Categories
All Countries Turkey

2020 RLLR 16

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


DECISION

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

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

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

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

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

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

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

[8]       In terms of your general credibility, I have found you to be a credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim form. Your testimony was straightforward and was largely in keeping with your Basis of Claim form. And there are no significant inconsistencies or omissions that went to the heart of the claim.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

———- REASONS CONCLUDED ———-

Categories
All Countries India

2020 RLLR 8

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


REASONS FOR DECISION

DECISION

INTRODUCTION

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

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

DETERMINATION

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

ALLEGATIONS

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

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

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

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

ANALYSIS

Identity

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

Nexus

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

Credibility

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

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

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

Testimony of Principal Claimant

Discovery of Sexual Orientation and First Relationship

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

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

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

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

Testimony of the Co-Claimant

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

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

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

Incidents

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

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

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

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

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

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

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

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

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

Corroborating Documentary Evidence

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

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

State Protection

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

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

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

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

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

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

Internal Flight Alternative (IFA)

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

(signed)           Georgia Pagidas

June 25, 2020

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

Categories
All Countries Zimbabwe

2019 RLLR 146

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


REASONS FOR DECISION

INTRODUCTION

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

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

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

ALLEGATIONS

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

DETERMINATION

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

ANALYSIS

Identity

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

Nexus

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

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

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

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

Objective basis of future risk

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

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

Nature of the harm

[13]     This harm clearly amounts to persecution.

Internal flight alternative

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

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

CONCLUSION

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

(signed)           Harvey Savage

March 22, 2019

Categories
All Countries Uganda

2019 RLLR 145

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


DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[26]     COUNSEL: Thank you madam member.

—REASONS CONCLUDED—

Categories
All Countries Indonesia

2019 RLLR 144

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


ACO RECOMMENDATION

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

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

ANALYSIS

Identity

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

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

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

Credibility

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

Well-founded Fear of Persecution on a Convention ground:

Race

Nationality

Religion

X         Particular Social Group

Political Opinion

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

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

State Protection:

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

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

Internal Flight Alternative

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

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

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

CONCLUSION

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

(signed)           N. LeBlanc

March 26, 2019

REASONS FOR DECISION

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

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

[3]       Their claims are accepted.

(signed)           S. Bardai

March 26, 2019

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

Categories
All Countries Ukraine

2019 RLLR 143

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


REASONS FOR DECISION

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

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

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

ALLEGATIONS

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

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

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

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

DETERMINATION

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

ANALYSIS

Identity

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

Credibility and Subjective Fear

[XXX]

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

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

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

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

[XXX]

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

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

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

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

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

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

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

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

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

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

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

Objective basis of the claim

[XXX]

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

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

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

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

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

[XXX]

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

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

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

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

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

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

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

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

State Protection

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

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

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

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

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

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

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

Internal Flight Alternative

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

CONCLUSION

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

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

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

(signed)           C. Bell

October 9, 2019

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

Categories
All Countries Mexico

2019 RLLR 142

Citation: 2019 RLLR 142
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: D. D’Intino 
Counsel for the Claimant(s): Gabriella B Uteras Sandoval
Country: Mexico
RPD Number: TB9-00090
ATIP Number: A-2021-00256
ATIP Pages: 0000133-000139


DECISION

[1]       MEMBER: Alright so just let me get started here. Okay so this is my decision with respect to the claim of [XXX] File number TB9-00090. I just want to alert you sir that you are going to get a written copy of these reasons and as will your counsel and there may be some changes with respect to grammar, syntax and additional references to documentary evidence.

[2]       The claimant is a citizen of Mexico and claims refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I have considered the chair person’s Guideline 9 in this claim which relates to sexual orientation, gender identity and expression. I am required to consider these guidelines and I find them helpful.

[4]       I have considered your testimony sir and the country documentation for Mexico and the documentation you have provided and this is my decision.

DETERMINATION:

[5]       I find that the claimant is a Convention refugee on the grounds of membership in particular social group gay men. As I have made a positive determination on this ground I need not go on to analyze your claim under Section 97.

ALLEGATIONS:

[6]       Your allegations are fully set out in your basis of claim form which is Exhibit 2, in summary you have testified that you fear persecution in Mexico because of your sexual orientation and as well your HIV positive status.

[7]       You further allege that there is no adequate state protection for you in Mexico nor is there an internal flight alternative that is both safe and reasonable for you because the persecution you fear exists throughout all OF Mexico.

