Categories
All Countries Jamaica

2019 RLLR 68

Citation: 2019 RLLR 68
Tribunal: Refugee Protection Division
Date of Decision: August 8, 2019
Panel: L. Bonhomme
Counsel for the claimant(s): Robin Edoh
Country: Jamaica
RPD Number: TB8-24644
ATIP Number: A-2020-01274
ATIP Pages: 000192-000198


REASONS FOR DECISION

[1]       The claimant, [XXX], is seeking refugee protection pursuant toss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i

Determination

[2]       The panel finds the claimant to be a Convention refugee on the grounds of his membership in a particular social group, namely homosexual or bisexual males in Jamaica.

Allegations

[3]       The details of the claimant’s allegations are set out in the claimant’s Basis of Claim Form (BOC).ii In short, the claimant alleges that he was rejected, called names, mistreated and threatened with death in Jamaica because he is homosexual or bisexual.

[4]       The claimant is fearful of returning to Jamaica as he fears he will be killed or seriously harmed by his own family members, the family of the mothers of his children and the community at large.

[5]       The claimant alleges that there is not adequate state protection available to him or an internal flight alternative in Jamaica.

Identity

[6]       The claimant’s personal identity as a citizen of Jamaica has been established by the claimant’s testimony and the certified true copy of his Jamaica passport and Canadian visa on file.iii

[7]       The panel finds on a balance of probabilities that the claimant is who he says he is and that the country of reference is Jamaica.

Nexus

[8]       As the panel has found that there is a nexus between what the claimant fears and one of the five convention grounds, namely membership in a particular social group, a homosexual or bisexual male, the panel has only assessed the claim under s.96 of the IRPA.

Analysis

[9]       The determinative issues in this claim are credibility, state protection and internal flight alternative. In making this assessment, the panel has considered all the evidence, including the oral testimony, documentary evidence entered as exhibits and counsel’s submissions as well as the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.iv

[10]     The claimant testified and although he was hesitant at times and had difficulty expressing himself, the claimant appeared to be nervous and was not sophisticated. The panel took into account that although the claimant had completed secondary school it was not without some struggles, he was living in the bush for the latter part of his teenage years and he has only worked as a [XXX] for the past twenty plus years.

[11]     The claimant did not embellish his answers and was frank in sharing information that was not flattering or helpful to his claim, such as when he shared that he had married a woman in Canada in order to acquire status. This marriage lasted only one month due to the claimant’s inability to maintain the façade which was consistent with his previous relationships with women in Jamaica. The claimant’s testimony was internally consistent and he elaborated on matters only briefly summarized in the BOC.

[12]     The panel did have concerns that important details with respect to the material elements of the claim were missing from the BOC. The BOC did not contain any information about the claimant’s only relationship of import with a male which occurred in his teenage years. In his testimony, the claimant described how he was friends with [XXX] in high school and they enjoyed spending lots of time together. They were also attracted to one another and engaged in sexual activity. On one (and the last) occasion, they were caught by peers being intimate in a hut during a football game. Word spread to the rest of the community and to his father. The claimant’s father severely beat him and kicked him out of the house. [XXX] moved to Kingston. After that, the community continued to harm, harass and threaten the claimant as it was believed that he was homosexual. The claimant provided details of how he was treated, including the derogatory names he was called; being stoned; the crops in his field being destroyed; the windows of his home being broken; and being threatened to be set on fire with a tire. When the claimant was asked by the panel why this significant relationship and details of the ensuing treatment were omitted from his BOC, the claimant responded that he was scared to remember what he had been through. The panel accepts this explanation as the claimant appeared to be genuinely upset and affected by describing these events.

[13]     Although the claimant was unable to explain whether his sexual orientation was homosexual or bisexual, the panel does not draw any conclusions from this inability because the consequences to the claimant in Jamaica would be the same either way. The claimant convincingly described his physical attraction to men. As well, the claimant was able to convincingly describe his history of relationships with women. He explained that it was at his mother’s urging that he engaged in a series of relationships with women who became pregnant in order to cover up his attraction to males and to overcome the damage to his reputation caused by being caught in the hut with [XXX]. The claimant admitted that he was not always able to have sex with the women and he usually did not have feelings for the women inevitably leading to the end of these relationships. He did admit that he was somewhat attracted to and did have some feelings for the first woman.

[14]     The claimant submitted a letter from his sister in Jamaica. This letter corroborated the claimant’s allegation that he was believed by his family and the community to be homosexual. The claimant also submitted a letter confirming that he has reached out to the 519 Centre in Toronto, an organization for the LGBTQ community. The claimant testified that he was planning to participate in programming through the centre. He has connected with a male in Toronto who he is interested in but that relationship is moving slowly. The claimant was shy to share the individual’s name but was able to describe how they met and their tentative communications. The claimant explained that he was scared by what had happened to him in the past.

[15]     The claimant has established on a balance of probabilities that he is a homosexual or bisexual male. The claimant has also established on a balance of probabilities that his family and community in Jamaica are aware of his sexual orientation and that he has been harmed as a result.

[16]     Given the credible testimony by the claimant on issues going to the core of the claim as well as the corroborating documentation cited above, the panel believes what the claimant has alleged in support of his claim and finds that his subjective fear of persecution on the basis of his sexual orientation is established, on a balance of probabilities.

Objective Basis

[17]     A review of the national documentation packagev indicates that there is a climate of homophobia and violence throughout Jamaica. The documents state that homosexual acts between males are criminalized in Jamaica. While the laws are not enforced, there is a climate of hostility toward sexual minorities. Some types of Jamaican music propagate homophobia and politicians and Church leaders have made negative statements toward sexual minorities. Several sources report that sexual minorities are the target of violence in Jamaica and violence against sexual minorities is widespread and that sexual minorities may also be the targets of mob violence. Sources also report that police often fail to take action regarding incidents of violence directed at sexual minorities. In some cases, police are the perpetrators. Gay men are often reluctant to report incidents for fear of their well-being and may be extorted based on their sexual identity.

[18]     Based on the claimant’s personal experiences and the documentary evidence cited above, the panel finds the claimant’s fear of return to Jamaica to have an objective basis. The claimant has established a well-founded fear of persecution in Jamaica.

State protection

[19]     States are presumed to be capable of protecting their own citizens, except in situations where the state is in a state of complete breakdown. To rebut the presumption of state protection, a claimant has to provide clear and convincing evidence of the state’s inability or unwillingness to protect its citizens.

[20]     The claimant alleged and the panel believes that he did not seek police protection because the police themselves do not protect or assist homosexuals because they are homophobic like the rest of the community.

[21]     The panel finds the claimant’s failure to seek state protection was reasonable given the country conditions described in the national documentation package and described above. Not only do police often fail to take action regarding incidents of violence directed at sexual minorities but in some cases, police are the perpetrators.vi

[22]     The country information is clear and convincing evidence that rebuts the presumption that adequate state protection is available to the claimant in Jamaica. The panel therefore finds on a balance of probabilities that the claimant cannot access adequate state protection in Jamaica.

Internal Flight Alternative

[23]     The panel has also considered whether a viable internal flight alternative exists for the claimant. The country conditions described above exist throughout the country.vii

[24]     The panel finds that there is a serious possibility of persecution for the claimant throughout Jamaica and therefore finds that there is no viable internal flight alternative.

Conclusion

[25]     Based on the totality of the evidence, the panel finds the claimant to be a Convention refugee and the claim is accepted.

(signed)           L. Bonhomme

August 8, 2019

i Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended.
ii Exhibit 2: Basis of Claim Form.
iii Exhibit 1: Package of information from the referring CBSA/CIC.
iv 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(l)(h) of the Immigration and Refugee Protection Act, effective date: May 1, 2017.
v Exhibit 3: National Documentation Package for Jamaica version 30 April 2019: items 1.6, 2.1, 2.2, 2.4, 2.5, 6.
vi Supra.
vii Supra.

Categories
All Countries Colombia

2019 RLLR 66

Citation: 2019 RLLR 66
Tribunal: Refugee Protection Division
Date of Decision: August 26, 2019
Panel: K. Fainbloom
Counsel for the claimant(s): Terry S Guerriero
Country: Colombia
RPD Number: TB8-14474
Associated RPD Number(s): TB8-14483, TB8-14467
ATIP Number: A-2020-01274
ATIP Pages: 000185-000188


DECISION

[1]       MEMBER: These are the reasons in the decision, the positive decision for the refugee claims of [XXX], his spouse [XXX] and [XXX]’s mother [XXX].

[2]       The citizens are, the claimant’s are citizens of Columbia they claim refugee protection pursuant Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       The claimant’s referred jointly pursuant to Rule 55. The details of the claimant’s allegations are set in their basis of claim form narratives and I’m going to briefly summarize that narrative.

[4]        [XXX] the principal claimant and his partner [XXX] are a homosexual couple, active in the LGBT community in Columbia. They owned a [XXX] and lived above the business.

[5]       On [XXX] 2017 the business was targeted by homophobic graffiti. They went to the police, the policeman’s responses this is what happens when you’re a fagot. On [XXX] 2018 the principal claimant was accosted by a man who put a gun to his waist and told him that he did not want to see the principal claimant or his partner again or he would kill them. He said they knew where he lived. The principal claimant made a denouncement to the attorney general’s office on [XXX] 2018.

[6]       On [XXX] 2018 the principal claimant and his partner were accosted by the same man. The principal claimant and his partner decided they would leave Columbia with their mother. They left on [XXX] 2018 and they are afraid to return to Columbia.

[7]       Having considered the totality of the evidence before me I find the claimant’s to be Convention refugees pursuant to Section 96 of IRPA.

[8]       The nexus or connection to the definition for the two male claimants is their sexual orientation. The connection for the female claimant is her connection to her son, her connection to this family. So because of that family connection she’s connected to the definition.

[9]       With respect to their identities as nationals of Columbia this is established by the documents on file which include copies of their passports.

[10]     As to the credibility of the claimant’s allegations I have no concerns. At First they were provide their evidence in what I appeared to be a spontaneous, detailed fashion. The evidence they provided today in oral testimony was consistent with what’s been provided in written form, their allegations are consistent with the situation for sexual minorities n Columbia and finally they’ve done an admiral job of corroborating their allegations.

[11]     I’ll refer to some of the documents in Exhibit 4 these would include the two denunciations made by the principal claimant on [XXX] and [XXX]. There’s provided proof of their involvement with the foundation, for both male claimants also a reference in that letter to their receiving death threats. There are a number of corroborative statements made by siblings of the principal claimant as well as the employee hired by the claimant’s to run the [XXX]. There’s a certificate of their involvement in the LGBT community in Canada and there’s also a photograph of the [XXX] and the graffiti that was put on the [XXX] in [XXX] 2017.

[12]     So in consideration of all those factors I find on the balance of probabilities their allegations to be true, given that I accept their allegations I find that there’s sufficient objective evidence for me to find that they’re objective, positive reasons why they should fear returning to Columbia.

[13]     The documents note that in that the mistreatment of sexual minorities in Columbia has actually worsened significantly in recent years. The documents contained in Exhibit 3 including the Item at 6.1 and 6.5 refer to LGBTI person’s being subjected to acts of violence aimed at eliminating their sexual orientation and that they face sexual violence, forced displacement as well as homicide.

[14]     The document at 6.5 notes that reports of violence and discrimination against Columbia’s LGBT community have been steadily increasing in recent years and notes that discrimination is prevalent throughout Columbia and society even prevalent in high level Columbian politicians.

