Tag: PSG: SOGIE

Categories
All Countries Nigeria

2021 RLLR 69

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

DECISION

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

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

ALLEGATIONS

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

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

DETERMINATION

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

ANALYSIS

Identity

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

Credibility

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

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

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

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

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

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

Nexus

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

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

Well-Founded Fear

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

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

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

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

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

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

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

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

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

State Protection and Internal Flight Alternative

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

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

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

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

CONCLUSION

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

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

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

———- REASONS CONCLUDED ———-

Categories
All Countries Cameroon

2021 RLLR 68

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

REASONS FOR DECISION

INTRODUCTION

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

ALLEGATIONS

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

DETERMINATION

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

ANALYSIS

Identity

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

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

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

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

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

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

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

State Protection and Internal Flight Alternative (IFA)

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

CONCLUSION

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

(signed) Kerry Cundal

June 9, 2021

_______________________________________

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

2 Exhibit 2.

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

4 Exhibit 1.

5 Exhibits 4 to 10.

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

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

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

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

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

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

Categories
All Countries Nigeria

2021 RLLR 67

Citation: 2021 RLLR 67
Tribunal: Refugee Protection Division
Date of Decision: December 3, 2021
Panel: Zhanna Perhan
Counsel for the Claimant(s): Richard Odeleye
Country: Nigeria
RPD Number: TC1-08269
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]       MEMBER: XXXX, I had an opportunity to consider your testimony today, examine the evidence before me, in particular in Exhibits 5, 6, 7 and 8, provided by you via your counsel and I’m ready to render my decision orally today.

[2]       So the file number for you, XXXX, is TC1-08269.

[3]       During the hearing today and in my decision, I considered and I applied SOGIE Guidelines, Chairperson Guidelines 9.

[4]       XXXX, you claim to be a citizen of Nigeria.

[5]       You’re claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[6]       I find, XXXX, that you are a Convention refugee for the following reasons.

[7]       The allegations of your claim can be found in your Basis of Claim form, both the original and updated ones in Exhibit 2, 5 and 8.

[8]       In terms of your identity, it’s been established, on a balance of probabilities, through the certified true copy of your Nigerian passport in Exhibit 1.

[9]       I find there is a link between what you fear and one (1) of the five (5) Convention grounds.

[10]     As I noted earlier, the Convention ground for your claim is a particular social group.

[11]     I accept, on a balance of probabilities, that you are a bisexual.

[12]     So your claim is analyzed pursuant to section 96 of IRPA.

[13]     In terms of your general credibility, I focused my questioning today on your sexual orientation, as determinative in your particular circumstances. My assessment was based on your testimony, as it relates to your sexual orientation and your past same-sex relationships.

[14]     I found you to be a generally credible witness.

[15]     There were some inconsistencies, which I considered peripheral and they do not go to the heart of the claim and they obviously do not overcome your otherwise credible testimony today.

[16]     So I don’t draw any negative inferences from those inconsistencies.

[17]     You testified how you came to realization as a bisexual, when you were 15, about your attraction towards women and how you identify as bisexual. However, you find women are more attractive for you than the man.

[18]     I’ve put a lot of weight into your testimony about your relationships in Nigeria, in particular your first same-sex partner, XXXX (ph). You detailed today how you lost touch with her when she moved to Kano State.

[19]     You detailed also about your second and most lengthy relationship with XXXX (ph), who you met in XXXX and you were together for 13 years, both living in Lagos State.

[20]     You indicated that even though your family knew about XXXX, they all considered her to be your best friend rather than — nobody knew about your relationship, romantic relationship.

[21]     However, you and XXXX had to break up your relationship in 2018, when she was pressured into marriage and she moved to Abuja. She simply stopped answering your calls, as per your testimony today.

[22]     At that time, you started dating a man and due to constant pressure from your family, you also decided to get married. Your marriage was planned for February 1st, 2020. You started having second thoughts.

[23]     You decided to go to Canada, see your brother and do some wedding shopping in XXXX 2019. While in Canada, you made up your mind that you would not be happy with a man and your true identity would come out eventually. Moreover, you wanted to be happy and free and live the life in Canada as a free woman.

[24]     You talked to your mother. She was disappointed in you and she cried a lot, as per your testimony.

[25]     And you also had a talk with your ex-fiancé, who went as far as threaten you with death, if you returned.

[26]     Your brother advised you to seek refugee protection in Canada, which you did but the application process was delayed due to the pandemic.

[27]     At the start of the hearing, you also indicated that you had a relationship in Canada with XXXX (ph), who you met in shelter. Your friend, XXXX (ph), introduced you to her. You became good friends. You dated but XXXX didn’t want to commit to a serious relationship. In 2021, she moved to Montreal. You missed her a lot so you decided to go visit her in Montreal in October this year and tell her about your love, hoping that she would reconsider. However, it did not happen. You returned to Toronto heartbroken. Since then, you tried calling XXXX but she would not pick up your calls.

[28]     At the hearing, I asked if it was okay to call XXXX and ask her about you and XXXX. You provided XXXX phone number. She agreed to be on the record. XXXX testified that she introduced XXXX to you. That you asked XXXX to help ask XXXX out but she wouldn’t interfere. XXXX also testified that she knows you two (2) dated but doesn’t know about your current relationship because she hasn’t talked to XXXX in a while and XXXX who now lives in Montreal.

[29]     I find that testimony really corroborated and really helped to further — really helped with increasing your credibility and so I discarded those minor inconsistencies and omissions that were noted throughout your testimony, thanks to my talk with XXXX.

[30]     You also indicated that in Canada, you belong to LGBTQ societies, such as MCC and 519. You find them to be helpful.

[31]     You’re still in love with XXXX. You’re hoping she would still come around.

[32]     Unfortunately, you’re not on good terms with your brother, as his wife is not supportive of you. So since you moved out, you have not talked to him. Hopefully that will change in the future.

[33]     In support of your allegations, you presented documentary evidence in Exhibit 5, 6, 7 and 8.

[34]     In particular, I see here a XXXX XXXX, this speaks to past trauma and your current vulnerable state of mind; letters from your mother and your sister; letters from MCC and 519 about your membership and attendance; screenshots of your communication via WhatsApp with XXXX, your same-sex partner in Canada. There’s also a copy of your wedding invitation; photos with your fiancé in Nigeria, as well as photos of you with your same-sex partners in Nigeria.

[35]     I gave the documents lots of weight. They corroborate your written and oral testimony.

[36]     I find, on a balance of probabilities, you are a credible witness. I’m satisfied you would face persecution at the hands of the Nigerian authorities and general public, for being involved in a same-sex relationship.

[37]     I find you have established your subjective fear.

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

[39]     According to NDP on Nigeria in Exhibit 3, in particular Item 2.1, the Nigerian government commits significant human rights issues, including unlawful and arbitrary killings, extrajudicial killings, forced disappearances, torture, arbitrary detention, substantial interference with rights of peaceful assembly and freedom of association, in particular for lesbian, gay, bisexual, transgender and intersex LGBTQ persons.

[40]     Item 2.8 further states that Nigerian law criminalizes same-sex conduct, as well as public show of same-sex amorous relationships, same-sex marriages and the registration of clubs, societies and organizations that support LGBTQ.