IDENTITY:

[8]       Your personal identity as a citizen of Mexico is established on a balance of probabilities by your testimony and by your Mexican passport which is Exhibit 1.

NEXUS:

[9]       The claimant has a number of potential nexus’s to the convention, for example as I mentioned as a gay man or as a gay man who has HIV positive status. I will accept you claim simply on the basis of your sexual orientation.

[10]     Under Section 96 the test is whether there is a serious possibility of persecution on this ground should you return to Mexico and I find that you have met this test.

CREDIBILITY:

[11]     You affirm to tell the truth in your testimony today; you confirmed that you likewise affirmed to tell the truth when you completed your basis of claim form. When a witness swears or affirms to tell the truth this creates a presumption of truthfulness unless there is evidence to the contrary.

[12]     I find that you were a credible witness. Your evidence was consistent, logical, clear and supported by highly probative documentary evidence. The evidence you gave me today and what you wrote in your narrative can be very briefly summarized as follows.

[13]     You were born and raised in Agua Linda Puebla Mexico. That growing up you were verbally assaulted and discriminated against because of choice of dress or the way you spoke which other people determined to be feminine.

[14]     You realized that you were gay from a young age and had your first relationship with a same sex partner around the age of twelve. When you moved away from home and got a job with [XXX] you were told by your boss that he did not want you to be hired because he did not want gay people working there.

[15]     On a number of occasions you were physically and verbally assaulted because of your sexual orientation. You told me about one robbery in particular where your wallet and your phone were taken and the thieves told you they had been following you and your partner and the demanded your pin, they indicated that they knew where you lived and where you worked and that they were watching you.

[16]     You came to Canada in [XXX] 2018 and subsequently claimed refugee protection. When you told your parents about your sexual orientation they had a difficult time accepting it and have still not fully accepted it as they hold out hope that you will one day have a family with a woman.

[17]     While in Canada you were diagnosed with HIV. You are currently in receipt of medical treatment and counselling. You do not believe you can return to Mexico and live openly and safely anywhere in the country as a gay man who is HIV positive.

[18]     You fear that you will not have access to your medication without which it would lead to the development of the AIDS virus and place your very life at risk.

[19]     So that is a very condensed version of your testimony and your narrative.

OBJECTIVE DOCUMENTARY EVIDENCE:

[20]     Conservative attitudes prevail in Mexico and public displays of affection between same sex partners are not considered socially acceptable and that is reflected in Item 6.2 of the NDP and Item 6.1.

[21]     Furthermore in Item 6.1 and I quote from the US Department of State report for 2017 “discrimination based on sexual orientation and gender identity was prevalent despite a gradual increase in public tolerance of LGBTQ individuals according to public opinion surveys”.

[22]     In one report information was published according to which one thousand three hundred and ten cases of killings of LGBTQ person’s motivated by homophobia were committed in Mexico between 1995 and April 30th 2016. Forty four of those killings occurred in 2015 and fifteen in the first portion of 2016.

[23]     In the last ten years in Mexico there has been an average of seventy one homicides a year of LGBTQ persons. The UN special repertoire on extra judicial or arbitrary executions noted “an alarming pattern of grotesque homicides of LGBTQ individuals and broad impunity for these crimes sometimes with a suspected complicity of investigative authorities”.

[24]     For example between January 2014 and December 2016 two hundred and two persons, sexual minorities were killed as a result of their sexual orientation or gender identity including a hundred and eight trans women, ninety three gay men and one lesbian woman.

[25]     The highest number of victims seventy six was recorded in 2016. Of the total two hundred and two victims thirty three of them showed signs of torture while fifteen showed signs of sexual violence. That is from Item 6.4 of the NDP.

[26]     From Items 6.2 I take the following two examples. On the 6th of May 2019 a group of six armed men attacked and robbed a shelter where eleven LGBTQ asylum seekers were staying setting the door of the shelter on fire.

[27]     The shelter’s legal representative informed Amnesty International that the men returned a few hours later shouting homophobic slurs and threatened to kill them if they did not leave the neighborhood.

[28]     According to the 2018 national study on discrimination against sexual and gender minorities in Mexico 41.8 percent of the respondents indicated that they did not believe that adequate public healthcare services were available for sexual minorities and 31.1 percent don’t even know if those services exist. The absence of adequate health services for sexual minorities is a noted problem in Mexico.

[29]     Furthermore in February 2019 the Federal Government noted, announced that it would no longer fund civil society organizations for activities such as outreach or HIV testing. Mexico city has the highest number of documented HIV cases in all of Mexico, despite these high infection rates medical treatment for HIV and AIDS is largely unavailable in less urban areas due to cost.

