned for three months without facing any charges before your parents had arranged for your escape.

[6]       Your personal identity as a citizen of Tanzania has been established by your testimony about yourself and your family and the supporting documents filed in Exhibit 1 and 5, namely your birth certificate and your membership in the Zanzibar Football Association card.

[7]       In considering that with your otherwise or overall credible testimony, I find that you have established, on a balance of probabilities, your identity and country of reference.

[8]       Now, in terms of your general credibility, I have found you to be a very credible witness and I therefore accept what you’ve alleged in your oral testimony and in your basis of claim form. You testified in a straightforward manner about your fears without embellishment and there were no inconsistencies that went to the core of the claim that were not explained. Your testimony was spontaneous and you comfortably answered questions about events or emotions not described in your basis of claim form.

[9]       You also were able to describe in detail your previous same sex sexual experience in Tanzania, including how you met your partner, how the relationship progressed, and what you liked about your partner, as well as the struggles you faced while keeping your relationship secret and the subsequent negative interactions you had when people in your community suspected that you were gay and told your parents.

[10]     You were also able to give detailed testimony about being attacked, kidnapped, and imprisoned because of your sexual orientation. The evidence you gave was consistent with your previous description but added more detail in a way that I found to be very credible.

[11]     You also provided a letter from your mother who wrote about how you cannot come back to Tanzania and about your sexual orientation, and this letter can be found in Exhibit 5.

[12]     However, one of the things that I must consider is your delay in leaving Tanzania. You said that you had been released from prison in [XXX] 2016 but you did not leave for Canada until [XXX] 2017. When I asked you about this delay you explained that it had been your father who had been making the arrangements for you. I have considered this explanation in the context of your age, which is very young, you are 19 at this time, and your relative lack of sophistication, as you had not completed high school and had not travelled outside of the country before. When considering all of these factors together, I find that you’ve provided a reasonable explanation for this delay and I will not draw any negative inference about your credibility accordingly.

[13]     In consideration of all of that, I am therefore satisfied that you’ve established your sexual orientation as a bisexual man and that you would face persecution at the hands of either the Tanzanian government or your community should you return to Tanzania. I find that you’ve established your subjective fear.

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

[15]     I further find that you have an objective basis for your fear because of the documented conditions for a Tanzanian. I refer to the national documentation package for Tanzania in Exhibit 3 specifically Section 6.1 and 6.3 which state that sexual acts between same sex couples are illegal in Tanzania.

[16]     Sources indicate that LGBT people in Tanzania have been subject to violence because of their sexual orientation or gender identity and that LGBTI people in Tanzania are vulnerable to various human rights violations, including but not limited to physical, sexual, and verbal abuse, arbitrary arrest and detention, and are denied access to justice, there’s eviction from housing and unfair dismissal from places of employment.

[17]     I further find that state protection would not be reasonably forthcoming in your case as same sex sexual activity is illegal in Tanzania. There is clear and convincing evidence that you could not access such state protection, nor would it be reasonable for you to request such state protection.

[18]     As well, given these conditions and the circumstances you’ve described in your claim, I further find that as homosexuality or same sex sexual activity is criminalized throughout the country there would be no safe place for you to be considering your sexual orientation.

[19]     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 Tanzania based on the serious possibility of persecution anywhere in Tanzania.

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

— DECISION CONCLUDED —

Categories
Albania All Countries

2019 RLLR 125

Citation: 2019 RLLR 125
Tribunal: Refugee Protection Division
Date of Decision: June 25, 2019
Panel: E. Joanne Sajtos
Counsel for the Claimant(s): Jeffrey L. Goldman
Country: Albania
RPD Number: TB8-06714
ATIP Number: A-2021-00256
ATIP Pages: 000045-000053

REASONS FOR DECISION

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

ALLEGATIONS

[2]       The claimant’s allegations are set out in his Basis of Claim Form.2

[3]       In summary, the claimant claims that he is a homosexual. His father relocated from Albania to Greece when the claimant was young, and as a result, the claimant was raised by his uncle, [XXX]. The claimant engaged in his first same-sex relationship in 2009. In January 2018, the claimant was in a bar. When he went to the washroom, the bartender, who knew the claimant, picked up the claimant’s phone and saw messages that he had exchanged with his same-sex partner. He was confronted with the messages and told to leave the bar without being given his phone back.

[4]       In February 2018, the claimant’s uncle confronted him about his sexuality, but the claimant denied that he was a homosexual. He was told that if the rumours were true, his uncle would kill him. The claimant, who worked in construction with his uncle, learned that the construction jobs where he had worked were being cancelled based on his homosexuality.

[5]       The claimant travelled through Greece en route to Canada, to live with his cousin, who is also a member of the lesbian, gay, bi-sexual, transgender, queer (LGBTQ) community. Since coming to Canada, the claimant has learned that his uncle, [XXX], has relocated to Greece because of the shame he faced in Albania, given that he has relatives who are homosexual.

DETERMINATION

[6]       The panel finds that the claimant is a Convention refugee because he has established a serious possibility of persecution on account of his membership in a particular social group, namely, homosexuals.

ANALYSIS

[7]       The determinative issues in this case are credibility, state protection, and internal flight alternative.