[41]     The Same-Sex Prohibition law effectively renders illegal all forms of activities supporting or promoting LGBTQ rights. According to this law, anyone convicted of entering into a same-sex marriage or civil union, may be sentenced for up to 14 years of imprisonment. Following passage of this law, LGBTQ persons reported increased harassments, threat against them based on their perceived sexual orientation or gender identity. News reports on LGBT advocates report numerous arrests.

[42]     According to Human Rights Watch, the law had become a tool used by police and members of the public to legitimize human rights violation against LGBTQ persons such as torture, sexual violence, arbitrary detention, extortion, violations of due process rights.

[43]     With respect to societal treatment, Item 6.2 renders that Nigeria has been cited as one (1) of the most homophobic countries in the world, not only due to the severe incomprehensiveness of its legislation, that criminalizes same-sex but also for discriminatory and violent treatment of LGBTQ people in the form of blackmailing, physical, psychological abuse by authorities and the public, kidnappings, extortion, harassment, sexual attack subject to conversion therapies. Pressures to marry and involuntary outing by family and society members.

[44]     I also note that under the SOGIE Guideline section 5.11, being compelled to conceal one (1) SOGIE identity, constitutes a serious interference with fundamental human rights, that may therefore amount to persecution, when a claimant cannot be expected to conceal their sexual identity as a way to avoid persecution in their country of reference.

[45]     You have testified today to this extent citing that while in Nigeria, you had to conceal and keep secret your sexual orientation, as a bisexual woman.

[46]     In summary, I’m satisfied that based on your identity, as a bisexual woman, there’s a serious possibility you would be subjected to hate crime, mob violence, imprisonment, torture and even death.

[47]     Based on all the evidence before me, I find you have established a well-founded fear of persecution, on account of your identity, as a bisexual woman in Nigeria. You fear police, authorities, Nigerian community, as same-sex relationship is criminalized in Nigeria.

[48]     I find it would be objectively unreasonable for you to seek protection of the authorities in Nigeria, in your particular circumstances.

[49]     So adequate state protection is not available for you, as you fear the State.

[50]     A viable internal flight alternative is also not available for you because the federal laws of Nigeria, criminalizing same-sex relationships, are applicable throughout the country.

[51]     So a viable internal flight alternative does not exist for you in your particular circumstances.

[52]     Having considered all of the evidence, I find there is a serious possibility you would face persecution in Nigeria pursuant to section 96 of the Immigration and Refugee Protection Act.

[53]     I find you to be a Convention refugee.

[54]     Your claim is accepted.

———- REASONS CONCLUDED ———-

Categories
All Countries Ghana

2021 RLLR 66

Citation: 2021 RLLR 66
Tribunal: Refugee Protection Division
Date of Decision: December 17, 2021
Panel: Louise Gentile
Counsel for the Claimant(s): Ohene K Andoh
Country: Ghana
RPD Number: TC1-06386
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision for the following claimant, XXXX XXXX XXXX XXXX file number TC1-06386.

[2]       In reaching this decision I have followed Chairperson’s guideline nine, proceedings before the IRB involving sexual orientation and gender identity and expression.

[3]       I’ve considered your testimony and the other evidence in the case, and I am ready to render my decision orally.

[4]       You were planning to be … you’re claiming to be a citizen of Ghana and of no other country, and you are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

Determination:

[5]       I find that you are a Convention refugee because you face a serious possibility of persecution for the following reasons.

Allegations:

[6]       You allege the following. You’re a citizen of Ghana. You’re a bisexual man who was introduced to same sex relationships by your uncle when you were 15-years old. You had to live your entire adult life in Ghana concealing your true feelings and identity for fear of ostracism and violence should you live openly.

[7]       In April 2019, you were caught with your same sex partner, attacked by a mob, and had to go into hiding before fleeing the country.

[8]       You allege that as a bisexual man, if you return to Ghana, you will face persecution from State police and security agencies and/or from members of the community.

[9]       You allege further that there is no State protection for you nor is there any internal flight alternative.

Nexus to Section 96 or Section 97:

[10]     I find that there is a link between what you fear and one of the five Convention grounds, specifically your membership of a particular social group as a bisexual man. Therefore, this claim has been assessed under Section 96.

Identity:

[11]     Your personal identity as a citizen of Ghana has been established by your testimony and the supporting documents filed in the exhibits, including a certified true copy of a Ghanian passport with a Canadian TRV. I therefore find, on a balance of probabilities, that identity and country of nationality have been established.

Credibility:

[12]     In terms of your general credibility I found you to be a credible witness, and I therefore accept, on balance of probabilities, what you’ve alleged in your oral testimony and in your Basis of Claim Form.

[13]     Your testimony and evidence are presumed to be true.

[14]     In support of your claim you provided documents in Exhibit Number 5 confirming the attack against you because of your same sex relationship. You also submitted a XXXX XXXX confirming a diagnosis of XXXX because of the attack against you and the strain of having to conceal your sexual orientation in Ghana for so many years. The panel finds these documents to be credible and persuasive, on a balance of probabilities.

[15]     Your testimony about your relationship with your former partners was detailed, straightforward, seemingly unrehearsed and unexaggerated, responsive to questioning and was in keeping with your Basis of Claim Form, and there were no significant inconsistencies or omissions.

[16]     Your testimony about how you felt in Ghana as a consequence of having to live your life concealing your true identity for the safety, and the contrast of that life with your life in Canada where you finally feel secure was also detailed and convincing and seemingly unexaggerated.

[17]     I therefore believe what you’ve alleged in support of your claim, and I find the following to be credible. That, on a balance of probabilities, you are a bisexual man from Ghana.

Persecution Risk:

[18]     The objective documentation supports your allegations that individuals in your circumstance face persecution.

[19]     Ghanian law penal code Sections 104(1)(b) of the 1960 Criminal Offences Act criminalizes sexual acts between mutually consenting people of the same sex. Senior Government Ministers and religious leaders have engaged in openly hostile rhetoric against the practice of and the legalization of same sex behaviour. NDP 6.6 pages 18 to 21.

[20]     Rather than protecting LGBT victims of crime, Ghanian police sometimes either threaten with arrest or arrest LGBT victims of crime themselves when they attempt to report crimes to them. NDP 6.6 page 25.

[21]     Homophobic views are widespread in society. LGBT persons are not only not accepted, they are often believed to be or accused of being an intrusion western values into Ghanian society. Leaders have referred to homosexual acts as abominable acts and sins against the world. NDP Item 6.6, Item 6.1(9) at page 28.

[22]     LGBTQ persons also face police harassment and extortion attempts. NDP Item 2.1.2(0) page 24.

[23]     Therefore, I find that there is a serious possibility you could face arrest, imprisonment, or serious physical harm from the authorities or members of the community should you return to Ghana.

[24]     Based on the evidence, you’ve established an objective basis for your subjective fear. Therefore, I find that you have a well-founded fear of persecution.

State Protection:

[25]     I find that adequate State protection would not be available to you were you to seek it in Ghana.

[26]     The objective documentary evidence indicates that homosexuality is criminalized throughout Ghana. The authorities often do not provide adequate protection or access to justice to victims of crime with diverse SOGIE, and the police themselves are often violators of the rights of LGBT citizens.

