Categories
All Countries Nigeria

2021 RLLR 59

Citation: 2021 RLLR 59
Tribunal: Refugee Protection Division
Date of Decision: June 17, 2021
Panel: Zorana Dimitrijevic
Counsel for the Claimant(s): Nicholas Omere
Country: Nigeria
RPD Number: TB9-33147
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]       MEMBER: Okay, we are back on record. After considering the evidence and the testimony you provided today, I am ready to deliver my decision, which will follow.

[2]       This is an oral decision in the claim for refugee protection, for persons to s. 96 and s. 97(1) with Immigration and Refugee Protection Act in relation to the claim for the XXXX XXXX XXXX, file number TB9-33147. The Panel notes that the claimant indicates that he is a citizen of Nigeria. The Panel wishes to note that in assessing his claim, the Panel has considered Chairperson’s Guideline 9, proceedings before the IRB involving sexual orientation and gender identity and expression and a XXXX XXXX entered into evidence as Exhibit 5. The Panel knows that the claimant has lived his claim pursuant to s. 96 and the basis of his sexual orientation as a bisexual. For this reason, the Panel has been mindful of Chairperson’s Guideline 9.

[3]       The details of the claimant’s allegations are filed with the Basis of Claim form narrative in Exhibit 2. To summarize, the claimant alleges persecution from the Nigerian police and the community at large due to his sexual orientation as a bisexual man. In his narrative, the claimant states that he became aware of his sexual orientation at the age of 12, and that in 2016, he entered into same sex relationship with XXXX (ph) while in high school. In XXXX 2019, the claimant arrived to Canada on a visitor visa and asked for refugee protection on November 18, 2019 after learning about the social climate and laws on same-sex relationships in Canada. The claimant alleges that there is no state protection for him or an internal flight alternative anywhere in Nigeria.

[4]       The Panel finds that the claimant is a Convention refugee for the following reasons. The Panel finds that there is a link between what the claimant fears and one of the five convention grounds because of the claimant’s membership in a particular social group as a bisexual man. The Panel finds that, on a balance of probabilities, the claimant’s national and personal identity as a citizen of Nigeria has been established by his testimony and the copy of his valid Nigerian passport, entered into evidence. The certified true copy of the claimant’s passport can be found in Exhibit 1.

[5]       With respect to credibility, the Panel finds that the claimant was a credible witness in relation to the central issues of his claim. The claimant testified in the direct, sincere and emotional manner, and there were no omissions, inconsistencies or contradictions between his statements provided his Basis of Claim form signed in November 18, 2019 and his testimony at the hearing in relation to the central issues of the claim.

[6]       The claimant was able to explain when he became aware of his sexual orientation and the circumstances surrounding him coming to terms with his sexuality. The Panel also finds that the claimant was credible in describing his fear from the Nigerian authorities regarding the prohibition of same-sex relationships in Nigeria and explaining the consequences of someone being arrested for being in a same-sex relationship. The claimant was able to describe why, and how, he believes his return to Nigeria will lead to his potential arrest by the police and to the violence and abuse he suffered both by the police and the community.

[7]       The Panel finds that the claimant also provided detailed testimony about the issues that arose with his father after he has learned about his sexual orientation and the reasons why his father stopped communicating with him. The testimony he provided in relation to all this was very credible and the Panel accepts his, on a balance of probabilities, to be true.

[8]       The claimant also provided detailed testimony about the same-sex relationship he had in Nigeria with XXXX and provided details in this relationship that started about the claimant and XXXX were still in high school, and subsequently, continued their studies at the XXXX XXXX XXXX in Nigeria that both men attended from 2016 to 2019 as part of their preparation for XXXX XXXX. The claimant testified that the relationship with XXXX lasted from 2016 to 2019, and when the relationship ended after the claimant informed his partner about his decision to stay in Canada.

[9]       The claimant also testified about his same-sex relationship in Canada, with XXXX (ph), which was, as the claimant himself explained at the hearing, a combination of a fling and intense friendship that developed over time between him and XXXX, who is homosexual and who is also a refugee claimant from Kenya. As in evidence to the test, the claimant provided a letter from XXXX, where the author of the letter provides information about the way to friendship with the claimant developed over time, and the details of this friendship.

[10]     The Panel finds the letter to be credible, on a balance of probabilities, and assigns it full weight when assessing for the group to the claimant as it relates to his sexual orientation. The letter can be found in Exhibit 5.