Identity

[8]       The claimant established his personal identity and Albanian nationality based on a certified true copy of his passport3 and his national identity card.4

Credibility

[9]       Credibility is an issue to be considered in all claims before the Refugee Protection Division. To determine whether a claim is well-founded, the panel must find, on a balance of probabilities, that the evidence is credible and trustworthy. A claimant’s testimony is presumed to be true, unless there are valid reasons to doubt its truthfulness.5 The existence of contradictions, discrepancies, and implausibility in the evidence of a claimant is a well-accepted basis for finding a lack of credibility. The panel can also use common sense when assessing credibility.6

[10]     In determining this claim, the panel has been guided by Guideline 9.7 The purpose of Guideline 98 is to promote greater understanding in cases that involve sexual orientation and gender identity and expression (SOGIE) and of the harm that individuals may face because of their non-conformity with socially-accepted SOGIE norms. This Guideline addresses the particular challenges that individuals with diverse SOGIE may face when presenting their cases before the Refugee Protection Division and it establishes guiding principles for decision-makers who adjudicate cases involving SOGIE.

[11]     The claimant and his witness testified in a straightforward manner, and there were no relevant inconsistencies in their testimony or contradictions between their oral testimony and the written evidence, which were not satisfactorily explained.

[12]     According to the claimant, he was able to successfully hide his homosexuality until January 2018 when a bartender in his community discovered messages on his phone that referred to a same-sex relationship in which he was engaged. The bartender told other members of the community, and the claimant was confronted by his uncle, who was also his employer. A threat to his life was made and the claimant, who recognized that his life was in danger, immediately left his home and stayed in a hotel for two days before travelling to Greece en route to Canada. He was also threatened by his father, who has a history of being violent towards his family members. A witness, who is the claimant’s current partner, testified to knowing about some of the hardships that the claimant endured with his family and his fear for his safety in Albania. The panel is satisfied that the claimant received death threats from his family members, including messages posted on his Facebook page after he had arrived in Canada, which resulted in him fearing for his safety.

[13]     The claimant is no longer in communication with his immediate family members with the exception of one of his brothers, who remains in Albania. His other family members refuse to speak to him because of his sexuality. According to his brother, his uncle, [XXX], left Albania because of the shame he feels given that he has homosexual relatives. The claimant, however, continues to fear that his uncle may return to Albania, and he feels that his uncle’s anger will have been further fueled by his shame and “honour”. When questioned as to why he did not report his uncle to the police, the claimant testified that he has a friend who is a police officer. The officer told the claimant that the police would probably assault a member of the LGBTQ community as opposed to protecting him. The evidence was that members of the LGBTQ community are perceived in Albania as being sick, or that they should be killed because of the way that they affect other people. Given the claimant’s quick exit from Albania following the threat he received from his uncle, and the fact that he left all of his possessions behind with the exception of a few clothes, the panel is satisfied that his actions were those of someone who is fearful for his safety.

[14]     By way of affirmation of the claimant’s homosexual status, he testified to participating in the Toronto LGBTQ community. He presented receipts9 from bars that he attends in the “gay village.” The claimant’s current same-sex partner testified to the claimant’s personal likes and habits, which were entirely consistent with the claimant’s testimony. In addition, correspondence provided from the 519 Community Centre,10 indicates that the claimant had participated in two programs there, one of which is a support group for LGBTQ refugee claimants. Based on the combination of the written and the oral evidence, the panel is satisfied that the claimant is a homosexual and that he is an active participant in the LGBTQ community in Toronto.

[15]     Based on the totality of the evidence, the claimant has established that he has a well­ founded fear of persecution should he return to Albania, based on his sexuality.

State protection

[16]     With respect to state protection, the panel must consider whether there is adequate state protection in Albania, whether the claimant took all reasonable steps to avail himself of that protection, and whether there is clear and convincing evidence of the state’s inability to offer adequate state protection.

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

[18]     A guarantee of protection for all citizens at all times is not to be expected. Nor is perfect protection. Where a state is in effective control of its territory, has military, police, and civil authorities in place, and it makes serious efforts to protect its citizens, the mere fact that it is not always successful will not justify a claim that the state is not providing protection.12 To require full effectiveness of foreign police and judicial systems would be to insist on a standard for other states which we, in Canada, are not always able to achieve ourselves.13 Further, it is not enough for there to be an existing relevant legislative or procedural framework for protection if the police or other authorities are not able or willing to effectively implement those protective provisions.14

[19]     The United States Department of State report for Albania, which is dated March 13, 2019,15 indicates that Albania is a parliamentary democracy. In June 2017, the country held parliamentary elections that the Organization for Security and Cooperation in Europe (OSCE) reported respected fundamental freedoms but were marred by allegations of vote buying and pressure on voters.16 Human rights issues included pervasive corruption in all branches of government.