[27]     In light of the above country documentation, I find that the claimant has rebutted the presumption of State protection. Based on your personal circumstances, fearing persecution from the police and community, as well as the objective country documentation, I find that adequate State protection would not be available to you in Ghana.

Internal Flight Alternative:

[28]     I’ve also considered whether a viable internal flight alternative exists for you.

[29]     The country documentation indicates that the situation for individuals in circumstances such as yours is the same throughout the country, and that you would face a serious possibility of persecution or risk to life anywhere in Ghana should you live openly as a bisexual man, which is your fundamental right. As such, I find there is no viable internal flight alternative for you in Ghana.

CONCLUSION:

[30]     Based on the totality of the evidence, I find the claimant to be a Convention refugee as he faces a serious possibility of persecution because of his membership of a particular social group as a bisexual man. Your claim is therefore accepted.

———- REASONS CONCLUDED ———-

Categories
All Countries Uganda

2021 RLLR 65

Citation: 2021 RLLR 65
Tribunal: Refugee Protection Division
Date of Decision: July 30, 2021
Panel: Miranda Robinson
Counsel for the Claimant(s): Bola Adetunji
Country: Uganda
RPD Number: TC0-04879
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]    MEMBER: Okay, so we are back on the record. As I stated previously, I am just going to read through the decision in full and I do ask that if you have anything you wish to say, or if you have any questions or concerns, please wait until I have completed reading the decision. Okay?

[2]    CLAIMANT: Okay.

[3]    MEMBER: Okay. So I will read the decision now.

[4]    CLAIMANT: All right.

INTRODUCTION

[5]    I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. These are the reasons for the decision in the claim of XXXX XXXX who claims to be a citizen of Uganda and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[6]    In rendering my reasons, I have considered the Chairperson’s Guideline No. 9: Proceedings Before the IRB involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[7]    Your allegations are found in your Basis of Claim forms and narrative in Exhibit 2, as well as in oral testimony heard today.

[8]    In summary, you allege persecution from Ugandan authorities and the homophobic community in Uganda for your sexual orientation as a gay man. You allege that you have been charged with crimes relating to a workshop that you attended that was organized by an LGBT group in Uganda.

DECISION

[9]    I find that you are a refugee, pursuant to Section 96 of the Immigration and Refugee Protection Act, as there exists a serious possibility of persecution should you return to Uganda on account of your membership in a particular social group, which is as a gay man.

Identity

[10]  I find that your identity as a national of Uganda is established by the documents provided, primarily the certified copy of the passport, as well as your Ugandan identity card and driver’s licence, which are given in Exhibits 1 and 4.

Credibility

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

[12]     You testified in a straightforward and direct manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. You testified credibly regarding your same-sex relationships that you had been in, including providing details of the relationship genesis and how they grew, as well as how you kept these mostly hidden from the public.

[13]     You explained and provided details with your interactions with LGBT organizations in Uganda, including the GALA Initiative and Sexual Minorities Uganda, also referred to as SMUG.

[14]     In regard to the event precipitating your departure from Uganda, you testified that you were participating in an LGBTQ workshop hosted by GALA when you were attacked by several men after you departed. When you tried to go to the police to inform them of the incident and for protection, they counter-accused you of unlawful assembly and continued to harass, target, and threaten you after this incident, as well as you allege that you were harassed, targeted, and threatened by others in the homophobic community after this knowledge of your participation in this event came out. After speaking with a SMUG safety protection officer, you were advised to leave the country for your own safety, at which time you prepared your visa application for Canada.

[15]     I note that you were forthright about being in two relationships with women in Uganda, and that you have two children born of these. You stated that you were pressured by family to enter into these relationships, and that you maintained your long-term same-sex relationship with XXXX while you were engaged to XXXX. You explained that you were never interested in the relationships with women, and that it was only to appease your family that you entered into them.

[16]     I accept this explanation. It is reasonable. And I therefore do not hold any negative credibility inference regarding your sexual orientation because of these relationships.

[17]     Overall, apart from that, your testimony was internally consistent and was in line with the objective evidence. I do note you have provided documentary evidence to corroboration the allegations of this claim, and after reviewing the documents you have provided, I have no reasons to doubt their authenticity.

[18]     In particular you have provided an affidavit from your ex-partner, XXXX, along with photographs of the two of you together. You testified there were many years between the two photographs and it appears to be so based on the general aging of the both of you. You have also given letters of support from GALA Initiative and SMUG – Sexual Minorities Uganda, indicating your participation in their events and activities, as well as their knowledge of your sexual orientation and the targeting that you faced.

[19]     You have given the release on bond from the police after your arrest to corroborate your arrest. As well as a letter of support from friends in Canada attesting to their knowledge of your sexual orientation and your participation with LGBTQ organizations, as well as a letter of support from your current same-sex partner.

[20]     I therefore find on a balance of probabilities that you are a gay man that has been in same-sex relationships in Uganda and in Canada, that you have been targeted for your work with LGBTQ organizations in Uganda, and that your subjective fear is established.

Objective Basis

[21]     Given that there are no serious credibility issues with respect to your allegations, coupled with the documentary evidence set out below, I find that you have established a prospective risk and a well-founded fear of persecution in Uganda.

[22]     This risk is corroborated by the National Documentation Package for Uganda in the April 16th version in Exhibit 3. Item 2.1 of the NDP states that consensual same-sex sexual conduct is criminalized, according to a colonial era law that criminalizes “carnal knowledge of any person against the order of nature”. This provides for a penalty of up to life imprisonment. Attempts to “commit unnatural offences” as laid out in law are punishable with seven years of imprisonment, and the government of Uganda does enforce these laws. Although the law does not restrict freedom of expression or peaceful assembly for those speaking out in support of the human rights of LGBTI persons, the government does severely restrict such right. Further, the law does not prohibit discrimination against LGBTI persons in areas such as housing, employment, nationality laws, or access to government services.

[23]     Item 6.1 states that authorities typically consider merely being a homosexual as a breach of the sodomy laws, and simply violating social norms can create a presumption of sodomy. Historically, some officials have had a much broader understanding of the “unnatural acts” than the courts have actually defined, and this has been used to justify harassment, arrests, and incarceration of sexual minorities, regardless of whether they have engaged in illegal sexual acts or not. And, further to this, Ugandan authorities typically identify homosexuality itself as a breach of the law, regardless of an individual’s sexual practices.

[24]     6.2 notes that the homophobic views are widespread in Ugandan society and are openly promoted in government and in religious areas.

[25]     I therefore find the objective basis for this claim has been established.

Nature of the Harm

[26]     I have considered your claim under Section 96 of IRPA as I conclude the risk you describe constitutes persecution based on at least one of the grounds in Section 96, specifically membership in a particular social group as a gay man. I find you are at risk of harassment, discrimination, arrest, physical harm, and imprisonment for your sexuality, as well as an inability to live freely as a sexual minority.

State Protection

[27]     I find that it would be objectively unreasonably for you to seek the protection of the state in light of your circumstances, as the agent of persecution is the state. Homosexuality, as noted above, is criminalized throughout Uganda. Additionally, the country evidence indicates that authorities do not provide adequate protection or access to justice to victims of crimes who are LGBTQ and police themselves are often seen as principal violators of rights against this community.