[15]     The documents still has been particularly extreme in Caribbean coastal regions where LGBTU rights, defenders have received death threats in which they have been declared military targets by various armed groups. At in the document provided by counsel Exhibit 4 the last Item at Page 49 makes the following statement; Columbia’s made no progress in stopping killing of lesbians, gay, bisexual and transgender people as new research showed more than one hundred were killed last year despite the overall fall in the murder rate.

[16]     So in consideration of those conditions I find that there’s an objective basis to their fear of returning to Columbia.

[17]     I’ve considered the issue of whether adequate state protection would be provided, I find in this situation it is not been provided and would not be reasonably expected to be provided should they return.

[18]     Firstly I would note the country conditions as just described the government is has not been effectively providing protection to sexual minorities that are subject to threats and violence. I would note that while the Columbian state has been putting some effort into improving state protection particularly since the peace accord with FARC the state’s ability to actually provide protection is highly limited. This is partly due to lack of presence and capacity; it’s partly due to issues of corruption as there’s information of corruption and complicity by many local, regional authorities.

[19]     The documents also note that paramilitary groups are known to infiltrate official institutions and forge alliances with public servants. Notwithstanding these the country conditions as I’ve just described the subjective experience of this couple is that they have gone to the authorities the first time they went they were insulted, when they called the authorities for assistance there was no answer and times they went to make denunciations to the attorney general’s office they were not given adequate protection.

[20]     So I find that adequate protection would not be available to these claimants. I find the issue I’ve considered is whether there might be a viable internal flight alternative available. I find that there would not be. I think the [XXX] the principal claimant’s opinion with respect to the relocation within Columbia not being feasible is reasonable and supported by the documents before me.

[21]     The more you get into rural areas of smaller cities you’re dealing with more (inaudible) prevalence of violence and threats against sexual minorities.

[22]     So I find that this couple would suffer persecution, the three claimants’ would suffer persecution anywhere in the country and that therefore there is no viable internal flight alternative available to the claimants.

[23]     In consideration of the totality of the evidence before me and the factors I’ve just reviewed I find the claimant’s to be Convention refugees. The division therefore accepts your claims.

[24]     CLAIMANT: Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Jamaica

2019 RLLR 63

Citation: 2019 RLLR 63
Tribunal: Refugee Protection Division
Date of Decision: January 29, 2019
Panel: O. Adeoye
Counsel for the claimant(s):  Robin Edoh
Country: Jamaica 
RPD Number: TB8-11977
ATIP Number: A-2020-01274
ATIP Pages: 000167-000173


REASONS FOR DECISION

[1]       [XXX] (the claimant) is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “IRPA” or the “Act”).1

[2]       In assessing these claimants, the panel considered the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.2

ALLEGATIONS

[3]       The details of the claimant’s allegations are documented in her Basis of Claim (BOC) form, as well as her oral testimony.  In summary the claimant fears persecution in Jamaica because of her sexual orientation as a Lesbian. The claimant fears persecution from the public and the authorities due to the homophobic environment in Jamaica.

DETERMINATION

[4]       The panel finds that the claimant has satisfied the burden of establishing a serious possibility of persecution on a Convention ground if she were to return to Jamaica.

ANALYSIS

Identity

[5]       The claimant has established her identity as a national of Jamaica by her testimony and the supporting documentation filed, namely a copy of her Jamaican passport.3 The original document is in custody of Immigration, Refugees Citizenship Canada (IRCC) officials.4

Credibility

[6]       The panel found the claimant to be a credible witness on a balance of probabilities and the panel therefore accepts what has been alleged in support of her claim. The claimant testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between the testimony and the other evidence before the panel.

[7]       The claimant explained about the culture of homophobia in Jamaica, how the LGBTQ community functions in a homophobic society and how life was really difficult for her as a lesbian in Jamaica. She explained how she was treated differently in her family and how her father and siblings called her names. She stated that she received the same treatments at school and the community. She explained that while at school, students would confront her verbally and assault her physically and that she was reprimanded when she reported these assaults to the teachers in the school.

[8]       The claimant explained that she became worried after personally seeing how gay persons were treated in Jamaica and that she did not have a same-sex relationship because of her fear of being harmed in Jamaica. She stated that her mother encouraged her to date men and that she tried to date men but she could not.

[9]       The claimant explained that while at the [XXX] school, she met a [XXX] teacher (Ms [XXX]), who noticed that she always kept to herself and that she was different from other girls in the school. She stated that Ms [XXX] met her parents and advised them to allow her go to a country where she would be free to be who she really wants to be. She stated that her parents were worried about her safety even though they were not happy about her sexual orientation. The claimant explained that based on Ms. [XXX]’ s advice, her mother reached out to her sister (the claimant’s aunt) in Canada and she was invited to Canada by her aunt.

[10]     The claimant testified about her current relationship and she testified with the detail and emotion that one would expect in describing such a relationship. The claimant’s same-sex partner provided a letter of support and also testified in person to provide evidence about their same-sex relationship and knowledge of the principal claimant’s sexual orientation as a lesbian.5 The panel, on a balance of probabilities found the witness testimony to be credible.

[11]     The claimant disclosed corroborative evidence which includes a support letter from her mother, who confirmed the claimant’s circumstances in Jamaica and her sexual orientation as a lesbian. She provided copies of her academic diploma, which includes her early childhood diploma from the [XXX] college in Jamaica, the school where she met Ms. [XXX]. The claimant also provided several probative pictures of herself and her current same-sex partners at community and social events including LGBT events. The claimant provided copies of text messages exchanged between the claimant and her current same-sex partner in Canada. In addition, a welcome letter of support, identification and attendance log sheet from The 519 community center was provided to the panel to support the claimant’s involvement in the LGBT community in Canada.

Delay in Claiming

[12]     The panel had some concerns regarding the principal claimant’s subjective fear due to her delay in claiming in Canada. In response to her delay in claiming in Canada, the claimant stated that she applied for a visa extension and it was denied. She stated that upon denial, she went with her aunt to an agent, who advised the claimant to make a Humanitarian and Compassionate claim. She stated that she signed some papers with the agent but the agent did not process the Humanitarian and Compassionate application. The claimant further stated that she did not know that she could make a refugee application because of her sexual orientation and that she only found out about making a refugee claim when she started interacting with the LGBTQ community and she was introduced to her current representative.

[13]     The panel accepts the explanation provided by the claimant because she made efforts to remain in Canada permanently and draws no negative inference in regards to the claimant’s subjective fear.

[14]     The panel finds, on a balance of probabilities, that the claimant is credible and the panel accepts her allegations as credible and the claimant has established her subjective fear.

Objective Evidence

[15]     The panel also finds that the claimant’s fear of harm in Jamaica because of her sexual orientation as a lesbian woman is supported by the documentary evidence.

Jamaica

[16]     The objective documentary evidence indicates that, according to sources, same-sex acts between men are criminalised in Jamaica. While sources report that same-sex acts between women are not criminalised in Jamaica, the US Department of State’s Country Reports on Human Rights Practices for 2016 specifies:

“[t]he law prohibits ‘acts of gross indecency’ ([which are] generally interpreted as any kind of physical intimacy) between persons of the same-sex.”6 Further, according to sources “despite a lack of enforcement, the existence of these laws creates a climate that sanctions violence and discrimination against sexual minorities.”7

[17]     The documentary evidence speaks to the societal attitudes and discrimination in Jamaica against members of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community. According to the Country Reports on Human Rights Practices for 2016, homophobia is “widespread” in Jamaica.8 Furthermore:

other sources note that homophobia continues to be perpetuated by the country’s music, political and religious figures and by the media. According to Human Rights First, sexual minorities “face both general societal discrimination as well as discrimination in access to services, including healthcare, housing and employment.” [citations omitted]9

[18]     The documentary evidence indicates that violence and harassment against sexual minorities continue to be problems in Jamaica:

Human Rights Watch … states that physical and sexual violence is “part of the lived reality” for many members of sexual minorities and that “the level of brutality leads many to fear what could happen if their sexual orientation or gender identity is disclosed.”10

[19]     Based on the claimant’s testimony on her personal experiences and the documentary evidence cited above, the panel finds the claimant’s fear of return to Jamaica to be objectively well founded.

State Protection and an Internal Flight Alternative

[20]     The objective evidence supports the reasonableness of the claimant’s allegations and the conclusion that state protection would not be reasonably forthcoming in this particular case. With respect to the claimant’s profile as a lesbian woman, the panel finds that state protection would not be reasonably forthcoming to her.

[21]     The documentary evidence confirms that “citizens express mistrust towards the police and their effectiveness.”11 Further sources indicate:

“bias based specifically on gender identity or sexual orientation directly contributes to the inadequate police response”. Following interviews with LGBT persons in 2013, Human Rights Watch notes that most respondents indicated that they did not report incidents of violence to the police because they believed that police would not take any action…. [W]hile individual police officers “showed sympathy” and worked on cases involving sexual minorities, NGOs [non-governmental organizations] reported that “the police force, in general, did not recognize the extent and seriousness of bullying and violence directed against members of the LGBT community and failed to investigate such incidents.”

[22]     The documentary evidence also indicates “that police officers have perpetrated violence against sexual minorities themselves.”12 Further, according to the Inter-American Commission on Human Rights:

“[p]etitioners reported abuse and discrimination against LGBTI individuals who were either ignored or laughed at when they attempted to report acts of violence, or were themselves the direct victims of police abuse, including arbitrary detention, blackmail, extortion, threats and cruel and degrading treatment.”13

Human Rights Watch noted “that while cases of police violence appear to have decreased between 2004 and 2014, ‘the persistence of even isolated cases is of great concern given the police’s role as a source of protection. “‘14

[23]     I have considered whether there is a viable internal flight alternative for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Jamaica since homophobia as per the Department of State report is widespread.15

CONCLUSION

[24]     For the foregoing reasons the panel concludes that the claimant would face a serious possibility of persecution on the basis of her sexual orientation should she return to the Jamaica. Accordingly, the claim is accepted under Section 96 of the IRPA.

(signed)           O. Adeoye

January 29, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended.
2 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
3 Exhibit 1.
4 Exhibit 1, Notice of Seizure.
5 Exhibit 9.
6 Exhibit 3, National Documentation Package (NDP) for Jamaica (31 March 2017), item 2.1.
7 Exhibit 3, NDP for Jamaica (31 March 2017), item 6.1.
8 Exhibit 3, NDP for Jamaica (31 March 2017), item 2.1.
9 Exhibit 3, NDP for Jamaica (31 March 2017), item 6.1.
10 Ibid.
11 Exhibit 4, NDP for Jamaica (31 March 2017), item 6.1.
12 Exhibit 4, NDP for Jamaica (31 March 2017), item 6.1.
13 Ibid.
14 Ibid.
15 Exhibit 3, National Documentation Package, Item 2.1, Jamaica. Country Reports on Human Rights Practices for 2015, United States. Department of State, 13 April 2016.

Categories
All Countries India

2019 RLLR 53

Citation: 2019 RLLR 53
Tribunal: Refugee Protection Division
Date of Decision: August 21, 2019
Panel: S. Seevaratnam
Counsel for the claimant(s): Ian D. Hamilton
Country: India
RPD Number: TB7-25565
Associated RPD Number(s): TB7-25583
ATIP Number: A-2020-01274
ATIP Pages: 000089-000099


REASONS FOR DECISION

[1]       The claimants [XXX] and her minor son, [XXX], claim to be citizens of India, and they are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1

[2]       The adult claimant, [XXX], alleges that she fears returning to India due to membership in a particular social group, as a lesbian. The minor claimant, [XXX] fears returning to Indian, as a member of a particular social group – family.