[11]     The Panel finds the two claimants was credible in explaining the details pertaining to his same-sex relationships with the named individuals. The Panel finds that the claimant provided reasonable explanation for not having evidence provided by XXXX. He stated that XXXX was disappointed to learn about the claimant’s decision to not to return to Nigeria and that he still felt betrayed by the claimant. The panel accepts the explanation as credible, on a balance of probabilities, and finds that the claimant’s submission to provide a letter from XXXX does not impugn his credibility.

[12]     The Panel also has persisted evidence that establishes that the claimant is a bisexual man. This includes the claimant’s detailed testimony about the way he realized his sexual orientation, and the fear he felt at the time of this realization, as well as his fear to discuss his sexual orientation in Nigeria with anyone. The Panel places a substantial amount of weight in this testimony. As additional evidence, the claimant also provided letters from his coworkers, XXXX and XXXX, all accompanied with copies of identification documents that are equally detailed and personalized as the letter provided by XXXX and that demonstrate knowledge in the claimant’s sexual orientation and details of the reasons he decided to apply for refugee protection in Canada.

[13]     These letters were consistent and spoke as to what the authors of the letter saw. The Panel places a great deal of weight in these letters which can be found in Exhibit 5.

[14]     The claimant also provided photographs of him and XXXX from Nigeria. The Panel notes that the claimant was able to provide detailed information about the place and time the photographs were taken. The Panel finds the photographs to be credible evidence that corroborates the claimant’s allegations about his sexual orientation. In consideration of this matter as a whole, the Panel finds that the claimant has established, on a balance of probabilities, that he is a bisexual man. The Panel is therefore satisfied that the claimant has established his subjective fear.

[15]     The Panel further finds that the claimant has an objective basis for his fear because the documents at conditions for Nigeria as per the evidence in Exhibit 3, the National Documentation Package for Nigeria, herein, national package for NDP. The package provides, in Item 1.4 on page 48, that the general climate for LGBTQ persons has worsened considerably after the introduction of the same-sex marriage prohibition that was signed in January 2014. Human Rights Watch found this act in many ways, officially authorizes abuses against sexual minorities, compounding the already criminalized behaviour of the same-sex relationships. Mob attacks, violence and extortion were extensively reported in the media following the passage of the act, and LGBTQ individuals interviewed by Human Rights Watch stated that, prior to the law, objections were mainly on the basis that homosexual behaviour and same sexual behaviour, in general, was contrary to religious or cultural identities. However, following the introduction of the act, the police and the public have engaged in violations against LGBTQ people including, torture, sexual violence, arbitrary detention, extortion and lack due process. The package also provides, in Item 6.9 in page 9, that the overall sympathy for the deplorable treatment of real, or perceived, LGBTQ persons is abysmally low because speaking out against the harassment and injustice contributes religious and societal obligations and can easily be interpreted as a declaration of gayness. These factors have successfully birthed (ph) cases of extortion, police brutality, unlawful arrest, discrimination in home and workplace for LBTQ individuals in the entire country.

[16]     As well, the package provides, in Item 6.11 on page 19, that sexual minorities are generally not accepted by family members, and that the family acceptance stand for a rare exception to the rule, since it is more common that individuals with same-sex orientation become ostracized while experiencing violence and being forced to change their sexual orientation, should means of correction sections reparative therapy carried out the family members as well as security officers, health care providers, and religious and traditional institutions. Finally, the package provides, in item 6.1 on page 8, that homophobic violence is occurring without fear of consequences. There are many incidences of mob violence against LGBTQ individuals. Law-enforcement agents considered to be (inaudible) as an intervention to ease their work to enforce peace in the community. Therefore, the victims are the ones who get arrested o the basis of their sexual orientation and face more stigma and discrimination, unlawful arrest, detention extortion, and rape.

[17]     The Panel has taken all of this into consideration when assessing the claimant statements and finds that his fear of abuse and torture, as well as his awareness that in case he returns to Nigeria, he’d have to conceal his sexual orientation, are consistent with those in the objective documentary evidence regarding violence towards LGBTQ individuals. Based on documentary evidence, the Panel that finds that the claimant’s subjective fear has objective basis. Therefore, the Panel finds that the claimant has a well-founded fear of persecution in Nigeria due to his sexual orientation.