Internal Flight Alternative

[28]     I have examined whether a viable Internal Flight Alternative exists for you. Based on the evidence on file, I find that you face a serious possibility of persecution throughout the entirety of Uganda. Again, the laws condemning same-sex acts and relationships are consistent throughout the country and there is no part of Uganda where you would not face persecution or where you would be able to live freely. I therefore find there is no Internal Flight Alternative available to you.

CONCLUSION

[29]     In light of the preceding, I conclude that you are a refugee pursuant to Section 96 of the Immigration and Refugee Protection Act and accordingly I accept your claim.

[30]  COUNSEL: Thank you very much, Madam.

[31]  CLAIMANT: Thank you very much, Madam Member.

[32]  MEMBER: You are very welcome. Thank you, Madam Interpreter for being available and being patient here today. It is appreciated. Thank you, Counsel. And Mr. XXXX, I wish the best for your future.

[33]  CLAIMANT: Thank you very much, Madam Member.

[34]  MEMBER: And have a great day, everyone.

[35]  INTERPRETER: Thank you.

[36]  CLAIMANT: I thank you.

[37]  MEMBER: Bye.

———- REASONS CONCLUDED ———-

Categories
All Countries Pakistan

2021 RLLR 64

Citation: 2021 RLLR 64
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2021
Panel: Warren Chin
Counsel for the Claimant(s): Ian Wong
Country: Pakistan
RPD Number: TC0-03936
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision for the claimant Mr. XXXX XXXX XXXX. File number TC0-03936. Hearing date is December 16, 2021. My name is Warren Chin, and I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. The claimant is claiming to be a citizen of Pakistan and is claiming refugee protection pursuant to Section 96 and subsection 97.1 of the Immigration and Refugee Protection Act.

DETERMINATION

[2]       I find that the claimant is a Convention refugee on the grounds of his sexual orientation. Considering there is a nexus between what he fears and Section 96, namely on the grounds of his inclusion in a particular social group, I have assessed his claim under Section 96.

ALLEGATIONS

[3]      The claimant’s allegations are found in his Basis of Claim form, which are found in Exhibit 2. In summary, the claimant alleges persecution from extremist groups, members of his external family, and the police due to his sexual orientation as a gay man.

[4]      The claimant alleges that he was married as arranged by his family due to increasing pressure from them. The claimant alleges that he had an affair with his same sex partner which stemmed from 2004 in the UAE, which continued after his wife and his family returned to Pakistan in 2017.

[5]      The claimant alleges after he returned to Pakistan on or about XXXX of 2019, he reunited with some former same sex partners, XXXX and XXXX, where they engaged in intimate acts. The claimant was caught by XXXX father and the altercation was overheard by members of the community. The claimant later learned that a Fatwah had been issued ordering the claimant to be killed for indecent acts contrary to Islam, and that he would be sought and killed by his family as well as the police.

[6]      The claimant’s family subsequently went into hiding in Lahore. The claimant decided to flee to the United States and did so in XXXX of 2019. He went to Dubai to wind up his business and transited through Pakistan where he stayed for two days and then went to the United States. In July of 2019, the claimant learned that Muslim extremists had visited the home of XXXX, and harmed XXXX parents.

[7]      The claimant arrived in Canada in XXXX of 2020 and made a claim shortly thereafter. The claimant alleges that he will be harmed or killed anywhere throughout Pakistan and he will not be protected.

IDENTITY

[8]      The claimant’s identity has been established on a balance of probabilities as a national of Pakistan by his testimony and the supporting documents, namely the certified copies of his passport and national ID card, which are found in Exhibit 4.

CREDIBILITY

[9]       I do find this claimant to be an overall credible witness and I therefore believe what he has alleged in support of his claim. He testified in a straightforward manner. He spoke naturally and didn’t embellish his story. He gave spontaneous details and there were no relevant inconsistencies in his testimony, or contradictions between his testimony and the documentary evidence before me which have not been explained in a satisfactory manner.

[10]    In support of his claim he provided a copy of the Fatwah and an affidavit from his same sex partner XXXX, as well as affidavits from the claimant’s spouse and another close friend. After review of these documents I find that they are materially conformed to the claimant’s allegations.

[11]     After coming to Canada the claimant had three same sex relationships which were causal in nature. In support of his activities in Canada, the claimant disclosed photographs of the claimant attending night clubs and photographs of the individuals who he claims to have had relationships with. He also disclosed letters from the executive director of the 519, and also a coordinator, as well as several donation slips. That can be found in Exhibit 8. I find that these documents also conform to the claimant’s allegations in respect of his sexual orientation, and that the same sex activity continues to the current date.

[12]    I did have concerns with the claimant’s national ID card indicating an address in Lahore which was before the precipitating event which caused the claimant and his family to go into hiding of June 2019. The claimant explained that he used his in-laws address who had a home in Lahore in order to prevent the inconvenience of having to change it from the Pakistani embassy in Dubai. I accept this explanation as reasonable.

[13]    I also had concerns about the claimant having seemingly reavailed himself of the protection of Pakistan after returning to Pakistan in XXXX of 2019 before travelling to the United States in XXXX of 2019. The claimant explained that his daughter was sick and during counsel’s questioning on this matter, the claimant explained that he had intentions to stay in the United States to possibly make a claim which the claimant understood to be a long-term endeavour. I accept that the claimant being a father would take a risk to see his children one last time before permanently relocating to another country despite the threats made against him.

[14]     On the basis of the documentary evidence combined with the claimant’s testimony, I accept the claimant’s allegations as set out in his Basis of Claim form. In particular, I find that the claimant is a homosexual male who has a Fatwah ordering in the claimant’s name, which would subject him to serious harm or persecution if he were to be discovered in Pakistan on account of his sexual orientation.

OBJECTIVE BASIS

[15]    I also find that the objective country condition evidence supports the claimant’s allegations. The objective evidence indicates that it’s not uncommon for Pakistani men to live a dual life.

[16]    The objective evidence states that most gay men spend their life in guilt carrying a burden of sins. In their society they only have two options. One is to come out of the closet and live a horrible life in being bullied, and the other is to conceal their sexuality for the rest of their lives and people usually choose the second option. They get married. They start a dual life. One for family and society, and the other for their own satisfaction.

[17]    While sex between males is common, homosexual identity is not. So strong and widespread cultural, religious, and sexual intolerance of homosexuality means that it is not widely discussed or acknowledge in Pakistan. This is consistent with the claimant’s testimony in respect of his dual life, and in my view is a valid reason for his heterosexual marriage in 2008 in Pakistan.

[18]     I also note that the objective evidence indicates that there are state sanctions against homosexuality in Pakistan. The objective evidence indicates that the Pakistan Penal Code does not specifically refer to homosexuality but deals with this in its’ description or definition of actions that go against the natural order, specifically Section 377 states that whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life, or with imprisonment of not less than two years and not more than ten years and shall also be liable for a fine. This definition is usually read as prohibiting non-heterosexual sexual activity. There are also grave consequences in Sharia law that’s evidenced by the objective evidence before me.