[3]       The mother, [XXX], consented to being the designated representative for her minor son, [XXX], for the purposes of the hearing.

[4]       The panel has carefully considered the Chairperson’s Guideline 9: Proceedings Before the Immigration and Refugee Board Involving Sexual Orientation and Gender Identity and Expression (SOGIE),2 prior to assessing the merits of this claim.

[5]       The panel has also carefully considered the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution prior to assessing the merits of this claim.3

ALLEGATIONS

[6]       The principal claimant testified that her mother deceased when she was a year old and her father was busy working in the fields, so she was raised by her father’s brother and his wife. The claimant testified that she was born with a [XXX], a [XXX]. She explained that she was constantly compared by her aunt to her aunt’s own children, whom she considered to be beautiful, whereas she would call the claimant “ugly.” Furthermore, the aunt would treat her as a servant and keep her busy by making her perform manual labour. This lifelong mistreatment and humiliation led the claimant to attempt suicide at the age of 14 by jumping into a well. She felt isolated and ridiculed. The neighbouring farmers discovered the claimant and saved her.

[7]       The claimant stated that her aunt and uncle sent their children to private schools and she was forced to attend a public school. She befriended a girl named [XXX] ([XXX])4 at school. She stated that [XXX] was in a similar predicament as her and she had a darker complexion. Both the claimant and [XXX] were of the opinion that no man would ever marry them because of their appearances.5 Over time, they formed a good friendship, which led to physical intimacy.

[8]       In grade 11, her relationship with [XXX] was discovered and the claimant was beaten by her father and aunt and her education was prematurely terminated. They arranged a marriage for her which she adamantly opposed. The claimant stated that she was forcibly married at the age of 19 to [XXX],6 who was nine years older than her. She testified that he was a drug addict and alcoholic, and that he was physically and sexually abusive to her. On one occasion, he was so sexually aggressive with the claimant that she started bleeding. She reported the incident as rape to the police and the Inspector of Police asked her to return to her husband and indicated sex was part of marriage.7

[9]       The claimant further explained that she did not enjoy any intimacy with her husband, but he tied her to the bed and frequently forced himself upon her. This led to her unwanted pregnancies. She wanted to terminate her second pregnancy, but the medical staff refused to abort the fetus unless her husband accompanied her to the hospital and consented to the procedure.8 He did not consent and so, she gave birth.

[10]     In [XXX] 2011, her married life of physical and sexual abuse continued and when she continuously attempted to flee her estranged husband’s grip, he forcibly tied her to the bed with a rope and burnt her with a hot rod on five areas of her body.9 The claimant provided photographs of the injuries she sustained and she still bears the physical and psychological scars to this day.10

DETERMINATION

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

IDENTITY

[12]     In Exhibit 1, the claimants have provided copies of their genuine passports issued by the Republic of India which were initially suspected to be fraudulent but later certified to be true copies by an immigration officer on December 24, 2017.11

[13]     In Exhibit 9, the claimant has provided a copy of the minor claimant’s birth certificate12 her 519 orientation training record,13 and her school transfer certificate issued by the Government of Tamil Nadu.14

[14]     In Exhibit 7,15 the principal claimant has provided copies of her membership documents with the 519 Community Centre, a 519 reference letter, photographs of herself with fellow members of the LGBT community, family photos, photos of her scars, and a letter from her brother, [XXX].

[15]     The panel finds the principal claimant to be a lesbian. The panel further finds both claimants to be nationals of the Republic of India.

CREDIBILITY

[16]     The panel is guided by the leading jurisprudence on the issue of credibility. Maldonado16 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.

[17]     The principal claimant was straightforward when responding to all questions. Her responses were consistent with the notes from the refugee examinations conducted on December 24, 2017, and December 27, 2017.17 Her sworn viva voce testimony was consistent with her Basis of Claim form (BOC)18 and narrative, her personal documents,19 and country condition documents.20

[18]     Having considered the totality of the evidence, the panel finds the principal claimant to be a credible and trustworthy witness. Accordingly, both claimants have established their subjective fear.

WELL-FOUNDED FEAR OF PERSECUTION

[19]     The panel has sought guidance from reliable and reputable documentary evidence regarding the current plight of homosexual men in India.

[20]     According to the current United States Department of State’s (DOS) “2018 India Human Rights Report” in the National Documentation Package (NDP):21

On September 6, the Supreme Court decriminalized same-sex relations in a unanimous verdict. Activists welcomed the verdict but stated it was too early to determine how the verdict would translate into social acceptance, including safe and equal opportunities at workspaces and educational institutions.

Lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons faced physical attacks, rape, and blackmail. LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas…

[21]     In paving the way for the future of the LGBT community, the landmark decision of Navtej Singh Johar v. Union of India suggests the following:22

It is this immense task of combatting the prejudicial attitudes which were encoded in Section 377 which has to continue. Nariman J. was cognisant of this challenge and mandated the Union of lndia to give ‘wide publicity to the judgment’ and conduct ‘sensitisation and awareness training for government officials and in particular police officials in the light of observations contained in the judgement’.

While Nariman J. emphasises the role of the Union government in combating prejudice and stereotypes in accordance with the principles of the judgment, Chandrachud J. issues an important plea to civil society to continue to work to combat prejudices and realise full equality for LGBT persons in line with the mandate of a transformative Constitution.

[22]     A World Bank report “estimates homophobia costs India $31 billion (R455bn) a year due to lower educational achievements, loss of labour productivity and the added costs of providing healthcare to LGBT people who are poor, stressed, suicidal or HIV positive.”23

[23]     The Guardian published an article in March 2019 titled, “‘There are few gay people in India’: stigma lingers despite legal victory,”24 which states the following:25

The stigma still lingers. “In India, it is a case of ethics,” says Sanjay Paswan, a member of the Bihar state council and former Indian federal minister who opposed the decision to lift the gay ban. “[Gay] people are suffering from some psychological weakness or problem or trauma. There are very [few] of them in India… “

The article further states that “[s]ocial acceptance is lagging far behind legal sanctions.”26

[24]     Counsel for the claimant acknowledged that decriminalizing and eradicating section 377 was a milestone for the LGBT community, but he pointed out that section 377 was specifically targeted at gay men. Counsel further explained that the police have numerous other laws which they utilize to charge members of the LGBT such as Anti-beggary laws,27 Nuisance laws,28 and the Immoral Trafficking Prevention Act.29

[25]     A report by the International Commission of Jurists (ICJ) titled “Unnatural Offences: Obstacles to Justice in India Based on Sexual orientation and Gender”, cites the 2015 Report of the Office of the UN High Commissioner for Human Rights, which has noted:30

“Human rights mechanisms continues to emphasize links between criminalization and homophobic and transphobic hate crimes, police abuse, torture, family and community violence and stigmatization, as well as the constraints and criminalization puts on the work of human rights defenders”…

[26]     The documentary evidence highlights the reluctance from many segments of society, including politicians and the police within India, to accept same-sex relationships.

[27]     Accordingly, the panel finds that the claimants are at risk of persecution due to the principal claimant’s membership in a particular social group, as a lesbian, and the minor claimant’s membership in a particular social group, as a family member and the son of a lesbian.

STATE PROTECTION

[28]     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.31

[29]     According to the United Kingdom (UK) Home Office report at item 6.6 of the NDP: “If the person’s fear is of ill treatment/persecution at the hands of the state, they will not be able to avail themselves to the protection of the authorities.”32

[30]     The principal claimant testified that she sought police protection when she was raped by her estranged husband and the Inspector of Police asked her to return to him.33 Furthermore, the claimant testified that the police are intolerant towards members of the LGBT community and they have the same biases as the Indian general community. She believes that police protection will not be forthcoming to her as a lesbian and to her minor son, as the child of a lesbian. She further stated that the members of the police force are one of the agents of persecution and they commit violence towards members of the LGBT community. She fears their wrath.

[31]     According an objective and recent Response to Information Request (RIR) conducted by the Immigration and Refugee Board:34

In a February 2017 report on obstacles to justice for sexual minorities in India, the ICJ states the following:

The attitude and behaviour of the police is one of the biggest barriers to queer persons’ access to the justice system in India. Several people spoke to the ICJ bout the violence, abuse and harassment they suffered at the hands of the police. Furthermore, in several cases, the police have refused to file complaints submitted by queer persons owing to bias or stereotypes.

The same source adds that

[q]ueer people’s trust in the police is further eroded by the frequency of their negative interactions with police, for instance, when attempting to register complaints regarding violence and other crimes against them at the hands of private individuals. The police’s refusal to file such complaints has seriously detrimental impact on queer persons’ access to justice and redress.

US Country Reports 2018 states that “[s]ome police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents.” [footnotes omitted]

[32]     In light of the above, “the ICJ is concerned that the police’s negative attitude towards queer people in India puts them at an increased risk of violence from non-State actors as well.”35

[33]     Furthermore, the ICJ finds that “[d]emands for justice and accountability for police abuses have led to direct forms of reprisal by the police against those denouncing their abuses.”36

[34]     In addition, “[s]everal people also told the ICJ that they believed that a lack of willing and experienced lawyers who were sensitive to issues of gender, sexuality, and queer rights in India hindered the possibility of obtaining justice in courts.”37

[35]     Finally, the ICJ report notes that, “there are few legal remedies in the law for the violence and discrimination faced by queer persons. This also makes it difficult to approach the court with cases.”38

[36]     The NDP39 and the documents submitted by the claimants40 make clear that the state is the agent of persecution and, in these particular circumstances, is clear and convincing evidence that the state is unable or unwilling to protect the claimant.

[37]     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.

[38]     For the above-mentioned reasons, it is evident that state protection would not be forthcoming for the principal claimant due to her sexual orientation and her minor son.

INTERNAL FLIGHT ALTERNATIVE (IFA)

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

(1)       As per Rasaratnam, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”41 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.42

[40]     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 punishment in all of India.

[41]     Regarding internal relocation, the UK Home Office report states that “[w]here the person’s fear is of persecution and /or serious harm by the state, they will not be able to relocate to escape that risk.”43

[42]     The UK Office further finds that “India is a vast, diverse, multicultural country, Communities vary considerable not only in size, but also in their religious, ethnic, economic and political composition – and in the extent of their adherence to traditional social and family values.”44

[43]     According to a recent Response to Information Request (RIR) conducted by the Immigration and Refugee Board reports the following:45

India Spend reports that single women have to “depend [on] somebody’s goodwill – in-laws, parents brothers and sisters-in-law” in order to provide for them and their children … [Furthermore,] single women encounter “serious struggles with basic life issues such as getting a flat on rent or being taken seriously as a start-up entrepreneur or getting a business loan or even getting an abortion.” [footnotes omitted]

[44]     The claimant testified that was used as a servant by her aunt and uncle and she was forced to perform menial tasks at home. She further explained that this was an obstacle to completing her homework and she was often punished by her teachers at school. In addition, when her father and aunt discovered her relationship with [XXX], a female school mate, they terminated her education and forced her into a marriage that she vehemently opposed. Thus, given her limited education, her estranged abusive husband, the lack of family support and as a single lesbian mother, the claimant would face a reasonable possibility of persecution from the Indian community and the Indian police, irrespective of where she lived within India. He minor son would also be subjected to ridicule and mistreatment due his relationship to his mother, a lesbian.