[30]     Even in areas that have free anti retro viral drugs they are usually reserved only for the sickest people. Many in Mexican society hold misconceptions about the LGBT community and HIV that further contribute to the widespread stigma associated with both HIV and LGBTQ persons.

[31]     A national survey of Mexicans found that fifty nine percent believe that HIV/AIDS is caused by homosexuality. These misconceptions and stigmas exist even among medical providers in Mexico. In fact most hospitals view homosexuality as a risk factor for HIV and often discriminate against those who seek treatment.

[32]     The Commission on Human Rights in Mexico City also reported that HIV and AIDS clinics often actively mistreat and discriminate against LGBTQ persons living with HIV or AIDS. That is from Item 6.3 of the NDP.

[33]     Claimant’s Exhibit 5 contains letters from family and friends as well as medical documentation which confirm all of the core allegations underpinning the claimant’s claim, including his sexual orientation and HIV positive status.

[34]     Relying on those items I find that there is a strong objective basis for the fear you have of being persecuted in Mexico. I also found that you subjectively fear persecution, outright violence or death in Mexico on the basis of your sexual orientation and your HIV status. Therefore I find that your fear is well founded.

STATE PROTECTION:

[35]     States are presumed to be capable of protecting their citizens but this presumption is rebuttable with clear and convincing evidence.  The NDP for Mexico quoting a number of nongovernmental organizations indicate that there are high levels of distrust in the authorities and that rights for gay people are still treated as exceptions to be granted at the discretion of local officials.

[36]     According to the US country reports for 2016, civil society groups claimed police routinely subjected LGBTQ persons to mistreatment while in custody.

[37]     According to several sources the judicial system is not effective in investigating crimes committed against sexual minorities.

[38]     Furthermore there is evidence that state actors have been and continue to be involved in forced disappearances and extra judicial killings adding to the reasons why LGBTQ persons would fear approaching the state for protection and the reference for that, references Item 2.1of the NDP at Page 4.

[39]     Another example from the NDP on August 5th of 2017 an eighteen year old man was beaten to death by a group of ten taxi drivers who worked at a taxi stand outside a gay bar in San Luis Potosi. Local human rights defenders claim the killing was a hate crime because the victim was attacked due to his sexual orientation.

[40]     The President of the San Luis Potosi state commission for human rights agreed with that. Advocates also argued negligence in investigating the case due to homophobia in the police. As of October 2017 no one had been arrested in connection with the killing. That is from Item 2.1.

[41]     From Item 6.1 according to an organization called Collectivo Leange(ph). Officials from the public ministry often mistreat LGBTQ persons and refuse to open investigations for crimes against them.

[42]     Furthermore despite the training provided to judicial authorities on sexual diversity there is still a lot of intimidation and threats against the LGBTQ population due to what they perceive as faults against morals which are then used to extort members of the LGBTQ community.

[43]     This is but a small sample of the documentation in the NDP and in the claimant’s country conditions documentation which support my conclusion that Mexico is unable or unwilling to provide protection to individuals like this claimant.

[44]     I found all, sorry I found the claimant to be credible. I find that the objective evidence supports the claimant’s evidence and that it demonstrates on a balance of probabilities adequate state protection for you in Mexico would not be reasonably forthcoming.

INTERNAL FLIGHT ALTERANTIVE:

[45]     I purpose Mexico City as an internal flight alternative outside of Puebla that I believed would be safe and reasonable in the claimant’s circumstances. For the following reasons I find that the claimant would face a serious possibility of persecution on the grounds of his sexual orientation in Mexico City and therefore the internal flight alternative location fails the first prong of the analysis.

[46]     The first prong of the analysis asks whether there is a serious possibility of persecution or a Section 97 risk on a balance of probabilities in Mexico City.

[47]     Item 6.4 of the NDP which is a response to information request on Mexico City depicts Mexico City as the most progressive area in Mexico concerning LGBTQ rights. For example there was a first district in Mexico to allow legal same sex marriage and to allow a person to change their gender identity.

[48]     One source that is quoted in this item talks about gay friendly zones or zones where the LGBTQ community feel safe from being abused. However they note that there are police officers that look for anyway to intimidate or extort same sex couples wherever they are.

[49]     The UN special repertoire on extra judicial or arbitrary executions notes that there remains broad impunity for crimes against the LGBTQ community.