[18]     Going to the issue of state protection. Except in situations where the state is completely dysfunctional and in total breakdown, states must be presumed capable of protecting their citizens. It is up to the claimants to rebut the presumption with clear and convincing evidence that the state is either unwilling, or unable, to protect them. The same-sex sexual activity is criminalized by the federal laws throughout Nigeria and homophobic violence continues with impunity, the Panel finds that there is clear and convincing evidence that state protection would not be available to the claimant if he were to return to Nigeria. (inaudible), the Panel finds that there is nowhere in Nigeria were the claimant would not face a serious possibility of persecution.

[19]     An internal flight alternative arises when the claimant, who otherwise meets all the elements of the definition of a Convention refugee or a person in need of protection in his or her own area of the country, nevertheless, is not a Convention refugee or person in need of protection because she or he could live safely elsewhere that country. There is a test for a viable internal flight alternative and has two prongs. The Panel must be satisfied, on a balance of probabilities, that the claimant does not face a serious possibility of persecution, or be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment in other parts of the country, and the conditions in other parts of the country must be such that it would not be unreasonable in all of the circumstances, including those particular to the claimant, for him to seek refugee there. Based on the claimant’s membership in a particular social group as a bisexual man, and due to the fact that the police in Nigeria operates on the federal level, as stated in the NDP in Item 7.4, which provides in page 38 at that, that the Nigerian police force is the principal law enforcement agency in Nigeria, that the Nigerian constitution prohibits states and local governments from forming their own forces, and that the same-sex marriage prohibition act is a federal law, the Panel finds that, on a balance of probabilities, the claimant faces a serious risk of persecution throughout Nigeria. As internal flight alternative test fails on the first prong, the Panel needs not considered the second prong. The Panel finds that there is not viable internal flight alternative for the claimant in Nigeria.

[20]     Based on the totality of the evidence, the Panel finds the claimant to be a Convention refugee. His claim is therefore accepted.

[21]     COUNSEL: Thank you very much, Madam Member.

[22]     CLAIMANT: Thank you so much.

[23]     MEMBER: Thank you, and welcome to Canada.

[24]     CLAIMANT: Thank you.

[25]     MEMBER: Thank you for participating at the hearing today. Thank you, Counsel.

[26]     COUNSEL: Thank you, Madam Member

[27]     MEMBER: Do you have any questions?

[28]     COUNSEL: Any questions?

[29]     CLAIMANT: What happens now? Like what happens after?

[30]     MEMBER: Your counsel will explain you everything.

[31]     CLAIMANT: Okay, okay. Okay.

[32]     MEMBER: I wish you all the best.

[33]     CLAIMANT: Thank you so much, thank you.

[34]     MEMBER: I wish that you succeed in your plans with your further education.

[35]     CLAIMANT: And I wish that — I wish I do too. I’ll just have to work extra hard and that’s it.

[36]     MEMBER: That goes without saying. Thank you, I wish you the best, both of you. And this hearing is now concluded, thank you.

[37]     COUNSEL: Thank you.

[38]     CLAIMANT: Thank you and have a good day.

——————–REASONS CONCLUDED ——————–

Categories
All Countries Rwanda

2021 RLLR 58

Citation: 2021 RLLR 58
Tribunal: Refugee Protection Division
Date of Decision: January 6, 2021
Panel: Robert K. Riley
Counsel for the Claimant(s): Jonathan E Fedder
Country: Rwanda
RPD Number: TB9-32399
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]        MEMBER: These reasons will stand as the decision in this case. The reasons given orally today will be rendered into writing, and the claimant and his lawyer will receive the written version in a matter of weeks.

Allegations

[2]        The claimant alleges that he is a citizen of Rwanda. The claimant says that he is gay. In January 8th, 2019, he was discovered by his father kissing his same-sex partner. His influential businessman father then made allegations to police that the claimant was using drugs and molesting children. The police, apparently on instructions from the claimant’s father, beat the claimant before passing him on to a prison and a rehabilitation centre, where the claimant was beaten some more. The claimant states that he was singled out for beatings precisely because he is gay. The beatings were all intended to persuade the claimant to abandon his sexual identity as a gay man.

[3]        The claimant says he cannot live a normal and peaceful life in Rwanda as a gay man. He says that police in Rwanda are still after him and that gay persons in Rwanda cannot find anyone to go to who would help them defend their rights and their safety in Rwanda. The claimant states that the government of Rwanda will not protect him and that there is no safe place for him anywhere in Rwanda.