[45]     A recent article in the New Yorker titled, “India’s Historic Gay- Rights Ruling and the Slow March of Progress”46 concludes the following:47

A country decolonizes itself slowly. The Supreme Court’s decision on Section 377 snips away one more tether binding India to its colonial past. But the verdict resembles a strong beam of light only because it pierces through the stormy, illiberal weather around it. The other problems besetting India- a hideous right­ wing Hindu nationalism; unpunished violence against minorities and lower castes; political corruption; arrests of civic activists under trumped-up accusations; yawning disparities of wealth; the spoiling, perishing environment – are all homemade. They cannot be blamed on anyone else; that heaviness of responsibility is part of the compact of growing up. For allowing these dysfunctions to flare, and for failing to stamp them out, India will be able to blame no one but herself.

[46]     Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout the Republic of India. Thus, in the particular circumstances of the claimant, who is a lesbian single mother with a minor son, an internal flight alternative is unavailable.

CONCLUSION

[47]     The panel finds [XXX] and [XXX] to be Convention refugees. They have established that there is a reasonable chance of persecution if they were to return to their country of nationality, India, today.

(signed)           S. Seevaratnam

August 21, 2019

1 The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, sections 96 and 97(1).
2 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
3 Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
4 Exhibit 1, Package of information from the referring CBSA/CIC, Refugee Examination conducted on December 27, 2017, p.5, received January 4, 2018.
5 Exhibit 2, Basis of Claim from (BOC), Narrative, para 5, received January 15, 2018.
6 Ibid., response to q.5.
7 Ibid., Narrative, para 9.
8 Ibid., para 11.
9 Ibid., para 13.
10 Exhibit 7, Personal Documents, pp.22-26, received August 9, 2019.
11 Exhibit 1, Package of information from the referring CBSA/CIC, received January 4, 2018.
12 Exhibit 9, Claimants’ Documents, pp.9-10, received August 13, 2019.
13 Ibid., p.1.
14 Ibid., pp.2-4.
15 Exhibit 7, Personal Documents, received August 9, 2019.
16 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
17 Exhibit 1, Package of information from the referring CBSA/CIC, received January 4, 2018.
18 Exhibit 2, BOC, Narrative, received January 15, 2018.
19 Exhibit 7, Personal Documents, received August 9, 2019; Exhibit 9, Claimants’ Documents, received August 13, 2019.
20 Exhibit 4, National Documentation Package (NDP) for India (May 31, 2019); and Exhibit 8, Human Rights Documentary Evidence, received August 9, 2019. 
21 Exhibit 4, NDP for India (May 31, 2019), item 2.1, s.6 – Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity. 
22 Ibid., item 6.2, Idea of transformative constitutionalism and the way ahead. 
23 Exhibit 8, Human Rights Documentary Evidence, p. 10, received August 9, 2019. 
24 Ibid., pp.43-46. 
25 Ibid., p.44. 
26 Ibid., p.46. 
27 Exhibit 4, National Documentation Package (NDP) for India (May 31, 2019), item 6.3, s.II(A)(ii) -Anti-Beggary laws. 
28 Ibid., Nuisance laws. 
29 Ibid., Immoral Trafficking Prevention Act. 
30 Ibid., Laws regulating the police. 
31 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 
32 Exhibit 4, NDP for India (May 31, 2019), item 6.6, p.10, s.2.5.1. 
33 Exhibit 2, BOC, Narrative, para 9, received January 15, 2018. 
34 Exhibit 4, NDP for India (May 31, 2019), item 6.1, s.3.2. 
35 Ibid., item 6.3, s.III. 
36 Ibid., s.III(B – ii.). 
37 Ibid., s.IV(A). 
38 Ibid., s.IV(D). 
39 Exhibit 4, NDP for India (May 31, 2019). 
40 Exhibit 8, Human Rights Documentary Evidence, received August 9, 2019. 
41 RasaratnamSivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.  
42 ThirunavukkarasuSathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, 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.). 
43 Exhibit 4, NDP for India (May 31, 2019), item 6.6, p. l 0, s.2.6.1. 
44 Ibid., p.22, s.5.1.1. 
45 Ibid., item 5.11, s.l. 
46 Exhibit 8, Human Rights Documentary Evidence, pp.12-16, received August 9, 2019. 
47 Ibid., pp.15-16. 

Categories
All Countries Democratic Republic of Congo

2019 RLLR 46

Citation: 2019 RLLR 46
Tribunal: Refugee Protection Division
Date of Decision: October 31, 2019
Panel: Sarah Cote
Country: Democratic Republic of Congo
RPD Number: MB9-00088
ATIP Number: A-2020-01274
ATIP Pages: 000037-000041


[1]       This is the decision for the refugee claim of Mr. [XXX]. The Claimant, [XXX], a citizen of Republic of Congo is claiming refugee protection under Sections 96 and 97.1 of the Immigration and Refugee Protection Act.

[2]       The Claimant, that is you, alleges a well-founded fear of persecution for reason of his membership in a particular social group, as being a homosexual man.

[3]       The tribunal finds that the Claimant has established that there is a serious possibility of persecution on a convention ground. As for your allegations in support of your claim you allege the following.

[4]       You discovered that you were a homosexual at the age of twelve when you kissed a friend or you were kissed by a friend named [XXX] [phonetic] with whom you would continue to have about a three-year relationship. That relationship ended when [XXX] was severely attacked when you both were in a bar and he was attacked because he was perceived as a homosexual man and he was killed.

[5]       After that event you tried to commit suicide and it failed. You then left for South Africa in 2008. You also stated that over the years you had been on a number of occasions detained by the police because of your sexual orientation and then released upon the payment of bribes. When you left for South Africa you entered the country illegally with the help of a friend, [XXX] with whom you would have a relationship for a few years. And then [XXX] when he expressed his sexuality to his father you allege that he was killed by his father for his sexual orientation and you feared for your life as well.

[6]       You also tried living in Namibia with your brother who works as a pastor and because of his association with you and your sexual orientation or perceived sexual orientation by the community, your brother’s church was attacked. Your sister-in-law was also attacked. Her car was attacked and they were threatened and pointed at as performing demonic activities because of your association with them and the fact that you are a homosexual man.

[7]       You fear should you return to the Republic of Congo the police, the community which you describe as homophobic that would randomly attack you knowing or perceiving your sexuality. And you also fear the family of your deceased boyfriend which who attacked your family after [XXX] death and also would hold you responsible for the death of their son.

[8]       As for your identity I find that your identity has been established through the copy of your Congolese passport on file.

[9]       As for credibility the tribunal is bound by the principle laid out in Maldonado whereby a refugee Claimant swears that certain facts are true this creates a presumption that they are true and unless there is a valid reason to doubt their truthfulness. The tribunal did not find any relevant inconsistencies, omissions or implausibilities that weren’t reasonably explained or that would lead it to draw negative conclusions regarding your credibility as to your sexual orientation as a homosexual man.

[10]     In support of your allegations regarding your sexual orientation you had a few supporting letters. You also have a copy of your social media activities which contain photos but also homophobic remarks that are made against you. And you also had a witness that was ready to testify today but since your testimony was found to be very creditable by the board the tribunal did not think it would be necessary today to hear your witness.

[11]     As for testimony, I find that you had a very forthcoming and creditable and spontaneous testimony. You did not try to embellish your testimony and as your lawyer asked you more questions more details arise but it was plain to see that you have lived through some very difficult times and the reminiscing of all these events was emotional at some points and difficult. And this made your testimony very creditable.

[12]     You were able to speak about how you discovered your sexual orientation or you felt different as a child and that your gender expression is different as you said that people told you that you acted like a girl and ostracized you in school and you had a very hard time because of it. You also were able to speak about your relationship with [XXX] and the incident that led to his death.

[13]     As for the time spent in South Africa you were able to reasonably explain why you were not able to stay there with the death of your partner, [XXX], by the hands of his father and xenophobic climate that made you fear for your safety. And you tried to have a better life in Namibia which turned out to be even harder for you in terms of safety because of your sexual orientation.

[14]     Your allegations are supported by the documentary evidence so the National Documentation Package for the Democratic Republic of Congo, the U.S. country report indicates that there is no law that specifically prohibits homosexuality or homosexual conduct but article 330 of the Penal Code of the DRC proscribes imprisonment for three to two years and a fine for those who commit public outrage against decency and this is used by the police officers to persecute the LGBT community in Congo, in the DRC.

[15]     The National Documentation Package also indicates that there is a law that is being studied to criminalize officially homosexuality in the DRC and sexual minorities in this country are stigmatized and ostracized by the general population. They cannot have access to normal schooling as you have also told us about today. They have difficulty obtaining work, access to credit, or other financial or economic means.

[16]     The sexual minorities in the DRC are also victimized by the security forces of the state and are arbitrarily detained, are attacked physically and sexually and threatened. There are no support systems for sexual minorities in Congo, in DRC as you have also told us and this is seen in the National Documentation Package.

[17]     As for state protection and the internal flight alternative. Since state protection is not available as the police themselves persecute homosexuals and the LGBT community the tribunal finds that you would not obtain state protection from the Congolese authorities and they are an agent of persecution.

[18]     As for the IFA, the tribunal finds that you cannot be expected to deny your sexual orientation to live in your country and no matter where you would reside you would continue to have your sexual orientation and it would cause problems across the country so there is not viable IFA for you.

[19]     In conclusion, the tribunal having analyzed the evidence as a whole finds that you have discharged the burden of establishing that there is a serious possibility that you would be persecuted on a Convention ground and therefore the tribunal concludes that you, [XXX] are a “Convention Refugee”. Thank you.

Categories
All Countries El Salvador

2019 RLLR 45

Citation: 2019 RLLR 45
Tribunal: Refugee Protection Division
Date of Decision: November 7, 2019
Panel: Nicole Ginsberg
Country: El Salvador
RPD Number: MB8-25771
ATIP Number: A-2020-01274
ATIP Pages: 000030-000036


[1]       This is the decision of the Refugee Protection Decision in the claim for refugee protection of [XXX], file number MB8-25771. Ms. [XXX], you are claiming refugee protection in Canada pursuant to section 96 and sub-section 97(1) of the Immigration and Refugee Protection Act. I have considered your testimony and the other evidence in the case, and I am prepared to render my decision orally. A written version of this decision will be sent to you by mail at a later date.

DETERMINATION

[2]       I find that you face a serious possibility of persecution in El Salvador on the basis of your membership in a particular social group as a lesbian woman. I therefore find that you are a “Convention refugee” pursuant to section 96 of the Act and I accept your claim. In coming to this conclusion, I have considered the Chairperson’s guideline number nine on sexual orientation and gender identity and expression. My reasons are as follows.

ALLEGATIONS

[3]       Your allegations are contained in your Basis of Claim form, including the narrative your attached and the amended narrative that you submitted subsequently, both of which are found at document two of the evidence. In summary, you fear your former co-worker [XXX] (phonetic) will make good on the death threats he has been making about you as a result of being fired from your place of work. You also allege that as a lesbian who presents in a way you described as being masculine, you are not and will not be accepted by El Salvadorian society generally and your human rights are not respected there. You explained the death threats you suffered from [XXX], the danger he poses to you because of his particular profile, and the adverse treatment of same-sex relations and of LGBTQ people in El Salvador generally, including the lack of regard for LGBTQ rights by El Salvadorian authorities and the unwillingness of the authorities to protect LGBTQ persons there.