[50]     According to a report by the transgender law society and Cornell University Law School, LGBTQ clinic, police harassment against the LGBTQ community remains high in Mexico City.

[51]     A 2016 report indicates that out of four hundred and twenty five person’s interviewed, one hundred and thirty nine reported some form of abuse by authorities including delays in or refusal to provide services, violence and insults. That comes from Item 6.4.

[52]     Claimant’s Exhibit 5 at Tab 22 contains articles which describe a shortage of HIV/AIDS drugs which has not yet been resolved in Mexico placing the lives of thousands of people at risk.

[53]     Again these are but a few examples of the violence and persecution that gay people face on a daily basis and Mexico City does not appear to be as safe as it is socially liberal for the LGBTQ community.

[54]     Ultimately I find that the preponderance of evidence weighs in favor of finding that the claimant would face a serious possibility of persecution on a convention ground in Mexico City and throughout Mexico. Therefore I find that Mexico City is not a viable internal flight alternative for the claimant.

CONCLUSION:

[55]     I have considered your testimony, the documentary evidence and the country conditions documentation and I find that there is a serious possibility of persecution by Mexican society generally on the basis of your sexual orientation and your HIV positive status should you return to Mexico.

[56]     I therefore find you to be a Convention refugee under Section 96 and I accept your claim for protection.

[57]     That is my decision thank you very much. Thank you so it is 11:56 I have delivered my decision we will go off record thank you everyone.

———- REASONS CONCLUDED ———-

Categories
All Countries Egypt

2019 RLLR 141

Citation: 2019 RLLR 141
Tribunal: Refugee Protection Division
Date of Decision: August 20, 2019
Panel: Y. Rozenszajn
Counsel for the Claimant(s): El-Farouk Khaki
Country: Egypt 
RPD Number: TB8-33214
ATIP Number: A-2021-00256
ATIP Pages: 0000128-000132


DECISION

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

[2]       The oral reasons form the basis of the decision and they are recorded on a CD Rom; a transcript is also produced but the transcript does not get viewed for any spelling errors or mistakes, so if there is any doubt as to the meaning in the transcription regard must be had to the original CD Rom audio recording.

[3]       So, the claimant [XXX] claims to be a citizen of Egypt and is claiming refugee protection pursuant to Sections 96 and 97.1 of the Immigration and Refugee Protection Act.

[4]       I have considered the Guidelines on Guideline 9, sexual orientation and gender identity and expression guideline, SOBI Guideline in deciding the claim.

[5]       By way of determination I find that the claimant is a Convention Refugee for the following reasons.

[6]       I find he has established a serious possibility of persecution based upon the convention ground of particular social group, which is gay men in Egypt or homosexual men in Egypt.

[7]       The claimant’s allegations are found in Exhibit 2 which is his basis of claim form and he basically alleges that he is a gay man, that he has known since 11 that he was homosexual and he likes men and is not attracted to women.

[8]       It is a very long story and I am not going to summarize all of it, but suffice to say that he likes Europe, he likes Germany, he has been many, many times to Europe. He studied there and went back and there were many attempts at seeking jobs and other forms of permanent status in Europe over the years and he just was not able to and he always came back to live in Egypt where he basically either was a recluse or he was engaged in some form of online gay dating to the best of his abilities as he could and when those platforms came on the market and (inaudible) sufficiently.

[9]       He alleges that he had great hopes for Egypt during the revolution, but it did not materialize. He alleges that ultimately he was actually entrapped while using a (inaudible) application where he was basically arrested by a couple of undercover cops who then basically abused him, took him to the station and then eventually let him go.

[10]     At that point he felt he was unsafe in Egypt and he came to Canada where he claimed refugee protection.

[11]     So, in terms of the claimant’s identity as a national of Egypt, I find he has established his identity by reason of the supporting documentation and his testimony, mainly his Egyptian passport. I find he is a national of Egypt as he alleged.

[12]     In terms of credibility, I find the claimant to be ultimately a credible witness and therefore believe what he has alleged in support of his claim. His identity as a homosexual man is supported by numerous documents, including various profiles and text messages and exchanges with various other gay men, which is in the record such as in Exhibit 10 and 11. There are a number of support letters also that testify to that.

[13]     His testimony generally consists on that particular aspect of his credibility or his story, so there is no reason to question it.