Analysis: Identity

[4]        The claimant has provided his passport, a certified copy of which appears at Exhibit 1. He has also provided a copy of his national identity card, a copy of which appears at page 2 of Exhibit 4. The Panel is satisfied as to the Rwandan citizenship and the personal identity of the claimant.

Credibility

[5]        The claimant testified in a straightforward and spontaneous manner with respect to the essential elements of the claim. He overcame, as did the Panel and counsel, difficulties in connecting with the interpreter. There were no contradictions or inconsistencies in the testimony that were of any import, and there was considerable consistency with the claimant’s previous declarations as contained in his Basis of Claim form. The claimant indicated that he spent approximately one month in hospital around May 2019 being treated for injuries that he suffered while in police interrogation, prison, and rehabilitation. The Panel accepts the evidence of the claimant on the core issue that the claimant is considered by the community in Rwanda as a member of the LGBT community who has engaged in a same-sex relationship, and who faces the threat of persecution at the hands of the community in Rwanda due to his sexual orientation. On a balance of probabilities, the Panel finds the evidence of the claimant to be credible and trustworthy.

Documentary Evidence

[6]        Claimant provided letters of support from his brother XXXX at pages 6 to 10 of Exhibit 4, which confirm a number of details of the claimant’s story. There are police summonses and a translation thereof found at pages 19 to 22, indicating that the claimant was being pursued by police. Although the specific charges are not outlined in the document, it does on a balance of probabilities tend to support the story that the claimant is telling. And from pages 16 to 18 of Exhibit 4, we have a letter from the claimant’s former common-law partner.

[7]        In the objective evidence, the Panel has looked at the annual report of the US Department of State, which is found at item 2.1 of the national documentation package. The report states that LGBTI persons have reported societal discrimination and abuse, including challenges to officially registering any non-governmental organizations that would be favourable to gay persons. There is mention of a famous gospel singer in Rwanda who faced harsh criticism and isolation, as well as abandonment by friends, family, his employer, and community members in Rwanda, when he came out as gay.

[8]        At item 6.1, there is a report of the situation of gays in Rwanda, and we learn that there are still instances of illegal arrests. We learn elsewhere that being gay or engaging in same-sex behaviour is not against the laws of Rwanda, so these arrests are done notwithstanding the fact that such behaviour is permitted under law. So, these illegal arrests involve people found in bars or streets, detained for a few days, and later released when police realise that there is no case to be prosecuted. A number of law enforcement, notwithstanding the laws of Rwanda, tend to believe that homosexuality falls under the offence of violating good morals.

[9]        At item 6.2 of the NDP, at page 1, we learn that being LGBT in Rwanda is taboo, LGBT persons in Rwanda face societal discrimination, and there is a stigma against sexual minorities in Rwanda. Also, at the same item on page 1, there’s a non-partisan human rights organization by the name of Human Rights First which states that Rwanda’s social environment is “rife with homophobia”. At pages 4 and 5 of the same report, we learned that Rwandans cannot be sure of getting employment or finding a residence because of the depth of discrimination against LGBT persons, and then at page 6 of the same report, it is reported that discrimination and stigmatization even occur when LGBT persons attempt to access healthcare services. So, the documentary evidence supports the allegations of the claimant and reinforces — excuse me — his credibility on the matter of his fear of persecution for engaging in same-sex behaviour.

State Protection

[10]      At page 1 of item 6.2 of the NDP, a report from Global Gays states that there is no clear path to protection in Rwanda from the intolerant attitudes of the general public. Although the Rwandan government does not actively pursue members of the LGBT community, given its indifference towards those who are same-sex oriented, it is clear that it would not be reasonable for the claimant to ask the state of Rwanda for protection.

Internal Flight Alternative

[11]      The documentary evidence indicates that the anti-LGBT attitudes prevail throughout the country. The Panel concludes that it would not be reasonable for this claimant to seek an internal flight alternative.

Conclusion

[12]      Having considered all of the evidence, the Panel [inaudible] that the claimant has satisfied his burden of establishing that there is a serious possibility of persecution on a Convention ground if he were to return to Rwanda. The Panel decides that XXXX XXXX XXXX is a Convention refugee, and the Division accepts the claim.

[13]      And I wish you the best of luck in the future, sir.

[14]      CLAIMANT: Thank you.