[19]    Regarding the punishment for homosexuality, there is consensus among leading Sunni schools of thought, and most Islamic scholars that homosexual acts are a major sin and may be punishable by death. The IRB has noted in its’ report covering events between 2017 and 2019 indicate that according to sources, under Sharia law, homosexuals face the death penalty in Pakistan.

[20]    The objective evidence goes on to state that Islamic scholars who consider that the punishment of homosexuality is the death sentence and that married men who are offenders face a mandatory death sentence as opposed to unmarried men who would be subjected to floggings. This information can be found in Exhibit 3, item 6.8 and paragraph 3.3 to 3.4, and paragraphs 5.2. I find that the claimant’s subjective fears has an objective basis.

STATE PROTECTION

[21]    The claimant’s agent of persecution is the state and general society and the objective evidence indicates that most hate crimes against the LGBTQ people in Pakistan often go unreported or are out of the public spotlight. It also indicates that where gay men or lesbians are murdered, the family doesn’t often report the motive of the crime in order to not dishonour the family or they simply state that it was an honour killing or a suicide.

[22]     USIDHR report dated 2018 notes that crimes against the LGBTQ community often go unreported and that police generally take little action when they do receive reports. During the recent years there have been reported cases of individuals who are arrested for crimes against members of sexual minorities.

[23]    The objective evidence similarly states that regarding the obstacles for sexual and gender minorities to report incidents to the police, it states that having ones’ sexual orientation or gender identity revealed might increase risks and threats to the safety and the life of the individual.

[24]    At a state level the Pakistani government has been vocal at the international level being vocal about the human rights council and various UN meetings in respect of its’ refusal to embrace SOGI in respect of various human rights claims. Given the objective evidence noted above, I find it objectively unreasonable for the claimant to seek out any state protection and that state protection cannot be seen as being reasonably forthcoming, therefore I find the presumption of state protection is rebutted in this instance.

INTERNAL FLIGHT ALTERNATIVE

[25]    Given that the claimant’s agent of persecution is the state and in consideration of the objective evidence as stated above, I find that the claimant has established on a balance of probabilities that he would not be safe throughout Pakistan if he were forced to return. The first prong of the Internal Flight Alternative analysis is not met, and therefore an Internal Flight Alternative is not available to this claimant.

CONCLUSION

[26]    I therefore find on a balance of probabilities that the claimant would face a serious possibility of persecution if returned to Pakistan on account of his sexual orientation, and therefore on the basis of the totality of the evidence I accept the claimant’s claim pursuant to Section 96 of the Immigration and Refugee Protection Act. I find that he is a Convention refugee. Sir, your claim is accepted.

———- REASONS CONCLUDED ———-

Categories
All Countries Bahamas

2021 RLLR 63

Citation: 2021 RLLR 63
Tribunal: Refugee Protection Division
Date of Decision: March 30, 2021
Panel: Miranda Robinson
Counsel for the Claimant(s): Adrienne C Smith
Country: Bahamas
RPD Number: TC0-03776
Associated RPD Number(s): TC0-03848
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

MEMBER:

INTRODUCTION

[1]       I have considered your testimony and the other evidence in the case and I am ready to render my decision orally.

[2]       These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX, the principal claimant, and XXXX XXXX XXXX XXXX, the associate claimant, who claim to be citizens of the Bahamas and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

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

ALLEGATIONS

[4]       Your allegations are found in your Basis of Claim form and narrative in Exhibit 2, as well as the oral testimony heard today. In summary, you both allege persecution at the hands of the homophobic community in the Bahamas for your sexual orientation as gay men. You also allege to be in a common law same-sex relationship with one (1) another for approximately three (3) and a half years.

DECISION

[5]       I find that you are refugees pursuant to Section 96 of the Immigration and Refugee Protection Act as there exists a serious possibility of persecution should you return to the Bahamas on account of your membership in a particular social group as gay men. My reasons are as follows.

Identity

[6]       I find that your identities as nationals of the Bahamas is established by the documents provided. In particular, the certified copies of the passports and national identity cards in Exhibit 1. I also note that for the principal claimant, the USA biometrics showed variations of your name, which appear to be spelling errors and as you explained, you have no knowledge of why this would be inputted incorrectly. I also note the current passport does show stamps that match these dates with the fingerprints. In the other biodata, input is correct. It matches the passport and birth certificate. I also note the birth certificate shows your parents’ name and birthdate. And so, I accepted the principal claimant, XXXX XXXX XXXX XXXX identity as it is given in the passport.

Subjective Fear

[7]       I note that neither claimant sought asylum after travelling to the United States. As the principal claimant explains, your trips to the USA were primarily for work supply trips for your job. Both claimants, you have stated that you were unaware of the ability to claim in the United States was even an option to you. Again, I accept this explanation in your circumstances and therefore, it does not raise significant concerns with respect to subjective fear or credibility.

Credibility

[8]       I find you both to be credible and in particular, when considering the evidence, you have submitted to corroborate your allegations, I do find that, on a balance of probabilities, you are both gay men in a genuine same-sex relationship. To corroborate your allegations, you have provided significant documentation, and this includes a number of letters of support from both of you, from friends of both claimants, the principal claimant’s brother, as well, and these letters attest to the author’s knowledge of your sexual orientations and of your genuine relationship with one (1) another. You have also provided a number of screenshots of text message correspondence between you both, which indicates an authentic and ongoing relationship. And this is further corroborated by evidence of email transfers, which indicates the financial interdependence of your relationship. You have also given photographs of the both of you in the Bahamas, on vacation and in Canada and these are dated, labelled and take place over the course of several years of your relationship and they do appear to also show a natural and comfortable relationship with one (1) another. I therefore find that your subjective fear is established.

Objective Basis

[9]       Given that there are no serious credibility issues with respect to your allegations coupled with the documentary evidence set out below, I find that you have established a prospective risk and a well-founded fear of persecution in the Bahamas. The risk is corroborated by the National Documentation Package, the NDP for the Bahamas, the April 30th, 2020, version given in Exhibit 3.

[10]     Item 6.1 of the NDP indicates that,

[As Read] The Bahamas shares the same strong anti-gay attitudes as other Caribbean islands and that homophobia has permeated throughout cultural attitudes and is expressed in religion and in music.

In the British Caribbean, hypermasculinity is valued and openly gay men are seen as betraying manhood and it is culturally acceptable to exert physical violence against men who betray these gender norms. This also includes physical and psychological attacks and killings.

Sources further indicate that members of the LGBTQ community are generally afraid to be open about their sexual orientation or their gender identity in the Bahamas and are unable to live out freely.

Members of the LGBTQ community are often perceived as having a “nefarious international agenda” in order to spread homosexuality and are marginalized from employment and other social and civic spaces.

[11]     Item 2.1 indicates that, the Bahamian constitution does not include protection against discrimination based on sexual orientation. I, therefore, find on a balance of probabilities that the objective fear is also established.

Nature of the Harm

[12]     I have examined your claim under Section 96 of IRPA as I conclude that the risk you describe constitutes persecution based on at least one (1) of the grounds in Section 96. In this case, for your membership in a particular social group as gay men and in particular, in a same-sex relationship.

[13]     So, the risk you face is of being subjected to social abuse, discrimination, and inability to live freely. As well as mistreatment and violence at the hands of the homophobic community in the Bahamas.