[4]       You allege that you are a lesbian and have been in a same-sex relationship with a woman, [XXX], I’ll… I’ll spell that now [XXX]. Is that correct? Ok. For over 11 years, since [XXX] 2007. Your relationship continues to this day. You allege that you have suffered harassment and ill­ treatment in El Salvador from as far back as 2004 as a result of your perceived sexual orientation and have had to live in fear that people would find out. You relayed several incidents of having endured insults and threats from strangers as a result of being perceived as a lesbian, to the extent that you have feared for your life. You explained that same-sex relationships are not accepted in El Salvadorian society generally and the authorities demonstrate an unwillingness to help LGBTQ people. You allege that you have had to keep your sexual orientation secret and that you come from a religious family that does not accept same-sex relationships. Your mother does not accept your being a lesbian, and your father told you that if he found out one of his children was homosexual, he would poison their soup.

[5]       You allege that as a [XXX] at [XXX] in La Libertad, you told an employee’s supervisor about his lack of respect for work hours and that this person, XXXX, lost his job as a result. He began harassing and insulting you based on your sexual orientation and he showed another co­worker a gun that he said he intended to use on you. You allege the death threats must be taken seriously in a country whose security situation is as precarious as El Salvador’s, particularly as an LGBTQ woman who cannot rely on the protection of the police. And, that [XXX] is known to have… to take part in criminal activity and has family political ties. You fled El Salvador on [XXX], 2018, soon after the threats from [XXX] began, and came to Canada where you made your claim for refugee protection.

ANALYSIS

IDENTITY

[6]       Your personal and national identity as a citizen of El Salvador is established on a balance of probabilities by your testimony and by the documentary evidence on file, including a copy of your El Salvadorian passport at document one.

NEXUS

[7]       Your allegations establish a nexus to the Convention ground I identified earlier and I have therefore analyzed your claim pursuant to section 96 of the Act.

CREDIBILITY

[8]       Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness. In this claim, I have no such reason. I find you to be a credible witness. You testified today to be a straightforward, open and sincere manner. You were spontaneous in your answers to my questions, and I do not find that you tried to embellish or exaggerate your allegations during your testimony. You testified credibly and in detail during the hearing about your attraction to women, how you came to realize that you were somehow different, as you say, as a child, and your attraction to women and girls in your adolescence. You testified credibly about your relationship with [XXX], how you met, how your relationship changed from being co-workers to being romantic partners, and about how you had to carry on your relationship in secret, with people believing you were roommates.

[9]       You further testified credibly about your life in Canada as an openly lesbian woman, and the freedom you have found to express yourself, in particular to dress in a way to you have described as masculine. You explained how your job at a men’s suit retailer is your dream job because you finally are able to wear a suit and tie to work everyday. You testified credibly about the treatment of lesbians and LGBTQ people in El Salvador, in law and society. Specifically, you explained that people don’t want to see LGBTQ people for who they are, and often treat them as invisible. The authorities don’t take their complaints seriously. It would be… It would not be safe to be out in the open about a same-sex relationship there or to express oneself with a gender expression not considered binary or mainstream. Your testimony was consistent with the allegations in your Basis of Claim form, and also included some more specific details that were not contained in your Basis of Claim form, but these details allowed me to better and more fully understand your claim.

[10]     You further provided corroborative documentary evidence in support of your allegations. Several… well… Including the following. Photos of you and your partner and your dogs, who you explained are like your children, at exhibit 1… C-1. Photos of you at pride events, also at C-1. Photos of you dressed for work at the [XXX] at which you work in Canada in the same exhibit. Letters from LGBTQ organisations in Canada concerning your involvement, including the women’s choir and a Valentine’s dance from exhibits C-2 to C-6. Sworn statements from three co­workers from [XXX] concerning the threats by [XXX] at exhibits C-15 to C-17. A letter of employment from [XXX] at C-14, declaration of cohabitation with [XXX] at C-13, and several articles concerning the situation of LGBTQ people in El Salvador at exhibit C-20 through C-23. There were… There were no relevant contradictions, inconsistencies, omissions between your Basis of Claim form, your testimony at the hearing and the documentary evidence on file.

OBJECTIVE BASIS

[11]     Your allegations are consistent with the objective country documents before me concerning the treatment of lesbians in El Salvador. For example, although we see same-sex relations are not criminalized in El Salvador, as we see from the objective documentary evidence, for example in tabs 2.1 and 6.3, there are some laws prohibiting discrimination based on sexual orientation and gender identity enforced in the country including in regards to housing, employment, nationality and access to government services. However, the objective documentary evidence is clear about the significant legal vacuums that exist for the protection of LGBTQ people in El Salvador. There is widespread stigmatisation of LGBTQ people, and no general non-discrimination law to protect marginalized people in El Salvador. That’s found at tab 6.3. The objective documentary evidence indicates that El Salvador LGBTQ people are particularly exposed to violence in El Salvador which is linked to the discrimination they face on various fronts in their family life and working life, and it’s part of society generally. This relates to not only sexual orientation but gender expression as well. This is particularly troubling in El Salvador as it is among the most violent countries in the world. This is at tab 6.1 of the National Documentation Package. There is no official government data on hate crimes or bias motivated violence against LGBTQ people in El Salvador, but the evidence is replete with examples of violence against LGBTQ people and a lack of will on the part of the State to bring perpetrators to justice. That’s found at tab 6.3. The evidence also points to grave deficiencies in the country’s justice system and a lack of access to justice for LGBTQ people.

[12]     Not only do they face obstacles in reporting crimes against them because of the widespread social stigmatisation and the lack of acceptance, including within law enforcement, perpetrators often face impunity in cases of violence, that is at tab 6.3. This document also discusses the bias against the LGBTQ community that is prevalent within the police and justice sectors themselves. One cannot forget the background against which violence against LGBTQ community members occurs in El Salvador, that has been described as the murder capital of the world with a rate of 116 murders per 100 000 people in 2015. That’s also at tab 6.3.

[13]     The claimant has also provided… or, pardon me, you have also provided documentary evidence concerning the human rights situation of the LGBTQ community in El Salvador, the lack of police protection, and incidences of violence against the community. The research pieces at tab 6.2 also discusses in detail the pattern of systemic discrimination and violence against the LGBTQ people by the Salvadorian law enforcement itself. For all of these reasons and country conditions, I find you to be credible. I therefore find you’ve established on a balance of probabilities that you are a lesbian, that you were subjected to death threats at the hands of your former co-worker [XXX], and that you have otherwise experienced harassment and mistreatment in El Salvador as a result of your sexual orientation and it can also be said as a result of your gender expression. I also find that you have demonstrated subjective fear in El Salvador, that in view of the objective country evidence, is objectively well-founded.

STATE PROTECTION

[14]     I find that you have rebutted the presumption of State protection with clear and convincing evidence that the Salvadorian state would be unable or unwilling to provide you with adequate protection. The documentary evidence is replete with information about the risks facing people of the LGBTQ community in El Salvador and the lack of State protection for such people, including a widespread pattern of systemic discrimination and violence by law enforcement itself. This is found most pointedly at tab 6.2 as well as the country documents submitted by you. In addition, I have discussed above the legal vacuums that exist to protect LGBTQ people in El Salvador, including the absence of a general non-discri… discrimination law and a lack of enforcement of violent crime and harassment against LGBTQ people. For all of these reasons, I find that you have rebutted the presumption of State protection.

INTERNAL FLIGHT ALTERNATIVE

[15]     I find that you face a serious possibility of persecution throughout El Salvador as a result of the widespread stigmatisation of same-sex relations through El Salvador, the legal vacuums and lack of willingness from police to protect LGBTQ people, and moreover, the pattern of discrimination and violence actually perpetrated against LGBTQ people by law enforcement itself. The violence and lack of regard for human rights of LGBTQ people persists throughout the country, as does the lack of State protection. You have also testified credibly that people have explained to you [XXX] criminal involvement, his political connections through his father and his pattern of impunity from offenses like drunk driving because of those connections. Moreover, you would not be expected to ignore your sexual orientation if you were to return to El Salvador. I find that if you were to live your life as a lesbian in El Salvador, particularly one who presents in a way that you describe as masculine, you would face a serious possibility of persecution at the hands of members of the public, the authorities and [XXX]. Because you have a serious possibility of persecution anywhere in El Salvador, I will not analyze the second prong of the… of the IFA. For all of these reasons, I find that there is no viable internal flight alternative for you in El Salvador.

CONCLUSION

[16]     For all of these reasons, I find that you have established on a balance of probabilities that you have a subjective fear of return to El Salvador that is objectively well-founded. Having considered all the evidence, including your testimony, I find that you, [XXX] face a serious possibility of persecution in El Salvador on the Basis of your membership in a particular social group as a lesbian. I therefore find that you are a “Convention refugee” pursuant to Section 96 of the Act and I accept your claim. So, this concludes your hearing.

Categories
All Countries Lebanon

2019 RLLR 43

Citation: 2019 RLLR 43
Tribunal: Refugee Protection Division
Date of Decision: August 30, 2019
Panel: Darin Jacques
Country: Lebanon
RPD Number: MB7-22271
ATIP Number: A-2020-01274 
ATIP Pages: 000017-000021


[1]        The claimant, [XXX] (file number MB7-22271) is a citizen of Lebanon. He has claimed refugee protection under Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]        I find that you have established a well-founded fear of persecution and I conclude that you are a “Convention refugee” as per Section 96 of the Act.

[3]       In your allegations you provided me with detailed information about your discovery that you were different than other people and that you were attracted to men. You mentioned that you went to Dubai to work.  You eventually lost your job because your sexual orientation was discovered by a manager because you had to maintain employment to remain in the UAE. You had to return to your country of citizenship, Lebanon.

[4]       You mentioned you weren’t long in Lebanon before you were socializing with other gay men. The police what seems to be harassment techniques were staying outside of these areas and you mentioned this morning that how raids are performed, but in your case they seemed to have picked you up and targeted you. They took you to the police station.  They forced you to pay a bribe, but you indicated the implications could have been a lot more serious. They could have held you indefinitely. And there are also laws against that they could have used to charge you.

[5]       So you did pay to secure your release. You just stayed inside. You mentioned this morning that you even ordered food out and that you remained in your apartment. And you decided that you had to leave the country and you came to Canada and claimed refugee protection.

[6]       Now when I’m assessing a claim for refugee status, there are several things I need to take into consideration. Some of those things we discussed this morning directly and for other things I was just able to look at the information in your file.

[7]       Now the first is your identity. The Act, the law requires me to take into account whether claimants have acceptable documentation establishing their identity. In your case, that was easy. You had a passport from Lebanon which contained a visa to Canada. And these documents are sufficient to establish your identity for our purposes this morning.

[8]       The second issue is credibility. When you were testifying this morning, you benefitted from a presumption that your allegations were true. And in speaking with you this morning, I found no reason to doubt your credibility. During the hearing, I asked you numerous questions about your sexual orientation. As an example, you specifically explained the difficulties of living in Lebanese society as a gay man. You also spoke about the… with particularly poignancy about the emotional impact not being able to tell your family had on you.