[15]      COUNSEL: Thank you very much.

[16]      MEMBER: Good day to everyone.

[17]      CLAIMANT: Thank you so much.

——————–REASONS CONCLUDED ——————–

Categories
All Countries Pakistan

2021 RLLR 57

Citation: 2021 RLLR 57
Tribunal: Refugee Protection Division
Date of Decision: June 14, 2021
Panel: Roderick Flynn
Counsel for the Claimant(s): John W Grice
Country: Pakistan
RPD Number: TB9-31222
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]         MEMBER: I’ve reached a decision, I’d like to read it. Counsel, does your client need word for word translation of the decision?

[2]         COUNSEL: I don’t – I don’t think so. I think based on his – his knowledge of the English language it doesn’t need to be word for word. I can certainly go through it with him afterwards as well.

[3]         MEMBER: Okay. So then I’m going to suggest that Mr. Interpreter just take a break and I just read the – the decision in one fell swoop if that’s okay.

[4]         INTERPRETER: Okay. Okay, so I’m on standby.

[5]         MEMBER: Yes.

[6]         INTERPRETER: This part.

[7]         MEMBER: Is that okay, Counsel?

[8]         COUNSEL: Yes, that’s fine.

[9]         MEMBER: Okay, great. I’m just going to go to the decision now and if there’s any problems hearing me let me know. I’ve had a chance to consider the evidence, I’m prepared to render a decision in this matter orally.

[10]       This decision will be sent to you following the hearing, it may be edited for spelling and grammar. This is a decision for in the claim by XXXX XXXX XXXX XXXX, file number TB9-31222. You are claiming to be a citizen of Pakistan and you’re seeking refugee protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act.

[11]       The determination is based upon the totality of the oral and documentary evidence presented I find you to be a Convention refugee under Section 96 of the Immigration and Refugee Protection Act by reason of your membership in a particular social group as a gay man.

[12]       A summary of the allegations is as follows. You have described you fear persecution in Pakistan because of your sexual preference. You have indicated that if you return to Pakistan you will face persecution and perhaps violence on the grounds of this sexual preference from the government, extremist groups and as well as individuals and society at large.

[13]       You’ve outlined that after discovering your sexual preference in early adolescence you hid it particularly in light of teachings from Islam which – and other messages from society indicating that homosexuality and LGBT membership was a sin.

[14]       You stated there’s no state protection for you as a member of the LGBT community in Pakistan and nowhere you can go in your home country to be safe.

[15]       On the matter of your identity, your personal identity as a citizen of Pakistan has been established by your credible testimony, the copy of your passport and the other identity documents provided and entered into evidence for this hearing. Upon a balance of probabilities that identity and country of reference Pakistan have been established.

[16]       On the matter of nexus, I find there is a link between your fear of persecution and your sexual preference as a gay man therefore your claim is being assessed under Section 96 of the Immigration and Refugee Protection Act.

[17]       On the matter of credibility, I find you to be a credible witness. You have described persuasively your discovery of your sexual preference, your relationship, your history of same sex relationships and the persecution received as a result including arrest in 2016 after you were discovered having sex with a partner.

[18]       You fled first to Denmark in 2019, shortly thereafter you came to Canada via the United States on XXXX XXXX XXXX 2019. I accept as credible that you are a gay man and that if you return to Pakistan as a member of the LGBT community you will face persecution on the grounds of this sexual preference and you would not be permitted to live openly.

[19]       I find that you’ve been – you’ve candidly shared your relationship history, your history of facing stigma and arrest because you are gay and the threat you received from a terrorist group as a result. You’ve supported your oral evidence with credible supporting documents including your national identity card, a letter from the 519 group in Toronto, a corroborating affidavit from a friend, a corroborating affidavit from a former partner with whom you were arrested in 2016, a letter from your father supporting your testimony about the details of your arrest by police and the bribe which he paid to get you released.

[20]       Based upon the evidence provided I find on a balance of probabilities you’ve established your subjective fear of persecution on the grounds of your sexual preference. Also I find on a balance of probabilities it is not appropriate in this case to make an adverse inference based upon any failure to claim in Hungry or Denmark.

[21]        Turning to the objective evidence, the objective evidence from the NDP for Pakistan supports your credible testimony. It identifies that in your country, intimate relationships between members of the same sex are actually criminalized in Section 377 of the penal code.