[20]     The report further notes that although Albanian law prohibits discrimination based on sexual orientation, enforcement of the law was weak. Despite sexual orientation and gender identity being protected by hate-crime law, public officials sometimes made homophobic statements.17 Social and traditional media have criticized a recent anti-bullying  campaign and accused the LGBTI community of attempting to influence young people inappropriately.18 In 2017, police requested that a transgender woman withdraw her complaint of having suffered physical violence.19 Two weeks later, she was attacked by the same perpetrator and sent to the hospital.20 As of August 2017, the Commission for Protection against Discrimination (CPD) received two complaints alleging discrimination based on sexual orientation. The CPD ruled against the complainants in both cases.21

[21]     In a report entitled Being LGBTI in Eastern Europe: Albania Country Report, which is dated November 28, 2017,22 it was noted that Albania has adopted a National Action Plan 2016- 2020 for protecting and advancing LGBTI rights. During the course of his testimony, the claimant stated that because Albania wants to join the European Union, it has attempted to create an appearance of LGBTQ rights that is not based on the reality of the conditions faced by LGBTQ people in Albania. His testimony was corroborated by the authors of the above referenced report, who note that:

… These achievements in policy and legislation have led to a contradictory situation combining an outward appearance of legal protection and higher visibility of LGBTI people with hostility and discrimination still prevalent within key institutions…..23

Although the institutional environment is changing in positive ways, the effects of legal and policy improvements are not yet visible, because they are not being applied in practice. The lack of enactment of legal and institutional measures shows that the government has endorsed its responsibility to protect the rights of LGBTI people more to satisfy the demands of the international community – and in order to meet the requirements for EU membership in particular- rather than as a civil duty towards LGBTI citizens.24

[22]     The report states that rigid gender stereotypes and cultural expectations mean that men and women are expected to conform to rather inflexible concepts of masculinity and femininity in their behaviour and appearance in Albania. To deviate from these binary gender stereotypes is considered by some to be morally wrong. As a patriarchal society, there are high levels of social disapproval for any form of sexuality that falls outside heterosexual norms. Surveys have found that Albanians hold very negative perceptions of LGBTI people.25 A community may be unaware of a difficult family situation that involves LGBTI people. Parents of LGBTI people tend to keep their children’s sexuality secret to avoid “losing their honour”, and they often force their children to suppress their LGBTI identity. Sometimes families break off relations with the LGBTI person, or they force them to move away from home. Physical violence is considered to be an effective form of discipline and it is pervasive.26 In Albania, the perception that LGBTI people are sick and in need of a medical cure for their sexuality is very widespread among both the general public and health professionals.27 Due to the widespread prejudice and homophobia, most LGBTI people live in secrecy.28

[23]     The panel notes that the claimant’s testimony as to the lack of availability of state protection and the conditions in Albania is entirely consistent with the country condition documentation.

[24]     In view of the above analysis, the panel finds that the claimant has provided clear and convincing evidence that, on a balance of probabilities, state protection is inadequate. Thus, he has rebutted the presumption of state protection.

Internal flight alternative

[25]     The panel has considered whether a viable internal flight alternative exists for the claimant. Based on the totality of the evidence, the panel finds that there is a serious possibility of persecution throughout Albania. As noted in Being LGBTI in Eastern Europe: Albania Country Report:29

Deep-rooted prejudices among the majority of the population and a lack of awareness on the part of state officials impede the effective application of legislation and prevent its further improvement. They continue to experience a lack of support and violence from their families, neighbourhoods, political and religious leaders, law enforcement officials, employers, and health and education service providers.30

Thus, the panel is satisfied that the claimant would suffer a well-founded fear of persecution in all parts of Albania.

CONCLUSION

[26]     Based on the totality of the evidence, the panel concludes that the claimant is a Convention refugee in accordance with section 96 of the Immigration and Refugee Protection Act.31 Therefore, the claim for refugee protection is allowed.

(signed)           E. Joanne Sajtos

June 25, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form.
3 Exhibit 1, Package of information from the referring CBSA/CIC.
4 Ibid.
5 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
6 Shahamati, Hasan v. M.E.I. (F.C.A. # A-388-92), Pratte, Hugessen,McDonald, March 24, 1994.
7 Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
8 Ibid.
9 Exhibit 8, Claimant’s personal documents, at pp. 12-18.
10 Ibid., at pp. 1-2.
11 Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) I, 20 Imm. L.R. (2d) 85.
12 Villafranca: M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Marceau, Hugessen, Decary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), at para 7.
13 Samuel, Julia Vanessa v. M.C.I. (F.C., no. IMM-5175-07), Lagacé, June 18, 2008, 2008 FC 762, at para 13.
14 Elcock (Milkson), Joan Theresa v. M.C.I. (F.C.T.D., no. IMM-2985-98), Gibson, September 20, 1999, at para 15.
15 Exhibit 3, National Documentation Package (NDP) for Albania (March 29, 2019), item 2.1.
16 Ibid., item 2.1, at Executive Summary.
17 Ibid., item 2.1, at s. 6.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid.
22 Ibid., item 6.5.
23 Ibid., item 6.5, at Key Findings.
24 Ibid., item 6.5, at s. 5.1.
25 Ibid., item 6.5, at s. 4.1.
26 Ibid.
27 Ibid.
28 Ibid., item 6.5, at s. 4.5.
29 Ibid., item 6.5.
30 Ibid., item 6.5, at s. 5.1.
31 Immigration and Refugee Protection Act, supra, footnote 1, s. 96.