State Protection

[14]     I find there is clear and convincing evidence before me that the state is unable or unwilling to provide you with adequate protection. As you stated in your narratives, you had made attempts to seek the protection from police and that these were not followed up with by authorities, and there was no positive outcome.

[15]     This is corroborated by the NDP as well. Item 6.1 states that,

[As Read] While homosexuality itself was decriminalized in the Bahamas in 1991, there continues to be a significant stigma against homosexuality that persists.

There is no official mechanism to document and monitor human rights violations against the LGBTQ community and there is no recourse available to victims of discrimination, based on sexual orientation.

Authorities in the Bahamas have not developed policies to counteract homophobia and across the region, there is a major problem of crimes against the LGBTQ community, remaining unsolved.

[16]     The evidence indicates that this lack of resolution to solve these crimes is due to either discrimination or incompetence or a general apathy in the police force. Further, crimes that are investigated face difficulties as the community itself and at times, friends and families of victims do not provide sufficient information to resolve matters.

[17]     Item 1 also indicates that in the judiciary, there is a pattern of believing the person to be straight over the person perceived to be LGBTQ, and in cases of murder of LGBTQ persons, the accused often goes without conviction and uses a penal code justification of force against a person in situations of extreme necessity, which includes forcible unnatural crime. And this causes the statute to be used to discriminate against LGBTQ people and to justify killings in response to alleged advances. I, therefore, find the presumption of state protection, in this case, is rebutted.

Internal Flight Alternative

[18]     I have examined whether a viable internal flight exists for you. Based on the evidence on file, I find that you both face a serious possibility of persecution throughout the Bahamas as the anti-LGBTQ attitudes and homophobic community is prevalent throughout the country. Therefore, there is no part of the Bahamas where you would be safe. And so, there is no internal flight alternative available to you.

CONCLUSION

[19]     In light of the preceding, I conclude that you are refugees, pursuant to Section 96 of the Immigration and Refugee Protection Act. Accordingly, I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Mexico

2021 RLLR 62

Citation: 2021 RLLR 62
Tribunal: Refugee Protection Division
Date of Decision: June 8, 2021
Panel: Steve Rudin
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Mexico
RPD Number: TC0-03401
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]    MEMBER: So, sir, I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. Now, in the event that written reasons are provided, they may be edited for spelling and grammar, and applicable references to documentary evidence, as well as case law may also be included.

[2]    XXXX XXXX XXXX XXXX is claiming refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.

[3]    The complete story alleging the basis of the claimant’s fear is captured in the claimant’s very detailed Basis of Claim Form and amendments, which can be summarized as follows:

[4]    Claimant alleges that he fears returning to Mexico because he will face persecution or harm based on his sexual orientation.

[5]    Growing up as a child in a Catholic family in Merida in the State of Yucatan, Mexico, the claimant alleges that at an early age he realized that he was gay, but could not freely express his homosexuality in a society that he described as homophobic.

[6]    The claimant alleges that he has been forced to supress his attraction to other men because he never felt safe or comfortable to do so. As well, he was urged by his family to participate in masculine activities such as sports.

[7]    The claimant maintains that he was often the subject of ridicule in school where he was accused of exhibiting feminine behaviours.

[8]    When he was eight years old the claimant disclosed in confession his preference for males to his priest who told him that there was something terribly wrong with him, and that if he was gay he would go to hell.

[9]    Based on pressures from family, school, and church, the claimant alleges that he considered suicide, but did not have the courage to act on that impulse.

[10]  Although there were constant rumours about the claimant’s sexual orientation, he never admitted to being gay.

[11]  In January of 2004, claimant enrolled in an XXXX program. After graduation in 2009, he began to work at the XXXX XXXX XXXX XXXX XXXX XXXX It was there that the claimant alleges he learned that although there were prohibitions against discrimination based on sexual orientation, homophobic views among managers and employees were still prevalent.

[12]  Based on the culture the claimant felt at XXXX, he left in 2010 and took a position at XXXX in Merida, Mexico where he alleges he confronted the same homophobic attitudes.

[13]  In July 2017, the claimant began to attend therapy from a XXXX XXXX XXXX.

[14]  In October of 2010, the claimant alleges he was invited to a party by his manager, Did not want to attend, and is because of his refusal to attend his co-workers came to his home and physically assaulted him. The claimant called police who attended and were told by the claimant’s attackers that he had inappropriately touched them, and according to the claimant he was told by the police that he deserved what he got. He received medical treatment for his injuries. Filed a complaint with the company but received no response.

[15]  Upon the recommendation of his psychologist in January 2019, the claimant quit his job and in February 2019 traveled to Toronto, Canada where he attended a one month English as a second language program. While in Canada, the claimant observed that the Canadian society appeared to be far more accepting of the LGBTIQ community, and extended his visitor’s visa until January 2020.

[16]  The claimant alleges that he was unaware that his sexual orientation was a ground to make an application for refugee protection, and was only in October 2019, when he happened to run into a Spanish speaking man that he learned that the individual was also gay, and connected him to Culture Link who assisted the claimant in obtaining legal services and making his application for refugee protection in January of 2020.

[17]  Counsel, this is the part that I think you may want to interpret to the claimant.

[18]  For the following reasons, on a balance of probabilities, the panel finds that the claimant would face a serious possibility of persecution on a Convention ground and therefore the panel finds that the claimant is a Convention refugee and has a well-founded fear of persecution should he return to Mexico.

[19]  I will … I will now, hopefully briefly, provide the reasons for making this determination.

[20]  On a balance of probabilities, I find that the claimant is a citizen of Mexico. The claimant established his citizenship by providing a copy of his passport issued by the Government of Mexico.

[21]  The hearing was conducted by video-conference, thus, I did not have an opportunity to review the original passport or other documents. However, I note that there are no concerns raised by any of the officials who had access to the original documents.

[22]  In assessing this claim I focused on the credibility of the claimant’s allegations. The risk of harm he might face upon his return to Mexico because of his sexual orientation.

[23]  I’m cognizant of the difficulties that any claimant faces in establishing a claim. These include the cultural factors, the stress of responding to oral questions through an interpreter, and this is compounded by the fact that this hearing was held remotely using Microsoft Teams, which claimant and counsel had agreed to.

[24]  I also considered the Chairperson’s guidelines on sexual orientation, gender identity and expression when conducting this hearing and assessing the facts in this case, such as the social, cultural context in which the claimant found himself.

[25]  Given the sensitive nature of some of the allegations, my questions were hopefully asked in a sensitive and respectful manner.

[26]  I also considered the psychological assessments that were provided by both Dr. XXXX XXXX(sic) in Mexico, and those of Dr. XXXX XXXX conducted here in Toronto.

[27]  For the following reasons I find the determinative issue in this case to be credibility and the claimant’s sexual orientation. As well, discussed were the issues of State protection and internal flight alternative, the claimant’s delay in making his claim, and the risk of persecution or harm the claimant would face should he return to Mexico.

[28]  In assessing the claimant’s credibility, an issue which is identified in any matter which comes before the Board, I was mindful of the Maldonado decision, which in part says 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.