[14]     The main issues in this case were … before we get into the re-availments I would also note that there were a couple of omissions from the basis of claim form, such as the names of the officers who arrested him, but I find that I accept his explanation that they were either fake names or he did not remember or they were not actually listed properly because they were just really quick messages that did not actually mention the name. I find all that is sufficient and I find that there is really no reason to expect that he would learn the names of the undercover officers if they actually were undercover. So, I find there is no reason to doubt his credibility on that basis having heard the explanation.

[15]     The main issue really is the numerous re-availments to Egypt and failures to claim over a very, very lengthy period of time, stretching all the way to the 1990s and just the continuing ability to enter and exit Egypt constantly and really no apparent fear to return and leave Egypt as a gay man.

[16]     So, I put that to the claimant and he explained that really it has got to do with his risk profile that changed materially recently, just before he left when he was arrested which really caused him to fear his safety. Beforehand he really wanted to live he says in Europe and he made many, many efforts to get jobs in Europe and that also is corroborated and appears credible on its face as we can see in the record, given the numerous letters of responses for various jobs and permits he tried to get.

[17]     But he felt that the risk was just too high, that he would be barred from Europe in the future. He could not continue to try to get a job or that it might even lead him into more trouble if he was deported as a failed refugee claimant.

[18]     Now, I find that I ultimately accept his explanations because there is a very evident desire to leave the country, but he wanted to do it in a more commercial skilled-worker fashion and that is a legitimate reason and I find also that there is a big difference between his risk profile in those past years and the risk profile that he has now, which is he now has a record with the police, a record of arrest and so his risk profile is a lot higher than it was before.

[19]     Ultimately, you know, it is ultimately his decision as to why he chose to live as a recluse in Egypt and put himself at risk like that where he could not be openly homosexual, it is really his own problem at this point, but I find that in terms of his credibility it is sufficient that his risk profile is just different now than it used to be and so again, there is no reason to doubt his credibility and I do not find that the re­ availments are sufficient to therefore dismiss the claim in and of itself.

[20]     Having found him credible I find there is also a nexus to the convention, it clearly goes to a particular social group.

[21]     In terms of state protection I find that state protection has been rebutted in this case because it will not be reasonably forthcoming given that the agent of persecution is the State, it is the police, the undercover authorities and that is well corroborated in the Item 2.1 of the NDP, the U.S. DOS report which states that in fact the government does go online and track homosexuals who on various (inaudible) applications and they prosecute LGBTI persons on charges such as debauchery and violating teachings of religion. There are prison sentences upon conviction of up to 10 years.

[22]     According to a local rights group there have been more than 250 reports of such arrests since 2013 and while there are anti-discrimination laws they are not used to protect the homosexual individuals at all in Egypt and that is all in addition to the societal discrimination, legal discrimination and social stigma that really inhibits homosexuals from organizing and trying to defend their rights in Egypt and it is you know all corroborated.

[23]     There are reports of arrests and harassments of homosexuals in this report, including intimidation and restrictions and basically self-censorship which all corroborates the claimant’s account of basically living as a recluse most of the time in Egypt.

[24]     So, I find that there is no state protection in this case given that the state is the agent of persecution and the objective basis for these fears that are on the record.

[25]     Turing to internal flight alternative, I find that the first prong is not met in this case. There is a serious possibility of persecution I find throughout Egypt. There is no evidence of any particular city such as for example Alexandria or Giza has any more tolerant attitudes towards homosexuals compared to Cairo and there is no evidence that the state is any more tolerant and persecutory against homosexuals in other parts of Egypt, (inaudible) to Cairo which actually the most metropolitan place in the entire country.

[26]     So, I find that internal flight alterative does not exist for the claimant.

[27]     Having considered all the evidence I find that the claimant has a well-founded fear of persecution against Egypt.

[28]     I find that he has established that he has an entitlement to be considered and determined to be a Convention Refugee. I therefore accept his claim for him to be a Convention Refugee based upon a particular social group as a homosexual gay man.

[29]     That is it; thank you very much.

———- REASONS CONCLUDED ———-

Categories
All Countries Rwanda

2019 RLLR 140

Citation: 2019 RLLR 140
Tribunal: Refugee Protection Division
Date of Decision: July 23, 2019
Panel: Me Dominique Setton
Counsel for the Claimant(s): El-Farouk Khaki
Country: Rwanda
RPD Number: TB8-31167
ATIP Number: A-2021-00256
ATIP Pages: 0000124-000127