Categories
All Countries Peru

2019 RLLR 124

Citation: 2019 RLLR 124
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: S. Seevaratnam
Counsel for the Claimant(s): Richard M. Addinall
Country: Peru
RPD Number: TB7-25047
ATIP Number: A-2021-00256
ATIP Pages: 000034-000044

REASONS FOR DECISION

[1]       The claimant, [XXX], claims to be a citizen of Peru, who is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       The claimant alleges that he fears returning to Peru due to his membership in a particular social group, as a homosexual man.

[3]       The panel has carefully considered the Chairperson’s Guideline Number 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity Expression (SOGIE Guidelines)2 prior to assessing the merits of this claim.

ALLEGATIONS

[4]       The details of the allegations are outlined in the claimant’s Basis of Claim (BOC) Form.3 A synopsis of the allegations is as follows.

[5]       The claimant is a gay man, who was born and raised in Trujillo, Peru. The claimant testified that he realized at the age of 8 that he was attracted to boys. He had his first same-sex encounter with his classmate, [XXX],4 when he was 16 and had his first relationship when he was 18 with [XXX].5 The claimant explained that he was in love with [XXX], but two years into their relationship, [XXX] began to assault and humiliate the claimant in front of his friends. He became verbally and physically abusive. The claimant explained that when he threatened to terminate their relationship, [XXX] promised to change, but his violent behaviour continued.

[6]       The claimant testified that, at age 20, while he was intoxicated, he had a sexual relationship with a woman named [XXX]. It resulted in a pregnancy and the birth of their son, [XXX].6 The claimant explained that he was prohibited from having any contact with their son when he disclosed to [XXX] that he was gay, as she did not want their son to know that his father is gay. She wanted the claimant completely out of both their lives.

[7]       The claimant testified that on September 23, 2010, [XXX] pleaded with him to join him for dinner and the claimant accepted, in hope that the issues between them could be resolved and the violent behaviour would be terminated. After dinner, the claimant was driven by [XXX] to his home. At [XXX] home, there were two men there that the claimant did not recognize. [XXX] and the two men beat the claimant and sexually assaulted him. He was stripped naked and forcibly confined to a room, where he was locked for a week and mistreated. On September 30, 2010, the claimant managed to escape through the window and attempted to file a report with the San Juan de Lurigancho police.7 The police, upon discovering the claimant to be a gay man, punched him, insulted him and called his a “rosquete,” a derogatory expression for a gay person in Peru.8 The police threatened to “disappear” him and remarked that “all rosquetes should die.”9 They spat on his face and demanded he leave. The claimant testified that he was frightened by the police. The claimant further explained that he went to the hospital, seeking medical treatment, and he was denied any access to medical assistance due to his sexual orientation.

[8]       On May 12, 2011, the claimant testified that [XXX] came to his family home and physically assaulted him and threatened his father. Both the claimant and his father went to the police station to file a report and the police ridiculed his father for bringing a “daughter” into the world.10

[9]       Fearing further reprisals by [XXX] against his family, the claimant permanently left his family home and tried to hide from his assailant by moving to different states within Peru.11

[10]     On March 3, 2013, [XXX] approached the claimant in Ayacucho and injured him by hitting him on the head with a hammer,12 causing the claimant to lose consciousness.

[11]     On November 28, 2015, [XXX] approached the claimant in Pucallpa and hit him on the forehead with a gun. The claimant fell on the street. He feared that he was going to be shot by [XXX] and screamed for help. [XXX] fled and the claimant was assisted by two women who took him to the hospital. The claimant received medical attention and made a police report.13

[12]     On April 1, 2017, the claimant was forcibly removed by three men from his uncle’s home, who punched him and hit him with the butt of a gun. The claimant recognized two of the men from the incident on September 23, 2010, at [XXX] home. The claimant stated that he was fearful for his life and resisted, but he was overpowered by the three men. They dragged the claimant to the car where [XXX] was seated. The men placed a plastic bag on his head and forcibly tied his hands and legs. After a long journey by car, he was taken to a room and savagely beaten and raped. They forced a piece of wood into his anus.14 The claimant lost consciousness.15

[13]     The claimant testified that he gained consciousness at the hospital and he was informed by the attending nurse that he was found naked near the recycling garbage bin, by workers who thought he was dead. He was brought for medical attention when they discovered he was still breathing and the treating physician contacted the police and a medical report and a police report were made.16 The claimant testified that the police stated that they would pursue [XXX] but they failed. [XXX] continued to threaten the claimant by telephone. He stated that he is now HIV positive. He does not know whether he was infected by [XXX] or his three friends.

[14]     The claimant testified that [XXX] is a [XXX]. His family owns and operates three [XXX] in different regions in Peru, such as San Juan del Lurigancho and Santa Anita. The claimant further testified that the police are homophobic and susceptible to bribery and corruption. He believes that [XXX] is able to locate the claimant, through financial rewards to the police, who would know his location through his national identity card.

[15]     The claimant relocated to several different states in Peru and he was always discovered by [XXX]. He stated that there is a societal stigma against homosexuality and the police and members of the community are homophobic; thus, he is vulnerable as a homosexual man with HIV. He further stated that there is no safe place for him within Peru. Therefore, fearing for his life, the claimant fled Peru and sought protection in Canada.