[22]       While the NDP acknowledges that same sex intimate contact is actually common, it never publicly – it is never publicly acknowledged for fear of reprisal from the state and particularly from members of the community at large.

[23]       The NDP fully confirms your evidence that there’s a risk of violence to you as a member of the LGBT community in Pakistan from multiple sources including the state, although prosecutions under the penal code are actually rare. But also from members of the public who are greatly influenced by the society at large and the, quote, conservative Muslim community.

[24]       The NDP also confirms that persecutory activity of the terrorist group that you had mention, Jamaat-ul-Ahrar which is identified as targeting minority groups and civilians such as yourself. Accordingly I find your subjective evidence concerning your fear of persecution as a gay man is supported by the objective evidence for the – from the NDP for Pakistan. I therefore conclude your subjective fear of persecution on the grounds of your sexual preference is well founded.

[25]       Looking at the matter of state protection. NDP also – for Pakistan also confirms that state protection is not really available to members of the LGBT community such as yourself. As noted in the DFAT (ph) report of the NDP, police in Pakistan generally refuse to take complaints or requests for protection from members of the gay community.

[26]       It is also reported that some police actually blackmail complaints who tell them that they are gay. Further, there are no laws in Pakistan which protect the LGBT community from persecution or discrimination despite longstanding calls from the international community to put these in place.

[27]       Given that your oral evidence is supported by the NDP which confirms that there’s no official legal protection, the members of the LGBT community such as yourself and no practical protection either, I find on the balance of probabilities that the presumption of state protection is rebutted in your case.

[28]       On the matter of Internal Flight Alternative, I’ve also considered whether there’s a place you can go in Pakistan and live safely. The conditions of intolerance and official systemic discrimination against members of the gay and LGBT community in Pakistan persist throughout the country.

[29]       As such I conclude on a balance of probabilities there’s nowhere in the country you can go as a gay man and live openly. As such I’m satisfied on a balance of probabilities that you would face persecution based upon your sexual orientation throughout the country and there’s no internal flight alternative for you in Pakistan.

[30]       In conclusion, based upon the totality of evidence before me both oral and documentary I conclude that you face a serious possibility of persecution based upon your sexual preference any place in Pakistan as a gay man and there’s no viable Internal Flight Alternative for you.

[31]       I therefore find you to be a Convention refugee on the grounds of your sexual preference under Section 96 of the Immigration and Refugee Protection Act. I accept your claim.

[32]       Thank you, sir. That decision that I’ve just read will be transcribed and sent to you and – and so that is basically our hearing. I’d like to give you the opportunity to say something prior to our close. Would you like to say something?

[33]       CLAIMANT: I want to express my gratitude and want to tell him that I cannot return to Pakistan and can start my life anew as a normal person here in Canada. Thank you.

[34]       MEMBER: Thank you for sharing that. Oh, sorry, I didn’t mean to interrupt.

[35]       CLAIMANT: And many, many thanks to him for understanding my situation and giving me a chance to move ahead in my life.

[36]       MEMBER: Okay, thank you. So thank you to you, I really appreciate you sharing your difficult story with me. Thank you to our interpreter and thank you to counsel. Thank you to everyone for staying a little later today and being patient throughout the document hunt that we engaged in a little earlier.

[37]       INTERPRETER: Thank you, sir. Thank you, have a very nice day.

[38]       COUNSEL: Thank you very much, Mr. Member.

[39]       MEMBER: Okay. I’m going to stop the recording now and disconnect. Is there anything else before we leave?

[40]       INTERPRETER: Nothing.

[41]       COUNSEL: No.

[42]       MEMBER: Thank you very much and have a good evening.

[43]       COUNSEL: You as well.

———- REASONS CONCLUDED ———-

Categories
All Countries Kenya

2021 RLLR 56

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

DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

———- REASONS CONCLUDED ———-

Categories
All Countries Iran

2021 RLLR 55

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

DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[23]     COUNSEL: Thank you.

[24]     INTERPRETER: (Speaking foreign language).

[25]     CLAIMANT: Thank you so much.

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

——————–REASONS CONCLUDED ——————–

Categories
All Countries Ukraine

2021 RLLR 54

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

DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[15]     INTERPRETER: Yes, Madam Member.