[29]  I found that the claimant testified in a credible manner. His … there were no relevant inconsistencies in his testimony or contradictions between the testimony and other evidence that was before me. Find that the claimant testified in a spontaneous and detailed fashion.

[30]  Regarding the claimant’s sexual identity. I … I note that it is difficult to definitively establish an individual’s sexual orientation. However, on a balance of probabilities, I find that the claimant has established that he his a … a homosexual male. This finding is based on the claimant’s testimony, his detailed personal feelings and experiences, the relationships that he identified, as well as the letters and photographs that the claimant provided.

[31]  Also, I accept the explanations for the lack of witnesses. Among them the claimant’s initial partner in Canada, as well as his psychologist in Mexico.

[32]  Regarding the delay in claim, I accept that the reasons for this delay were precipitated by his lack of understanding of the system. I do have some concerns that he might not have raised the issue earlier on in his stay of Canada. However, on a balance of probability, I accept as reasonable his explanation for the delay.

[33]  Regarding the risk of persecution or harm that the claimant fears, I … I note that the Federal law prohibits the discrimination of LGBTIQ individuals. However, as counsel pointed out in his very thoughtful and detailed submissions, the law is always not fully implemented.

[34]  Therefore, although Mexico has taken steps towards equality, there are significant cultural and legal barriers that continue to exist.

[35]  According to the objective documentary evidence, and this is in both counsel’s package as well as the Board’s NDP, specifically in the chapters 2.1 which is the DOS report, and chapter 6 regarding sexual orientation, machismo is still embedded in Mexico culture, which increases homophobia and discrimination against sexual minorities.

[36]  This is certainly more prevalent in smaller towns and larger cities, although the acceptance is certainly not uniform.

[37]  And there is evidence that is provided that indicates that there is violence and discrimination ever present in the Mexican society, as well as among Mexican families, and as the claimant had testified, his family are observant practices … practitioners of the Catholic faith, consistent with the claimant’s testimony,

[38]  The objective evidence also indicates that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity. Further, sexual minority students reported discrimination and harassment based on their gender identity. As well, sexual minorities have experienced discrimination as the claimant describes in the workplace.

[39]  Based on this systemic discrimination and the incidents of discrimination and harassment that the claimant has experienced, I do find that the cumulative effect of these acts of discrimination and harassment do rise to the level of persecution.

[40]  Considering the aspect of State protection. As counsel pointed out in his submissions, adequate and effective separate does not exist uniformly throughout Mexico, and it even in jurisdiction where there’s some safe havens for the LGBTQI community, this is not uniformly practiced outside of that particular bubble.

[41]  As well in the issue of internal flight alternative, I find that the … the panel … that the claimant would face a serious possibility or certainly more than a mere possibly of persecution should he attempt to locate in Mexico City.

[42]  As well, as the claimant testified, he would be able to find work and a place to live, but this would not protect him from facing again, persecution or potential harm in Mexico City. This in spite of the fact that there are gay friendly areas.

[43]  So, based on the preponderance of evidence, the claimant’s testimony is very consistent with the objective evidence that is provided in the National Documentation Package.

[44]  So, based on the preceding reasons and the totality of the evidence and cumulative findings that I have just indicated, I find that the claimant has satisfied the burden of establishing that he faces a serious possibility of persecution should he return to Mexico, and therefore find that the claimant is a Convention refugee and his claim is accepted.

[45]  So, that effectively concludes the hearing, unless you would like to explain to the claimant what has transpired. I think … just judging from his reaction I think he understands what’s been said.

[46]  CLAIMANT: Yes. Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Uganda

2021 RLLR 61

Citation: 2021 RLLR 61
Tribunal: Refugee Protection Division
Date of Decision: October 29, 2021
Panel: Miranda Robinson
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Uganda
RPD Number: TC0-01000
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

MEMBER:

Introduction

[1]       I have considered your testimony and the other evidence in this case, and I am ready to render my decision orally. These are the reasons for the decision in the claim of XXXX XXXX, who claims to be citizen of Uganda and is claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons, I have considered and applied the Chairperson’s guidelines number 9, proceedings before the IRB involving sexual orientation and gender identity and expression.

Allegations

[2]       Your allegations are found in your Basis of Claims forms and narrative in Exhibit 2, as well as in the amendments in Exhibits 7, 9, and 10, and in oral testimony heard today. In summary, you allege persecution in Uganda at the hands of the government and its authorities as well as the anti-LGBTQ society for your sexual orientation as a gay man.

Decision

[3]       I find that you are a refugee pursuant to s. 96 of the Immigration and Refugee Protection Act, as there exists a serious possibility of persecution should you return to Uganda on account of your membership in a particular social group, that is, as a person that identifies as a gay man.

Identity

[4]       I find that your identity as a national of Uganda is established by the documents provided, relying primarily on the certified copies of your passports in Exhibits 1 and 4.

Credibility

[5]       I did find you to be a credible witness and therefore believe what you have alleged in support of your claim. You testified in a straightforward manner. You spoke naturally and spontaneously, and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. In particular, you testified credibly regarding how you came to understand your own sexuality and attraction to the same sex, specifically to your long-term same-sex partner, XXXX (ph), in Uganda. You explained that knowing from a young age that same-sex relationships were generally not accepted at school and in your community, and so you tried to keep your relationship secret or hidden, but it was exposed at school, and after which you were both expelled. Years later, you continued your relationship, and it also became exposed again as an adult in late July 2020 — sorry, in late July 2019. After this exposure, you allege that you were dismissed from work and you had been physically attacked by a group of strangers who used homophobic slurs. After relocating on two occasions, you also obtained a visa and departed to Canada.

[6]       I note you have also provided evidence to establish the allegations as set out above, and after reviewing the documents, I have no reasons to doubt their authenticity, and I do give weight to the following documents. To establish your sexual orientation and the other allegations, you have provided a statutory declaration and a letter of support from your same-sex partner in Uganda. These attest to the exposure of the relationship and the targeting and violence. You provided a letter from Icebreakers Uganda, which is an LGBTQ organization that you sought support from after your same-sex relationship was exposed. You’ve also provided letters, such as from the African Centre for Refugees, stating your participation in their events and programs, including the LGBTIQ Black Lives Matter protest in July of 2020, and that you have shared your experiences as a sexual minority in their awareness program. I also note they have included a brochure which includes multiple photos of you participating in the LGBTIQ Black Lives Matter protests, and additional photos that you have also provided and testified credibly about. You’ve given a letter from the friend that you stayed with after your attack in October of 2019, as well as letters of support and XXXX XXXX from the Canadian Centre for Victims of Torture, which detail your descriptions of your sexual orientation and your experiences as a result. Based on the totality of the evidence and the credible testimony, I find on a balance of probabilities that you are person that identifies as gay, that you have been in a same-sex relationship in Uganda which was exposed publicly before you came to Canada. I find your subjective fear is established.

Objective Basis

[7]       Given that there are no serious credibility issues with respect to your allegations, coupled with the documentary evidence set out below, I find you have established a prospective risk and a well-founded fear of persecution in Uganda. The risk is corroborated by Exhibit 3, the National Documentation Package for Uganda, as well as country conditions in Exhibit 6.