DETERMINATION

[16]     The panel finds the claimant to be a Convention refugee. The panel’s reasons are as follows.

IDENTITY

[17]     In Exhibit 1,17 the claimant has provided a copy of his National Identity Card issued by the Republic of Peru and certified to be a true copy on December 16, 2017.

[18]     In Exhibit 7, the claimant has submitted a copy of his passport issued by the Republic of Peru.18

[19]     In Exhibit 5, the claimant has provided a copy of his Birth Certificate which indicates that he was born at Central Hospital no. I, in the District Council of La Victoria, in the province of Lima and the Republic of Peru, to parents who are both nationals of Peru.19

[20]     In Exhibit 6, the claimant has provided photographs with his friends from the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community20. Furthermore, the Immigration Referral Form, certified to be true on December 18, 2017, by the Canada Border Services Agency (CBSA) officer in Exhibit 1,21 indicates that the claimant is HIV positive. The claimant was referred for medical treatment by the CBSA through the Interim Federal Health Program, and it was provided.22

[21]     The panel finds the claimant to be a HIV positive, gay man who is a national of Peru.

CREDIBILITY

[22]     The panel is cognizant of the leading jurisprudence on the issue of credibility. Maldonado23 stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.

[23]     The claimant responded to all questions posed by the panel and his counsel, clearly and directly. His testimony was straightforward. His responses were consistent with his Basis of Claim Form (BOC),24 the medical report,25 the police report,26 photographs,27 and affidavit.28

[24]     The panel finds the claimant to be a credible and trustworthy witness. Accordingly, the claimant has established his subjective fear.

WELL-FOUNDED FEAR OF PERSECUTION

Objective Fear – Sexual Orientation and HIV positive

[25]     Counsel for the claimant, in his oral submissions, indicated that the claimant is vulnerable to persecution based on three factors: (i) the claimant is a homosexual; (ii) he has been pursued by [XXX], his assailant, for almost a decade; and (iii) the claimant is HIV positive.

[26]     The United States Department of State’s (DOS) “Peru 2018 Human Rights Report” indicates as follows:29

Government officials, NGOs [non-governmental organizations], journalists, and civil society leaders reported widespread official and societal discrimination against LGBTI [lesbian, gay, bisexual, transgender, intersex] persons in employment, housing, education, and health care on the basis of their sexual orientation or gender identity. NGOs continued to report that law enforcement authorities repeatedly failed to protect, and on occasion violated, the rights of the LGBTI citizens…

[27]     The DOS report further states that “[p]ersons with HIV/AIDS faced discrimination and harassment, including societal discrimination for employment, housing, and general social inclusion.”30

[28]     The 2017/2018 Amnesty International Report indicates that “Peru continued to lack specific legislation recognizing and protecting the rights of LGBTI people, who continued to face discrimination and violence based on their sexual orientation or gender identity.”31

[29]     The claimant testified that he has been bullied in school by his peers for “being homosexual.”32 His family blamed his misfortune on his sexual orientation, and the police told the claimant that he and other members of the LGBT community deserve to die.33

[30]     The claimant explained that he was in love with [XXX] and he initially considered him to be his partner for about two years, until he became physically violent and psychologically abusive towards him. The claimant testified that [XXX] vehemently pursued him for over a decade, since his male, “macho” ego was bruised that “a faggot would leave him.” The claimant believes that out of revenge, [XXX] actively engaged in violent acts such as severe beatings, hitting his head with a hammer,34 hitting his head with the butt of a gun,35 and heinous crimes including gang rape and threatening the claimant with death.36 Despite this atrocious and odious victimization, the police turned a blind eye; this indicates that homosexuality carries a strong social stigma in Peru.

[31]     The medical report for the claimant dated April 15, 2017, from Emergency Services at the San Jose Del Callao Hospital corroborates the claimant’s allegations of gang rape and severe abuse.37 The report by the treating physician-surgeon, Dr [XXX] indicates that the claimant suffered: “Peri-anal rectum tear caused by a great degree of violence. Uncontrollable hemorrhaging due to tear or rupture of the rectal anal walls. Presence of peri-anal retraction type hemorrhaging, ecchymosis, swelling, edema on the right external side and the thighs of both legs.”38 The physician-surgeon also referred the claimant to be “sent to the Psychology Department for trauma due to physical and sexual attack.”39

[32]     The Human Rights Watch report found that according to a March 2018 Peru’s National Institute of Statistics survey, “over 60 percent of LGBT people surveyed had suffered some type of discrimination or violence.”40

[33]     The panel finds that if the claimant were to return to Peru, he would be susceptible to continued abuse and even death, at the hands of [XXX] and that the police will be complicit in this violence, due to their homophobic attitudes towards the claimant’s sexual orientation.

[34]     The panel finds that the claimant has established his objective basis for his well-founded fear of persecution.

STATE PROTECTION

[35]     There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens.41 To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.42

[36]     The claimant testified that state protection would not be forthcoming because his agent of persecution, [XXX], has the financial resources to bribe and influence the police. The police threatened to make him “disappear.”43 He fears returning to the police because he would be further victimized by the police, who are homophobic. The claimant further testified that he is disadvantaged as a HIV positive, homosexual man.