REASONS FOR DECISION

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 [XXX], who claims to be a citizen of Rwanda, and is 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 on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[4]       You allege the following: you claim to have a well-founded fear of persecution due to your sexual orientation as a homosexual man in Rwanda. You allege that you first felt that you were different at the age of 14 while in attendance at a seminary school. You confided in a friend called [XXX], who eventually lead you to connect with a group that tried to assist SOGIE people in Rwanda called Ubumwe. This lead you to meeting [XXX], also a student, with you and you became friends and lovers. You were discovered at school in the dormitory having sex by the headmaster, while the other students were class. This lead to a two week suspension, and your parents were notified. You returned long enough to write your exams to graduate, and then you returned to your hometown, but in a separate house away from the family. You continued to see [XXX]. Your father discovered this and arranged to have you arrested by police, where you were held for a week, and treated with severity. Your elder brother found a way to get you out of jail, and he made arrangements to have you sent to your grandmother’s where you stayed, in hiding. Your grandmother was ill one day and asked you to go to the store where you were spotted by people who knew you, and you fled never returning. Your bother found a safe place for you to stay and helped to make arrangements for you to leave Rwanda.

DETERMINATION

[5]       I find that you are a Convention refugee as you have established a serious possibility of persecution on account of your member of a particular social group.

ANALYSIS

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

Identity

[7]       I find that your identity as a national of Rwanda is established by your testimony and the supporting documentation filed including your passport, national identity card, and a letter from Black Cap Aids Prevention, and the Ubumwe from Rwanda, both of which identify you as a gay man.

Credibility

[8]       I find you to be a credible witness and therefore believe what you alleged in support of your claim. You provided educational documents and photos of you and your lover [XXX] in Rwanda, and you continue to be active in LGBTQ activities in Toronto.

[9]       You testified in a straightforward manner and, there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.

[10]     The panel also adverts to the principle from Maldonado v. M.E.I [1980] 2.F.C. 302, that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.

State protection

[11]     I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances. The objective documents in the National Documentation Package (NDP) for Rwanda, item at 6.1, The Rights of LGBTI People in Rwanda and item 6.2, Situation of sexual minorities, confirm that although homosexuality is not illegal, SOGIE persons are stigmatised and marginalised. The documents report that they are often jailed due to prevailing religious and cultural beliefs. Our research also confirms that in Rwanda, LGBT persons face arbitrary arrest and institutional discrimination, that human rights violations are underreported for fear of further persecution or stigmatisation.

Internal flight alternative

[12]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Rwanda. The country is very small, and the societal beliefs are the same everywhere. The claimant would not be able to continue to express himself freely as homosexual man in Rwanda.

CONCLUSION

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

(signed)           Me Dominique Setton

July 23, 2019

Categories
All Countries Ukraine

2019 RLLR 139

Citation: 2019 RLLR 139
Tribunal: Refugee Protection Division
Date of Decision: October 28, 2019
Panel: Roderick Flynn 
Counsel for the Claimant(s): Peter Neill
Country: Ukraine
RPD Number: TB8-28086
ATIP Number: A-2021-00256
ATIP Pages: 0000121-000123


[1]       MEMBER: I have considered the evidence in this case and I’m ready to render a decision orally.

[2]       The claimant, [XXX], is a citizen of Ukraine and is claiming refugee protection pursuant to s. 96 and s. 97 of the Immigration and Refugee Protection Act.

[3]       I have considered all the evidence and I find that you are a Convention refugee for the following reasons.

[4]       You have provided credible and consistent evidence that you are a bisexual man who has been persecuted in Ukraine, including a homophobic attack in December 2016, which led to a three day hospitalisation.

[5]       You have alleged that you a bisexual man who faces persecution because of your sexual orientation in Ukraine.

[6]       Your identity as a citizen of Ukraine has been established by the supporting documentation, including your passport and birth certificate.

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

[8]       You have testified in a straightforward and there were no relevant inconsistencies in your testimony or contradictions in your testimony and other evidence before me.

[9]       I am satisfied that you are a bisexual man who faces persecution in your country of origin of Ukraine because of your bisexual orientation.

[10]     I find that State protection would not be reasonably forthcoming in your case. Objective country documentation as well as the objective documentation provided by your counsel shows persistent homophobia among citizens and police, with insufficient investigation and prosecution of reports of homophobic attacks and events, including your own, because of a persistent and widespread attitude of homophobia throughout the country. This attitude of persecution has resulted in multiple reports of harassment of gay and bisexual people throughout the country.

[11]     Therefore, I am satisfied that there would be no safe place for you to return to in Ukraine because of your sexual orientation.

[12]     I conclude, therefore, you are a convention refugee and I accept your claim.

DECISION CONCLUDED