[8]       Item 2.1 of the NDP states that consensual same-sex sexual conduct is criminalized, according to colonial-era laws that criminalize “Carnal knowledge of any person against the order of nature,” and that these provide for a penalty of up to life imprisonment. Attempts to commit unnatural offences as laid out in the law are punishable with seven years of imprisonment, and the government has occasionally enforced the law in recent years. As well, although the law does not restrict freedom of expression or peaceful assembly, for those involved with LGBTI groups or speaking out in support of their rights, the government has severely restricted these rights, and the law does not prohibit discrimination against LGBTI persons in areas such as housing, employment, or access to government services. Item 6.1 states that authorities typically consider merely being a homosexual or being in a same-sex relationship as a breach of sodomy laws, and simply violating social norms can also create this presumption of these acts. As well, it indicates that some officials have had a much broader understanding of unnatural acts than has been defined in courts, and this has been used to justify harassment, arrest, and incarceration of sexual minorities, regardless of whether they have engaged in any illegal sexual act or not. 6.2 also details that homophobic views are widespread in society and are openly promoted in government and religion. I therefore find on a balance of probabilities the objective basis for this claim has also been established.

Nature of the Harm

[9]       I have examined your claim under s. 96 of IRPA as I conclude the risk you describe constitutes persecution based on at least one of the grounds in s. 96, specifically your membership in a particular social group as a man who identifies as a gay person. I find you are at risk of harassment, discrimination, arrest, and imprisonment for your sexuality, as well as an inability to live freely as a sexual minority.

State Protection

[10]     I find it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances as the agent of persecution is the state. As mentioned in the objective evidence, same-sex activity is criminalized throughout Uganda, and it is indicated throughout the evidence that authorities do not provide adequate protection or access to justice for victims of crimes who are LGBTQ. Additionally, police themselves are often seen as the principal violator of rights against this community, and therefore, the presumption of state protection is rebutted.

Internal Flight Alternative

[11]     I have also examined whether a viable internal flight alternative for you. Based on the evidence on file, I find that you face a serious possibility of persecution throughout Uganda. Again, the laws condemning same-sex acts and relationships are consistent throughout the country, and there is no part where you would not face persecution or that you would be able to live freely. I therefore find there is no internal flight alternative available to you.

CONCLUSION

[12]     In light of the preceding, I conclude that you are a refugee pursuant to s. 96 of the Immigration and Refugee Protection Act, and accordingly, I accept your claim today.

——————–REASONS CONCLUDED ——————–

Categories
All Countries Iran

2021 RLLR 60

Citation: 2021 RLLR 60
Tribunal: Refugee Protection Division
Date of Decision: April 6, 2021
Panel: Carolyn Adolph
Counsel for the Claimant(s): Charlotte Suzanne Cass
Country: Iran
RPD Number: TC0-00698
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision for XXXX XXXX. You are claiming to be a citizen of Iran and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       Your claim is accepted. I find that you are a Convention refugee on the grounds of being a member of a particular social group, homosexual men in Iran. Here are my reasons.

[3]       You alleged the following.

[4]       You are a citizen of Iran. You say that since you were young, you have understood that you are a homosexual, attracted to men and not to women. You say that because of this difference and because of the social taboo against your homosexual identity, you feared what would happen to you if you were conscripted into the military. You feared rape and other forms of violence if you fellow conscripts understood that you were homosexual. For this reason, you sought and obtained exemption from military service. You said you feared that the military would share information about your sexual identity with the state and you alleged that the state did indeed become involved in a process in evaluating your sexual orientation. You say that you fear persecution at the hands of the state for homosexuality, which can include imprisonment and execution.

[5]       You alleged that it is not safe for you to return to Iran and that there is no state protection for you or an internal flight alternative for you in Iran.

[6]       Your personal identity as a citizen of Iran has been established by your testimony and the supporting documents filed in the exhibits, namely a certified true copy of your Iranian passport. I find that, on the balance of probabilities, you are who you say you are, and the country of reference is Iran.

[7]       I find that there is a link between what you fear and Convention grounds, membership in a particular social group, namely homosexuals in Iran. And, therefore, I have only assessed the claim under section 96.

[8]       I find you to be a credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim form. You testified in a straightforward manner, spontaneously and at lengths, answering all questions put to you without hesitation or embellishment.

[9]       You told me you had known from a young age that you were different, but you did not know until you were 17 or 18 that there were other men like you. You told me that you had had one serious intimate relationship, and that in the year you were together with that lover, you were only able to really be together for two (2) months. You convincingly described those months. You described eating in restaurants with him and lowering your voice for certain parts of your conversation. You described walking with him holding hands and seeing the contemptuous way people around you reacted. You also explained that initially, when your psychologist warned you to try to get out of Iran because you are homosexual, you were initially not worried because you thought you could keep it hidden.

[10]     And you explained how being conscripted into the military changed your appreciation of that threat. You explained that the military in Iran is full of machoism and other forms of toxic masculinity, and that was why you took the decision to risk telling the military authorities about your sexual identity.

[11]     I find this to be credible testimony and I find it establishes your identity as a homosexual man who fears exposure and persecution.

[12]     You provided documents to support your claim. The notice from the military that said that you were exempted from service and the application that requested this exemption because of “perversions that are contrary to social and military decencies”. There was a letter from your sister who described what it was like for her to assist you in proving your sexual identity to the authorities. She corroborates your testimony about an important moment in that process. Her letter made it clear to me that she understood and accepted that you are a homosexual.

[13]     You also provided photographs with your lover as well as proof of your activities together. It is clear from those images and that correspondence that you shared that there was a real connection between you two. You showed that you had travelled together to Kish Island, including the air tickets. You also showed evidence of your involvement in LGBTQ rights in Canada and you showed that you were looking for male partners in Canada, using apps like Grindr.

[14]     Based on all of the above, I believe, on balance of probabilities, that you are homosexual. I believe that you are fearful to return to Iran, because you may be imprisoned or killed due to your identity. I therefore find that your subjective fear is established by both your credible testimony and the corroborating documents, and I believed what you have alleged on a balance of probabilities.

[15]     I also find that there is objective evidence for what you fear. The Iranian penal code criminalizes all sexual relations outside of traditional marriage, including heterosexual relations. In the national documentation package for Iran, it is noted that chapter 2 of the penal code explicitly criminalizes same-sex relations. Men engaged in homosexual acts can be executed on the first conviction involving penetration and non-penetrative homosexual acts, such as kissing or touching, are punishable by flogging. Additionally, there is a strong societal taboo against homosexuality and many young gay men face harassment and abuse from family members, religious figures, school leaders, community leaders and authorities. Some have been expelled from university for alleged same-sex relations. It is also known that high-level officials within the regime have continued to make derogatory statements about homosexuality.

[16]     I have considered whether there is a viable internal flight alternative for you, but since the state is the agent of persecution and the state exercise control over all of Iran, I find that there is no viable internal flight alternative. And similarly, I have considered whether the state should be protecting you, but since the state is the agent of the persecution, then there is no way that we can expect that the state will do the job of protecting you.

[17]     Based on the totality of the evidence, I find you to be a Convention refugee because you face a serious possibility of persecution, because you are a member of a particular social group, homosexual men in Iran.

[18]     I accept your claim.

———- REASONS CONCLUDED ———-