[37]     A report by an NGO on the violence and discrimination against LGBT persons in Peru, found that during the period of 2015 and 2016, “there were cases of discrimination perpetrated by police officers and municipal security agents in public places, in order to expel non-heterosexual couples and repress their display of affection…”44

[38]     The 2019 Freedom in the World Report for Peru indicates that “[g]overnment corruption remains a critical problem in Peru, though law enforcement authorities frequently investigate and prosecute corruption allegations.”45

[39]     The report further states that “a Peruvian market research company, found that 94 percent of the respondents viewed corruption as being widespread in Peru, and 82 percent believe it had increased in the last five years.”46

[40]     On the issue of the application of the rule oflaw, the report found that “[t]he judiciary is perceived as one of the most corrupt institutions in the country. In July 2018, secretly recorded tapes revealed five judges trading reduced sentences or judicial appointments in exchange for bribes.”47

[41]     In addition, the report found that “[c]onstitutional guarantees of due process are unevenly upheld. Lawyers provided to indigent defendants are often poorly trained.”48

[42]     The current NDP49 provides clear and convincing evidence that homosexuality is heavily stigmatized in Peru and the police are among the agents of persecution. Thus, in these circumstances, the state is unable or unwilling to protect the claimant.

[43]     Accordingly, the panel finds that the claimant has met the burden of proof, on a balance of probabilities, and the presumption of state protection has been rebutted.

INTERNAL FLIGHT ALTERNATIVE (IFA)

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

(1)       As per Rasaratnam, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”50 and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.

(2)       Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claim, for him to seek refuge there.51

[45]     The claimant bears the burden of proof to demonstrate that he would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment in all of Peru.

[46]     The claimant testified that after [XXX] threatened his father in their family home,52 he left his hometown of Lima and relocated to different areas including Trujillo,53 Ayacucho,54 Pucallpa,55 and El Callao.56 The claimant further testified that [XXX] had approached his friends in Lima, in search of him and offering money as compensation.57

[47]     The claimant made a valiant effort to relocate to different regions within Peru and he was discovered and brutally assaulted on each occasion, leaving the claimant seriously injured requiring medical attention. The claimant attempted to make police reports in the different regions and the police ignored his concerns, and ridiculed and humiliated him for his sexual orientation.

[48]     The panel finds that the claimant, as a homosexual man, would be vulnerable to persecution throughout Peru where homosexuality is condemned by society and the police.

[49]     Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout Peru. Thus, in the particular circumstances of the claimant, who is a homosexual man, an internal flight alternative is unavailable.

CONCLUSION

[50]     For the above reasons, the panel finds [XXX] to be a Convention refugee. The claimant has established that there is a reasonable chance of persecution due to his membership in a particular social group, as a homosexual man, if he were to return to Peru today.

(signed)           S. Seevaratnam

December 13, 2019

1 The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Chairperson’s Guideline 9: Proceedings Before the IRE Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
3 Exhibit 2, Basis of Claim Form (BOC), Narrative, received December 28, 2017.
4 Ibid., Narrative, lines 9-10.
5 Ibid., lines 11-15.
6 Ibid., response to q.5.
7 Ibid., Narrative, lines 28-30.
8 Ibid., lines 30-33.
9 Ibid., lines 31-33.
10 Ibid., lines 44-46.
11 Ibid., line 48.
12 Ibid., lines 49-51.
13 Ibid., lines 52-57.
14 Exhibit 5, Corroborative Documents, pp.12-14, received November 25, 2019.
15 Exhibit 2, BOC, Narrative, lines 61-70, received December 28, 2017.
16 Exhibit 5, Corroborative Documents, pp.8-14, received November 25, 2019.
17 Exhibit 1, Package of information from the referring CBSA/CIC, received December 22, 2017.
18 Exhibit 7, Claimant’s Passport.
19 Exhibit 5, Corroborative Documents, pp.1-5, received November 25, 2019.
20 Exhibit 6, Photographs, received November 25, 2019.
21 Exhibit 1, Package of information from the referring CBSA/CIC, received December 22, 2017.
22 Ibid., Interim Federal Health Certificate of Eligibility.
23 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
24 Exhibits 2, BOC, received December 28, 2017.
25 Exhibit 5, Corroborative Documents, pp.12-14, received November 25, 2019.
26 Ibid., pp.8-11.
27 Exhibit 6, Photographs, received November 25, 2019.
28 Exhibit 5, Corroborative Documents, pp.6-7, received November 25, 2019.
29 Exhibit 3, National Documentation Package (NDP) for Peru (August 30, 2019), item 2.1, s.6 – Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity.
30 Ibid., s.6 – HIV and AIDS Social Stigma.
31 Ibid., item 2.2, Rights of lesbian, gay, bisexual, transgender and intersex people.
32 Exhibit 5, Corroborative Documents, pp.6-7, received November 25, 2019.
33 Exhibit 2, BOC, Narrative, lines 31-32, received December 28, 2017.
34 Ibid., lines 49-51.
35 Ibid., lines 52-57.
36 Ibid., lines 61-70.
37 Exhibit 5, Corroborative Documents, pp.11-14, received November 25, 2019.
38 Ibid., p.13.
39 Ibid.
40 Exhibit 3, NDP for Peru (August 30, 2019), item 2.3, Sexual Orientation and Gender Identity.
41 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
42 Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Letourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), at para 38.
43 Exhibit 2, BOC, Narrative, lines 30-33, received December 28, 2017.
44 Exhibit 3, NDP for Peru (August 30, 2019), item 6.2.
45 Ibid., item 2.4, s.C2.
46 Ibid.
47 Ibid., s.F1.
48 Ibid., s.F2.
49 Exhibit 3, NDP for Peru (August 30, 2019).
50 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] I F.C. 706 (C.A.), at para 9.
51 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November I 0, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).
52 Exhibit 2, BOC, Narrative, lines 39-46, received December 28, 2017.
53 Ibid., lines 47-48.
54 Ibid., lines 49-51.
55 Ibid., lines 52-57.
56 Ibid., lines 61-70.
57 Ibid., lines 58-60.