[9]       Furthermore, you provided some specific evidence to corroborate your allegations. In particular, you provided photos participating in Pride events and you have provided letters and other communications from individuals who are aware of your sexual orientation. In my view, you have provided sufficient evidence to establish your allegations on a balance of probabilities and I conclude that you fear persecution because you are a gay man from Lebanon.

[10]     Now the law requires that a person have a well-founded fear of persecution that is based on a Convention ground. In your case, I find that you face a serious possibility of persecution because of your membership in a particular social group. Now I’ll explain.

[11]     According to the law in Canada, a particular social group includes persons belonging to sexual minorities. And as I just mentioned, you credibly established that you are a gay man from Lebanon. Furthermore, you demonstrated that you face a violation of your basic human rights and I return most specifically to the incident of arrest and your mistreatment by the police. I’ll also mention that is in a context where you are forced to live your sexual identity clandestinely in Lebanon which in itself has a negative cumulative effect on your ability, your well-being.

[12]     The documentary evidence establishes an objective basis for your fear of persecution beyond what you have told me. In Lebanon, sexual minorities are persecuted perhaps less than elsewhere in the Middle East. However, sexual minority groups remain ostracized by Lebanese society. There are sexual assaults, blackmail and threats are common.

[13]     And for all of these reasons, I find that you face severe mistreatments in Lebanon because of your sexual orientation. And pursuant to my findings on State protection, I conclude that your fear of persecution is well-founded.

[14]     Now I just mentioned State protection. The case law on refugee claims establishes a presumption that a State is capable of protecting its citizens. In your case, however, I find that adequate State protection is unavailable to you in Lebanon.

[15]     As you mentioned in your narrative and you mentioned it again this morning, article 534 of the Lebanese Penal Code prohibits sexual acts which are contrary to nature. And sources report that this provision has been interpreted as banning same-sex relations. Despite other interpretations by the Courts, these provisions are still used by law enforcement to discriminate against sexual minorities and you provided an example of your own experiences this morning and in your narrative.

[16]     The U.S. Department of State reports incidents of violence or discrimination against sexual minorities that are rarely reported. LGBT persons don’t speak to the police or seek legal protection because the authorities consider their relations to be illegal. Sexual minorities fear their exposure of their sexual orientation which represents an obstacle for seeking redress. So in effect, the available documentation indicates that Lebanese authorities are unwilling to provide adequate protection to sexual minorities. And given your particular circumstances, I find that there is clear and convincing evidence sufficient to refute the presumption of State protection.

[17]     Now the final thing I needed to consider was what we call an internal flight alternative, whether you could have moved elsewhere in Lebanon and live safely. This is because the Act requires claimants to demonstrate that they face persecution or risk throughout their countries of nationality. Now in your case, I find that an internal flight alternative does not exist for you in Lebanon.

[18]     According to the documentary evidence … I’m just hanging on to my voice here… in the City of Beirut, there is a growing acceptance of the gay community but it is not reflected in the rest of Lebanon. There are bars and there are clubs that specifically cater to the LGBT community which you mentioned. However, as you also mentioned, homosexuality remains strongly condemned. LGBT persons are verbally abused and sometimes attacked in the street. Conditions require members of sexual minority in Beirut to exercise considerable “discretion”.

[19]     In the present case, I find that you could not relocate within Lebanon and avoid a serious possibility of persecution. You could not live openly as a gay man, as is your right. In effect, I conclude that a viable IFA is not open to you in your country of nationality.

[20]     So in conclusion, I find that you face a serious possibility of persecution based on your membership in a particular social group.

[21]     I conclude that you are a “Convention refugee” as described under Section 96 of the Act. Your claim for refugee protection is therefore granted.

BY CLAIMANT

[22]     Thank you.

Categories
All Countries Democratic Republic of Congo

2019 RLLR 41

Citation: 2019 RLLR 41
Tribunal: Refugee Protection Division
Date of Decision: April 24, 2019
Panel: Jason Benovoy
Counsel for the claimant(s): Kibondo Max M Kilongozi
Country: Democratic Republic of Congo
RPD Number: MB7-10366
Associated RPD Number: MB7-10385
ATIP Number: A-2020-01274
ATIP Pages: 000001-000011


REASONS FOR DECISION

INTRODUCTION

[1]       Mr. [XXX] is a citizen of the Democratic Republic of the Congo (DRC). His son, [XXX] is a citizen of South Africa. They are seeking asylum in Canada under sections 96 and 97(1) of the IRPA.

ALLEGATIONS

[2]       The claimant is seeking asylum in Canada because of the threats and mistreatments he endured following his activism in the lesbian, gay, bisexual, and transgender (LGBT) community in the DRC and South Africa

[3]       He also claims to fear a return because of his involvement in UNAFEC, the Union National des Federalistes du Congo.

[4]       If he were to return to South Africa, he fears that underground militias working for Kabila would mistreat him, or that he would be detained and secretly deported to DRC. He also fears that he would be mistreated in South Africa because of his work with the LGBT community.

[5]       He claims to have been detained in [XXX] 2014 in the DRC when he was returning from a UNAFEC meeting. He claims to have been beaten, and suffered serious injuries as a result of this detention. He claims to have been released on bail after this detention by bribing a guard.

[6]       After this incident, the claimant alleges that he left the DRC for South Africa, where he had permanent residency. He claims to have been attacked and raped in South Africa because of his advocacy work to further the rights of members of the LGBT community.

[7]       He sought medical treatment and made a police report after this attack, yet he claims that no action was taken by the authorities. He left South Africa on [XXX], 2017 for Canada. He signed his Basis of Claim form (BOC) on August 14 2017.

[8]       His son, [XXX] bases his claim on the allegations of his father.

DECISION

[9]       The tribunal concludes that [XXX] is a “Convention refugee”. However, the tribunal does not believe that his son, [XXX] is a “Convention refugee”, or a “person in need of protection”.

ANALYSIS

Identity

[10]     The claimants’ identity was established by their passports, issued by Congolese and South African authorities.1

Exclusion under section 1E – Permanent Residency in South Africa

[11]     As mentioned, the claimant declared that he was a permanent resident of South Africa. The tribunal therefore examined whether the claimant had a reasonable fear of persecution or if there exists, on a balance of probabilities, a risk of harm under section 97(1) of the IRPA in this country.

[12]     At the hearing, the claimant testified credibly about a brutal attack that he endured while living in South Africa. The claimant testified that he was attacked and raped in his home by unknown agents, as a means to repress his work advancing the rights of the LGBT community in South Africa. The claimant also submitted credible evidence confirming this attack, such as a detailed medical report describing his injuries.

[13]     The tribunal noted the visible effort, anguish, and pain required to recall these events at the hearing. The tribunal noted no contradictions, omissions, or incoherencies that could affects its appreciation of the claimant’s credibility concerning these allegations.

[14]     Given the nature of his advocacy work – working with LGBT youth – and the credible account of the claimant being brutally attacked because of this work, the tribunal examined the documentary evidence pertaining to the treatment of LGBT activists and members of this community to ascertain whether an objective basis for his claim exist against South Africa.

[15]     The NDP points to systemic patterns of abuse and violence towards members of the LGBT community, including incidents of rape by security forces, and “secondary victimization” by state actors of members that reported abuse. The evidence also points to a higher degree of vulnerability of members of this community because of societal and police attitudes against them2.

[16]     The tribunal concludes that the documentary evidence establishes that there is an objective basis to support his fear of persecution if he were to return to this country. This establishes that there is exist a serious possibility of persecution for the claimant in South Africa, as someone with an imputed sexual orientation as belonging to the LGBT community.

State Protection

[17]     Although South Africa does not criminalise same-sex relationships, the documentary evidence consulted by the tribunal indicates that members of the LGBT community face violence and victimization by the police, with investigations in crimes committed against this community “often insufficient”. There are also reported incidents of security forces members raping members of the LGBT community during arrests3.   Given this evidence, the tribunal does not believe there is adequate state protection in South Africa for the claimant.

Internal Flight Alternative

[18]     Given the documentary evidence that indicates that a majority of the South African population believed that same-sex activity was morally wrong4, and that state agents have been found to commit some of the more brutal acts of violence against the LGBT population, the tribunal believes that there exist no viable internal flight alternative in the country as the claimant would face a serious possibility of persecution throughout South Africa.

[19]     In summary, given that the tribunal believes the claimant in his account of being brutally attacked for his activism in the LGBT sector in South Africa, coupled with the documentary evidence of systemic abuse and violence against this community, the tribunal believes that the claimant faces a serious possibility of persecution because of activism and imputed sexual orientation where he to return to South Africa. For this reason, the tribunal determines that he is not excluded following section 1E of the Convention because of his status as a permanent resident of South Africa.

Inclusion

Credibility

[20]     The tribunal found significant credibility issues with the claimant’s testimony concerning the specific allegations of political involvement and mistreatment in the DRC.

[21]     Firstly, the tribunal noted a contradiction between the claimant’s written narrative, and the declarations he made in the IMM5669 form, at question 9 concerning his political involvement in the DRC.

[22]     In his written narrative, the claimant alleges that he belonged to the UNAFEC political organization. He claims to have been designated to represent this party in South Africa, as part of an international expansion effort. Additionally, at the hearing, the claimant further explained that he was drawn to the organization because he adhered to their programs, and believed in their philosophy. He finally stated that he joined in 2010.

[23]     However, the tribunal noted that the claimant did not indicate any form of participation in this party in his IMM5669 form, at question 9. When confronted by this contradiction, the claimant answered that he disclosed his involved with this organization in his written narrative, and did not want to duplicate the information.

[24]     The tribunal considers that this explanation in unreasonable.

[25]     The claimant’s alleged participation in this organization seems to be the main reason he was arrested, detained, and mistreated in his home country. It is therefore a central allegation of his claim, and as such the tribunal would have expected the claimant to mention his participation in this organization when asked to declare “what organizations you supported, been a member, or been associated with?”5. The tribunal does not see how “duplicating” the declaration that he belonged to this political organization would be detrimental in establishing this central allegation of his claim. Moreover, the tribunal noted that the claimant listed a number of other organizations he supported, such as the Liberal Party of Canada, Amnesty International, and others. The tribunal finds it therefore further unreasonable that he omitted to indicate his participation in UNAFEC in this form.

[26]     The tribunal draws a negative finding from this contradiction, which undermines the claimant’s credibility.

[27]     Moreover, the tribunal noted a significant incoherence in his oral testimony concerning the means by which he was released from detention.

[28]     At the hearing, the claimant testified that one of the prison guards told him that he looked like one of his old professor, Mr. [XXX]. The claimant then alleges to have answered that professor XXXX was in fact his brother. The claimant would have then pleaded with the guard, asking him to contact his brother, which eventually led to his release through the payment of a bribe. However, the tribunal noted in the claimant’s BOC form indicates that his brother [XXX] passed away on XXXX XXXX, 20136, before the claimant was allegedly placed in detention in [XXX] 2014. Consequently, the claimant’s brother could not have arranged the alleged bribe that would have secured his released.

[29]     When confronted by this incoherence, the claimant answered that his brother passed away in 2014, and not 2013.

[30]     The tribunal finds that this explanation is unreasonable.

[31]     At the beginning of the hearing, the claimant confirmed that his BOC form was true, complete, and accurate, and that he had no amendments of modifications to make. Indeed, the claimant seems to have added the date at which his brother passed away after the initial signature of the form, as this information was added by hand next to his typewritten answers. The tribunal therefore believes that the claimant had all the opportunities to make changes to his BOC form and notice this alleged mistake, yet no changes were made.