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

——————–REASONS CONCLUDED ——————–

Categories
All Countries Mexico

2021 RLLR 53

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

REASONS FOR DECISION

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

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

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

ALLEGATIONS

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

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

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

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

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

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

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

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

DETERMINATION

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

IDENTITY

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

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

CREDIBILITY

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

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

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

WELL-FOUNDED FEAR OF PERSECUTION

Sexual Orientation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[33]     The NDP further sates,

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

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

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

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

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

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

Cartel Jalisco Nueva Generación (CJNG)

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

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

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

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

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

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

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

[38]     While NDP item 7.12 states:

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

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

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

STATE PROTECTION

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

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

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

[44]     With regards to societal attitudes in Mexico,

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

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

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

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

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

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

[46]     In the NDP for Mexico,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

INTERNAL FLIGHT ALTERNATIVE (IFA)

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

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

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

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

Sexual Orientation

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

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

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

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

Jalisco New Generation Cartel (CJNG)

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

(signed) S. Seevaratnam

October 27, 2021

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

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

3 Chairperson ‘s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.

4 Exhibit2, BOC Form -TCl-04681.

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

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

7 Ibid., at para.9.

8 Ibid., at para. 2.

9 Ibid., at para. l 1.

10 Ibid., at para.12.

11 Ibid., at para.16.

12 Ibid.

13 Ibid., at para.13.

14 Ibid., at para.3.

15 Ibid.

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

17 Ibid., at para.6.

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

19 Ibid., at paras. 18-19.

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

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

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

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

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

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

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

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

28 Ibid., item 2.8, s.F4.

29 Ibid., item 6.2, s.2.1

30 Ibid.

31 Ibid., item 6.4, s.2.

32 Ibid.

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

34 Ibid.

35 Ibid.

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

37 Ibid., at p.20.

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

39 Ibid.

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

41 Ibid., at p. 30.

42 Ibid.

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

44 Ibid.

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

46 Ibid.

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

48 Ibid.

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

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

51 Ibid., item 6.2, s. 3.

52 Ibid.

53 Ibid.

54 Ibid.

55 Ibid., S. 4.

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

57 Ibid.

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

59 Ibid., at p.13.

60 Ibid., at p.17.

61 Ibid., at item 7.12.

62 Ibid.

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

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

65 Ibid., S. 2.1.

66 Ibid.

67 Ibid.

68 Ibid., item 2.8, s. F2

69 Ibid.

70 Ibid., s. F3.

71 Ibid, item 6.2, s. 6.

72 Ibid., S. 7.

73 Ibid.

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

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

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

77 Ibid., S. 3.3.

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

79 Ibid. item 2.1, s. Executive Summary.

80 Ibid., item 7.12 at p. 1.

81 Ibid., at p. 2.

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

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

84 Ibid., s. Disappearances.

85 Ibid., item 1.10, s. 3.

86 Ibid.

87 Ibid., s. F.3.

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

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

90 Ibid.

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

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

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

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

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

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

items, 117 pages.

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

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

98 Ibid., item 7.15, s. 4.2.

99 Ibid.

100 Ibid.

101 Ibid.

102 Ibid., item 7.18, s. 2.1.2.

Categories
All Countries Nigeria

2021 RLLR 52

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

REASONS FOR DECISION

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

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

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

ALLEGATIONS

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

DETERMINATION

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

ANALYSIS

Identity and Country of Reference Are Established

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

The Claimants’ Credibility Was Mixed

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

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

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

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

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

Nexus Is Established for The Principal Claimant

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

An Objective Basis Has Been Established for the Principal Claimant

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

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

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

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

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

The Remaining Claimants Have A Viable IFA In Port Harcourt

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

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

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

The Remaining Claimants Would Be Safe in Port Harcourt

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

[40]     His claim is therefore accepted.

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

[42]     Their claims are accordingly denied.

(signed) S. Chow

June 18, 2021

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

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

3 Chairperson’s Guideline 9: Proceedings Be/ore the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017 and The Chairperson ‘s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Guidelines continued in effect by the Chairperson on June 28, 2002, under ss. 159(l)(h) of the IRPA.

4 Exhibits 2.1-2.5.

5 Exhibit 7.

6 Exhibit 1, referring package from CBSA/IRCC.

7 Exhibit 5, p. 1-8.

8 Exhibit 5, p. 9-20.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Categories
All Countries India

2021 RLLR 51

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

DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

———- REASONS CONCLUDED ———-

Categories
All Countries Kenya

2021 RLLR 50

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

DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

———-REASONS CONCLUDED———-