Categories
All Countries Russia

2019 RLLR 123

Citation: 2019 RLLR 123
Tribunal: Refugee Protection Division
Date of Decision: April 26, 2019
Panel: Z. Kaderali
Counsel for the Claimant(s): Stephen B Watt
Country: Russia
RPD Number: TB7-20928
ATIP Number: A-2021-00256
ATIP Pages: 000030-000033

REASONS FOR DECISION

[1]       The claimant, [XXX], is a citizen of Russia. He claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)1.

ALLEGATIONS

[2]       The details of the alleged circumstances are found in the claimant’s Basis of Claim (BOC) form and updated narrative.2 The claimant is a 33 year old male, and a citizen of Russia. He indicates that he fears return to Russia on the grounds of his sexual orientation. He indicates that he met his partner in March 2015, and they were married in Canada in December 2017. The claimant advises that he made an asylum claim in the United States in June 2016, and came to Canada on [XXX] 2017.

DETERMINATION

[3]       The panel finds the claimant is a Convention refugee pursuant to section 96 of the IRPA, on the grounds of his sexual orientation. In coming to this determination, the panel has considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.3

ANALYSIS

Identity

[4]       The claimant’s identity has been established through a copy of his passport found in Exhibit 1.4 The panel is satisfied, on a balance of probabilities, that the claimant is who he says he is, and is a citizen of Russia.

Credibility & well-founded fear

[5]       Assessed in totality, the panel found the claimant to be a credible witness who testified in a straightforward manner. Looking at the totality of the evidence the panel finds there is sufficient credible and trustworthy evidence establishing that the claimant is a gay man, on a balance of probabilities. In coming to this determination, the panel has considered the following. As the Court explained in Maldonado, the sworn testimony of the claimant is presumed to be true unless a valid reason exists to doubt its truthfulness.5 He testified to his relationship with his spouse, who also attended the hearing, and provided testimony. Several corroborative documents are found in Exhibits 6 and 7 including (but not limited to) a letter from the claimant’s spouse, the claimant’s US asylum application, and his marriage license.6 The panel has further reviewed the US biometrics which were returned with “no match”.7 In light of the documentation before the panel including the claimant’s US asylum application, the panel places little weight on the biometrics. The panel has reviewed the two letters from the claimant’s US counsel indicating his written request made by his US counsel on his behalf to withdraw his US asylum application8. The panel finds, on a balance of probabilities, that the claimant currently does not have permanent residence in the United States, and that exclusion under article 1E of the United Nations Convention Relating to the Status of Refugees (article lE) is not an issue in these particular circumstances.

[6]       Objectively, as indicated in item 2.1 of the National Documentation Package (NDP) for Russia, “[o]penly gay men were particular targets of societal violence, and police often failed to respond adequately to such incidents.” Further, “LGBTI persons reported significant societal stigma and discrimination, which some attributed to official promotion of intolerance and homophobia.”9 The panel finds there is a serious possibility of persecution should the claimant return to Russia.

State protection and internal flight alternative

[7]       The panel finds state protection would not be reasonably forthcoming in the claimant’s circumstances. As indicated in item 6.1 of the NDP, sources indicate that “police officers are not trained on LGBT issues and “most of them have the same stereotypes about LGBT people as the majority of the Russian citizens” (23 Oct. 2013). Further, as indicated in item 6.7 of the NDP, “[d]iscrimination against the LGBT community in Russia is widespread and severe, including by the authorities.”10 The panel finds that there is not a viable internal flight alternative, and that these conditions exist throughout Russia.

CONCLUSION

[8]       The panel concludes that the claimant is a Convention refugee and accepts his claim.

(signed)           Z. Kaderali

April 26, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96, 97(1)(a) and 97(1)(b).
2 Exhibit 2, Basis of Claim Form (BOC) TB7-20928; Exhibit 4, Narrative (45 paragraphs).
3 Chairperson’s Guideline 9: Proceedings Before the IRE Involving Sexual Orientation and Gender Identity and Expression (SOGIE), Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. Effective May 1, 2017.
4 Exhibit 1, Package of Information from the referring CBSA/CIC.
5 Maldonado v. Canada (Minister of Employment and Immigration), (1980)] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
6 Exhibit 6, Claimant’s Documentary Disclosure; Exhibit 7, Marriage certificate.
7 Exhibit 5, US Biometrics no match.
8 Exhibit 8, Letters from US counsel (added post-hearing).
9 Exhibit 3, National Documentation Package (NDP) for Russia – January 31, 2019 Version.
10 Ibid., item 6.1 and 6.7.