[32]     Given the significance of the claimant’s brother’s involvement in securing his released from detention that allegedly occurred in [XXX] 2014, the tribunal draws an important negative finding from this incoherence, which once again affects the claimant’s credibility.

[33]     Moreover, the tribunal noted that the claimant’s Congolese passport7 was renewed after he had been released, and while he was residing in South Africa. The claimant mentioned at the hearing that after his released from detention, and subsequent trip to South Africa, he had not returned to his home country. He added that he believes that the Congolese government still “has eyes on [me]”, that he is still in their system because he was detained and escaped (through bribery), and if he were to return, he could be persecuted, tortured, and killed.

[34]     However, the tribunal noted that his current passport was issued in Kinshasa. When asked to explain how his passport was issued in Kinshasa if he hadn’t returned to his country, the claimant mentioned that his brother renewed his passport on his behalf.

[35]     Although not an expert in Congolese administration, the tribunal finds it at the very least unusual that the claimant’s new passport contained his signature, despite being renewed without his direct involvement. When asked to explain how his new passport could contain his signature if he did not renew it himself, the claimant answered that the Congolese authorities already had his information from his previous passport, which they copied into his new one. The claimant added that there was no security background check when they issued him the new passport.

[36]     Given the circumstances that led the claimant to flee his country, the tribunal confronted the claimant with section 3.5 of the National Documentation Package for the DRC which states that the government had refused to issue new passports to civil society activists and opposition members critical of the government.

[37]     When confronted with this information, which is drawn from credible sources, the claimant answered the people were bribed, and that they simply copied the information from his old passport to his new one.

[38]     The tribunal notes that the information contained in the NDP indicates that passport agents are easily influenced by bribes. On the other hand, the tribunal finds it unusual that an alleged prominent member of civil society, and a member of an opposition party that had the mandate to expand the party’s reach internationally, and that was allegedly jailed as a result of this political involvement would have been able to renew his passport. The tribunal does not impute a direct credibility finding from this incoherence, but it does raise some doubt as to whether the claimant returned to Kinshasa to obtain his passport, and whether he is, as alleged, sought after by the Congolese government.

[39]     Nevertheless, upon review of the other credibility issues outlined above, the tribunal concludes that the claimant did not establish, on a balance of probabilities, that he was a member of an opposition party, nor that he was arrested, detained, and mistreated because of this involvement.

Profile as civil society member and imputed sexual orientation

[40]     Although the tribunal does not believe that that claimant was mistreated in relation to his work as a political activist in the Democratic Republic of the Congo, his residual profile as an active civil society member was analyzed to ascertain the prospective risk for him if he were to return to his home country.

[41]     Despite the credibility issues outlined above, the tribunal does believe that the claimant was indeed an active member of Congolese civil society, work that he continued in South Africa and in Canada. Because of this profile, especially his work related to LGBT issues, the tribunal believes that the claimant would face a serious possibility of persecution if he were to return to the DRC.

[42]     The tribunal noted that the claimant was interviewed in the media about this work on this subject, and that these articles appear extensively online8. Consequently, the tribunal believes that the claimant has demonstrated on a balance of probabilities that he was, and continues to be extensively involved in advocating for LGBT rights.

[43]     The tribunal is aware of the documentary evidence contained in the National Documentation Package for the DRC. It states that although homosexuality itself is not a crime, the state does use accusations of “indecency” to criminalize homosexual acts9. Furthermore, the NDP states sexual minorities face “societal discrimination and abuse”, affecting their chances of having a normal education and employment. The NDP also states that “sexual minorities are viewed poorly and mistreated by the government”, and victims of harassment from authorities.

[44]     Considering the visible and extensive advocacy work done by the claimant in this domain, the tribunal believes that he may be perceived as a member of the LGBT community. Consequently, the tribunal believes that the imputed sexual orientation of the claimant as a member of the LGBT community would create for him a serious possibility of persecution if he were to return to his country.

State Protection

[45]     The tribunal believes that there is clear and convincing documentary evidence establishing that sexual minorities are harassed and mistreated in the DRC by state authorities10. Therefore, the tribunal does not believe that the Congolese state could offer adequate protection to the claimant if he were to return to his home country.

Internal Flight Alternative

[46]     Given the pervasiveness of the harsh societal attitudes that considers homosexuality a “taboo” in the DRC, and that it is generally not accepted in the country, the tribunal does not believe that there is a viable internal flight alternative for the claimant in his country. The tribunal also notes the extensive documentary evidence about the claimant’s advocacy work in this domain available online and that is available by a simple search of the claimant’s name. Consequently, the tribunal believes that there exist a serious possibility of persecution for the claimant throughout his home country.

[XXX]

[47]     The tribunal examined the claim for the claimant’s son, [XXX], who is a citizen of South Africa. For the following reasons, the tribunal does not believe that the claimant established that his son would face a serious possibility of persecution, or, by balance of probabilities, a risk under section 97(1) of the IRPA if he were to return to his home country.

[48]     At the hearing, the claimant testified that he fears for his son, since he has always been under his care, and that he fears that he could also be a target in South Africa. He also states that there may be psychological issues of being separated by his father.

[49]     The tribunal considered these allegations, but does not believe that the claimant has demonstrated any prospective risk for his son upon a return to South Africa. Indeed, the tribunal believes that the claimant’s attack was targeted toward him in response of his advocacy work. There is no indication that these attackers were interested in also targeting his family members.

[50]     Furthermore, [XXX] mother still lives in South Africa, with his half-sister. There is no indication that either of these individuals have been targeted.

[51]     For these reasons, the tribunal believes that the claimant has not established that there exist a serious possibility of persecution, or, by balance of probabilities, a risk under section 97(1) of the IRPA if he were to return to his home country.

CONCLUSION

[52]     The tribunal concludes that there is a serious possibility of persecution for Mr. [XXX] based on his imputed sexual orientation and activism. His claim is accepted.

[53]     Having considered all the evidence, the tribunal finds that Mr. [XXX] has not met his burden of establishing a serious possibility of persecution on a Convention ground, or that it is more likely than not that he would be personally subjected to a danger of torture or face a risk to his life or a risk of cruel and unusual treatment or punishment, were he to return to his country. As a result, he is neither a “Convention refugee”, nor a “person in need of protection”. Therefore, the tribunal rejects his claim.

(signed)           Jason Benovoy

April 24, 2019

1 Document 2 – Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada.
2 Document 3 – NDP for South Africa, Section 2.13
3 Document 3 – NDP for South Africa, Section 2.1
4 Document 3 – NDP for South Africa, Section 6.1
5 Document 2 – Supra note 1, IMM 5669 form, Question 9.
6 Document 1 – Basis of Claim form, Question 5
7 Document 2 – Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada.
8 Document 4 – Exhibit C-2
9 National Documentation Package, Congo, Democratic Republic of the, 31 July 2018, Tab 6.1: Response to Information Request, Immigration and Refugee Board of Canada, 22 April 2014, COD104815.FE.
10 National Documentation Package, Congo, Democratic Republic of the, 31 July 2018, Tab 2.1

Categories
All Countries Nigeria

2019 RLLR 16

Citation: 2019 RLLR 16
Tribunal: Refugee Protection Division
Date of Decision: May 13, 2019
Panel: Harvey Savage
Counsel for the claimant(s): Kingsley I Jesuorobo
Country: Nigeria
RPD Number: TB8-17781
ATIP Number: A-2020-01124
ATIP Pages: 000119-000122


REASONS FOR DECISION

INTRODUCTION

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

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

ALLEGATIONS

[3]       You allege the following: You have identified as a gay person in Nigeria since an early age. Your first relationship was with [XXX] when you were 24. It lasted more than one year and ended after you were attacked on [XXX], 2017, by local vigilantes or local police who were tipped off by your stepdad. You ended that relationship because you wished to spare [XXX] from exposure due to his relationship with you. You then had a subsequent relationship with [XXX] which ended when you left for Canada on a student visa. Just before leaving you experienced other attacks. You made a claim for protection at the airport.

DETERMINATION

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

ANALYSIS

Identity

[5]       I find that your identity as a national of Nigeria is established by the documents provided, your passport with student visa.

Nexus

[6]       I find that you have established a nexus to section 96 by reason of your sexual orientation as a gay man in Nigeria.

Credibility

[7]       Based on the documents in the file and your testimony, I have noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above. You provided a medical report and corroborating letters. After reviewing the documents and the testimony, I have no reasons to doubt their authenticity.

Objective basis of future risk

[8]       Based on the credibility of your allegations, and the documentary evidence set out below, I find that you have established a future risk that you will be subjected to the following harm. The claimant faces a risk of further exposure in Nigeria and possibility of vigilante attacks and arrests because homosexuality is criminalized.

[9]       The fact that you face this risk is corroborated by the following documents: National Documentation Package (NDP) for Nigeria – April 30, 2019, items 1.3, 2.1, 6.1, 6.2 and 6.4.

Nature of the harm

[10]     This harm clearly amounts to persecution.

State protection

[11]     I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances. You were attacked by local police.

Internal flight alternative

[12]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Nigeria. As homosexuality is criminalized in Nigeria, there is no viable internal flight alternative.

CONCLUSION

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

(signed)           Harvey Savage

May 13, 2019

Categories
All Countries Pakistan

2019 RLLR 10

Citation: 2019 RLLR 10
Tribunal: Refugee Protection Division
Date of Decision: April 10, 2019
Panel: K. Genjaga
Counsel for the claimant(s): John Savaglio
Country: Pakistan
RPD Number: TB7-09089
Associated RPD Numbers: TB7-09090
ATIP Number: A-2020-01124
ATIP Pages: 000075-000088


REASONS FOR DECISION

[1]       This is the decision in the claims of [XXX] (the principal claimant) and [XXX] who claim to be citizens of Pakistan and are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       In deciding these claims, the panel considered the principal claimant and claimant’s testimonies, documentary evidence, and counsel’s oral submissions at the hearing. In addition, the panel considered the Chairperson’s Guidelines number 9 on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression2.

ALLEGATIONS

[3]       The principal claimant alleges in his Basis of Claim Form (BOC)3, BOC amendment4 and in testimony that he fears the Pakistan authorities, religious extremists and society in general if he were returned to Pakistan today. The principal claimant fears being arrested, tortured and even killed due to his sexual orientation of being a homosexual. The claimant relies on the BOC and BOC amendment of the principal claimant and fears she will be harmed for her role in assisting the principal claimant to escape Pakistan. While the details of the claim are in the BOC and BOC amendment, the following is a brief summary of the principal claimant’s allegations.

[4]       The principal claimant alleges he was born and raised in [XXX]. The claimant alleges that he grew up with three sisters and knew he was a homosexual from an early age.

[5]       The principal claimant alleges he fell in love with his childhood friend, [XXX]. The principal claimant alleges that he started a relationship with [XXX] when they were 16 years old.

[6]       When the principal claimant was in grade 12, he alleges that his parents found out about him secretly going to a hotel with [XXX] and confronted the principal claimant.

[7]       On [XXX], 2016, [XXX] father suspected that [XXX] and the principal claimant were involved in same sex activities and beat them both after he found them in his house in a locked room for over an hour. The claimant alleges that [XXX] father threatened to hand him over to the police if he did not stop his activities with [XXX] and phoned the principal claimant’s father to advise him of the suspected homosexual activities.