Categories
All Countries Cameroon

2019 RLLR 122

Citation: 2019 RLLR 122
Tribunal: Refugee Protection Division
Date of Decision: February 19, 2019
Panel: R. Jackson
Counsel for the Claimant(s): Solomon Orjiwuru
Country: Cameroon
RPD Number: TB7-12430
ATIP Number: A-2021-00256
ATIP Pages: 000026-000029

DECISION

[1]       MEMBER: This is the decision of [XXX], who claims to be a citizen of Cameroon and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       The panel finds the claimant is a Convention Refugee on the grounds of his membership in a particular social group, that of bisexual man in Cameroon, for the following reasons.

[3]       In rendering its reasons, the panel has considered the Chairperson’s Guideline Number 9 proceedings before the Immigration and Refugee Board of Canada involving sexual orientation and gender identity and expression.

[4]       The claimant has alleged that he identifies as bisexual. He alleges he has had a few same-sex relationships in Cameroon. He was married to a woman in Canada and they have divorced because she discovered that he had been carrying on a same-sex relationship in Canada.

[5]       He claimed refugee protection as he cannot live openly as a bisexual in Cameroon and fears persecution, arrest and discrimination at the hands of the family of his ex-wife, the community and the government due to his sexual orientation.

[6]       The claimant’s identity as a national of Cameroon is established by his testimony and the supporting documentation filed including a certified true copy of his passport in Exhibit 1.

[7]       His identity as a bisexual is established by his credible testimony and the supporting documentation filed including a letter from the claimant’s mother, a copy of her identity card, a letter from the claimant’s former landlord as well as the claimant’s divorce documents, wherein his sexual orientation is discussed. The supporting documentation does not establish the claimant’s sexual orientation all by itself, but it does support his allegations in that regard.

[8]       The claimant’s testimony regarding his sexual orientation was believable including how he described his relationships with his same-sex partners in Cameroon and in Canada.

[9]       The panel accepts that the claimant is bisexual because, in that regard, his testimony was coherent, spontaneous and he generally provided a sufficient level of detail when explaining his same-sex relationships with men. For these reasons, the panel finds that he has established his identity as a bisexual man on a balance of probabilities.

[10]     The panel also finds that his allegations are supported by the country documentation, which is found at the National Documentation Package for Cameroon, Items 2.1, 6.1, 6.4 and 6.6, which indicate that consensual same-sex sexual activity is illegal and punishable by a prison sentence of 6 months to 5 years and a fine.

[11]     Cameroon prosecutes people for consensual same-sex conduct more aggressively than almost any country in the world. Cameroon’s anti-homosexuality law is easily subject to abuse and can be used by virtually anyone as a method of settling scores.

[12]     It is also a recipe for extortion. There are numerous examples of sexual minorities who were arrested or who were victims of violence, similarly grave violations of human rights because of a person’s real or perceived sexual orientation has become common in Cameroon.

[13]     The climate in that country is marked by pervasive homophobia. Ordinary citizens often express extreme hatred towards LGBT individuals. In Cameroon, it is common to link homosexuality to witchcraft.

[14]     Given the claimant’s credible testimony, the objective country condition evidence and the supporting documents the claimant filed, the panel finds that the claimant would face a serious possibility of persecution in Cameroon based on his sexual orientation.

[15]     Based on his personal circumstances, the panel finds that it would be objectively unreasonable for him to seek the protection of the State, and in any event the State protection would not be reasonably forthcoming; the police are one of the agents of persecution.

[16]     It is very clear from the objective documentation that there is no State protection available to sexual minorities in Cameroon, same-sex acts are illegal in Cameroon and the NDP indicates that police do arrest people for engaging in consensual same-sex sexual activity.

[17]     A report by the Finnish Immigration Service at Item 6.4 states that when LGBTI people seek protection from abuse in their communities, police officers fail to protect these individuals.

[18]     Police officers not only discriminate against LGBTI individuals, but also engage in harassment and violence against them. The threat of arrest for homosexual conduct can deter LGBTI individuals from reporting crimes committed against them, and those committing the abuse have done so with impunity.

[19]     Given the documentary evidence, the panel finds there is clear and convincing evidence that adequate State protection is not available to the claimant.

[20]     The panel has considered whether a viable internal flight alternative exists for the claimant. On the evidence before the panel, there is a serious possibility of persecution throughout Cameroon.

[21]     Given that homophobia is widespread in Cameroon, the homosexual acts are illegal throughout all of Cameroon and there is no State protection throughout the whole of Cameroon, the panel finds there is no place the claimant could go in Cameroon where he could live openly as a bisexual man. For these reasons, the panel finds there is no viable internal flight alternative for him.

[22]     So, in conclusion, the panel finds that he is a Convention refugee and therefore accepts his claim.

[23]     This hearing is now concluded. So, thank you both for your participation today.

[24]     COUNSEL: Thank you so much.

[25]     CLAIMANT: Thank you.

[26]     MEMBER: You’re welcome.

———- REASONS CONCLUDED ———-