[8]       The next day, the principal claimant alleges his father warned him of the severe consequences he would face by the religious extremists if he did not abandon his homosexual activities. The principal claimant alleges his father cursed and beat him up after the principal claimant admitted his homosexual orientation. The principal claimant alleges that the claimant cursed him and said it was better if she had another daughter than him.

[9]       After some time, the principal claimant alleges he resumed his relationship with [XXX] and started to meet him in different guestrooms in [XXX]. The principal claimant alleges his father asked the local Sunni Masjid, [XXX] to try to convince him to change his sexual orientation.

[10]     On [XXX], 2016, the principal claimant alleges he and [XXX] were in a [XXX] guestroom in [XXX], when four bearded men entered with a key. The principal claimant alleges that these men started to punch and kick him and [XXX]. The principal claimant alleges he and XXXX were then handed over to the police and taken to the police station.

[11]     The principal claimant alleges that he and [XXX] were verbally abused, humiliated and physically assaulted by the police during their detention. The principal claimant alleges that the police called the principal claimant’s father who came down to the police station and bribed the Station House Officer to release the principal claimant. The police warned the principal claimant’s father that his son should not be seen in the area otherwise he may face serious harm in the future.

[12]     The principal claimant alleges that word spread through the neighbourhood quickly about his arrest and sexual orientation. The principal claimant alleges that his father was called to appear before a council of elders the next day to address the matter. The principal claimant alleges he went into hiding in [XXX] at his father’s friend’s house.

[13]     On [XXX], 2016, the principal claimant alleges that that the council of elders decided that he and [XXX] should be punished with death for their homosexual activities and to preserve the dignity of their Islamic faith. The principal claimant alleges that Sunni radical extremists were also in the council and who vowed to carry out the punishment.

[14]     The principal claimant alleges that at the insistence of the claimant, the principal claimant’s father contacted an agent to assist getting the principal claimant and the claimant out of the country for safety. The principal claimant alleges that the claimant had to accompany him because he was still a minor.

[15]     On [XXX], 2016, the principal claimant and the claimant came to Canada. In May of 2017, the principal claimant and the claimant made claims for refugee protection.

DETERMINATION

[16]     This is a split decision. The panel finds that the principal claimant is a Convention refugee based on the grounds of membership in a particular social group that being a homosexual. The panel finds that the claimant is not a Convention Refugee and not a person in need of protection. The panel’s reasons are as follows.

ANALYSIS

[17]     The determinative issues in this claim are identity, credibility, well-foundedness of the claim and internal flight alternative.

Identity

[18]     On a balance of probabilities, the panel accepts the claimants are citizens of Pakistan based on their testimony and copies of their Pakistani passports.5

Credibility

[19]     Credibility is an issue to be considered in all claims before the Immigration and Refugee Board (IRB). In order to determine whether the claim is well-founded, the panel must find, on a balance of probabilities, that the evidence is credible and trustworthy. A claimant’s testimony is presumed to be true unless there are valid reasons to doubt its truthfulness.6

The principal claimant’s claim

[20]     The panel found the principal claimant to be a credible witness on his sexual orientation and incidents that have happened to him in Pakistan. The principal claimant testified in a straightforward and clear manner. The principal claimant was able to provide details of events in his life in Pakistan and in Canada. His testimony was consistent with the BOC, Port of Entry documents and documentary evidence provided in support of his claim. There were no inconsistencies between the principal claimant’s testimony and the other material before the panel. The principal claimant did not embellish or exaggerate his claim. As a result, the panel believes the principal claimant’s story as it pertains to him.

[21]     In addition, the principal claimant has provided personal documentary evidence7 including certificate of domicile, driving license, national identity card, educational documents, educational documents of [XXX], family registration documents, certificate for the children below 18 years of age, affidavits in support from family and friends, photographs, 519 letters and donation receipts. As a result, the panel believes his story in support of his claim.

[22]     There is considerable objective documentary evidence8 put forward by the Board and counsel that highlights the problems that claimants who are homosexual may face in returning to Pakistan today.

[23]     In the United States. Department of State. Pakistan. Country Reports on Human Rights Practices for 20189 states,

Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity

Consensual same-sex sexual conduct is a criminal offense. The penalty for same-sex relations is a fine, two years’ to life imprisonment, or both. Lesbian, gay, bisexual, male transgender, and intersex persons rarely revealed their sexual orientation or gender identity. There were communities of openly transgender women, but they were marginalized and were frequently the targets of violence and harassment.

Violence and discrimination continued against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons. The crimes often go unreported, and the police generally take little action when they do receive reports. Outreach by NGOs in KP, however, improved interactions between police and the transgender community there.

According to a wide range of LGBT NGOs and activists, society generally shunned transgender women, eunuchs, and intersex persons, collectively referred to as “hijras”–a word some transgender individuals view as pejorative, preferring the term “khawaja sira”-

-who often lived together in slum communities and survived by begging and dancing at carnivals and weddings. Some also were prostitutes. Local authorities often denied transgender individuals their share of inherited property, and admission to schools and hospitals. Landlords frequently refused to rent or sell property to transgender persons. On May 9, Parliament passed the landmark Transgender Persons (Protection of Rights) Act, 2018, which addresses many of these problems. The law accords the right of transgender individuals to be recognized according to their “self-perceived gender identity,” guarantees basic rights, and prohibits harassment of transgender persons, and outlaws discrimination against them in employment, housing, education, healthcare, and other services.

A 2012 Supreme Court ruling allows transgender individuals to obtain national identification cards listing a “third gender.” Because national ID cards also serve as voter registration, the ruling enabled transgender individuals to participate in elections, both as candidates and voters. The Election Commission of Pakistan and the National Database and Registration Authority, with support from international donors, conducted an identification card and voter registration drive prior to the July general elections. Thirteen transgender candidates ran in the elections, although none were elected. Election observers and the transgender community reported incidents of harassment of transgender voters on election day, and the Sindh Home Department reportedly confiscated the Election Commission of Pakistan accreditation cards of 25 transgender observers citing security concerns. A Free and Fair Election Network report, which included observations of 125 transgender election observers, noted that in Islamabad, Lahore, and Karachi law enforcement officials were largely helpful and gave preferential treatment to transgender voters. In Peshawar and Quetta, by contrast, transgender voters faced harassment (emphasis is mine).

[24]     Under Sharia Law, homosexuals may face the death penalty in Pakistan for their activities.10 While homosexual activities are still considered to be a crime, some documentary evidence indicates the government rarely prosecutes individuals while other documentation indicates that there has been documented arrests of homosexuals in Pakistan for the past three years.11

[25]     The documentary evidence12 indicates that sexual minorities are not socially accepted with the major part of society denying their existence and there is little public acceptance of the notion that someone can love a person of the same sex. The documentary evidence13 indicates that individuals who are of non-heterosexual orientation are reluctant to reveal their sexual orientation or gender identity because then life becomes miserable as he or she can become the victim of teasing, bashing, beatings, threats and even being killed. The documentary evidence14 indicates that lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) persons are victimized by the state, by society, by religious extremist groups and even by their own families.

[26]     The documentary evidence15 indicates that sexual minorities may face a risk of discrimination, violence, social boycott and degradation in social class and rank. The documentary evidence indicates there is widespread and systemic state and societal discrimination against LGBTQI individuals in Pakistan including harassment and violence. The documentary evidence indicates Pakistan is homophobic society that has anti-homosexual statutes and that it suffers from serious levels of ongoing anti-homosexual violence. The documentary evidence also indicates that the Pakistani authorities do not provide adequate state protection to the LBGTQI persons suffering serious human rights abuses and are often one of the agents of persecution as they tend to share and support the homophobia found in Pakistani society as a whole.16

[27]     Therefore, the panel finds on a balance of probabilities that the principal claimant has come to the attention of the Pakistan authorities and local Sunni extremists and local religious clerics as being homosexual. Therefore, the panel finds on a balance of probabilities that there is more than a mere possibility that the principal claimant would face persecution if he returns to Pakistan today.

[28]     The panel finds that the principal claimant has rebutted the presumption of state protection because the state is one of the agents of persecution in this case and it would be unreasonable to expect him to seek state protection in this case.

[29]     The panel also finds that there is no Internal Flight Alternative for the principal claimant because the situation would be the same wherever he lives in Pakistan.

The claimant’s claim

[30]     The panel did not find the claimant’s testimony credible as it relates to events in Pakistan and the well-foundedness of her claim. The panel find’s that the claimant on a balance of probabilities will not face harm or persecution upon return to Pakistan. The panel noted that the objective documentary evidence17 does not support that the family members will face harm or persecution if their family member is homosexual. It states that gay activists who openly campaign for gay rights are likely to be at real risk in Pakistan from non-state actors. The claimant in this case is not a gay rights activist but a concerned mother and parent who assisted her son in coming to Canada for his safety.

[31]     The panel finds the claimant was evasive and did not want to answer the panel’s questions. The panel found the claimant very emotional throughout her testimony and kept on crying. The panel found that the claimant often did not listen to the questions being asked and was often rambling in her answers and in hysteria that she could not leave her son and go back to Pakistan which she repeated often. The panel does not find the claimant credible in the following areas;

Omission in the BOC narrative that the claimant and her husband were visited by Sunni radical extremists, mulvis or religious clerics and were abused and beaten in Pakistan

[32]     The claimant testified that while her son was in hiding in [XXX] that Sunni radical extremists, mulvis or religious clerics visited her home in Lahore and questioned her and her husband about the location of the principal claimant. The claimant testified that they were abused and beaten by these individuals in Pakistan. The panel asked the claimant how many times these people came. The claimant testified that they came many times to her home. The panel asked the claimant again to specify how many times these people came to her house in the four month period that the principal claimant was in hiding in Gujranwala. The claimant kept repeating they came too many times and they came several times.

[33]     The panel asked the claimant why the visits to the house and subsequent abuse and beatings were not mentioned in the BOC narrative. The claimant testified that the lawyer’s assistant said that there was no need to give more details of her problems in Pakistan. The panel asked the claimant if she told her lawyer about the visits, abuse and beatings by the Sunni radical extremists, mulvis, religious clerics or goons. The claimant testified that she did not. The panel asked why she did not tell the lawyer about these incidents she testified that she is uneducated and that she did not know that she had to tell him.

[34]     The panel does not find that the claimant has provided a reasonable explanation for the omission in the BOC narrative. It would be reasonable to expect that a claimant would state all incidences of harm or threats in the BOC narrative that she has experienced pertaining to her son’s activities. The claimant in this case did not file her own separate BOC narrative but instead relied on the BOC narrative of the principal claimant. The panel also noted that the claimant and her husband did not move or go into hiding after the arrest of the principal claimant or after the council of elders meeting. Instead they remained in their home for four months. The panel also noted that the council of elders did not issue punishments to the principal claimant’s mother or father for their son’s homosexual activities. Also, the panel noted that the recent affidavit18 of the claimant’s husband does not outline that he or his wife were abused or beaten by the extremists, religious clerics or the goons. The panel put this matter to the claimant and asked for an explanation. The claimant testified that her husband wrote about the principal claimant’s problems and did not write about the visits and beatings because he is also uneducated.

[35]     The panel finds that if the claimant truly feared for her life it would be reasonable to expect her to move or go into hiding as her son did after the principal claimant’s arrest and release from the police station. The panel noted that the claimant’s husband has submitted two affidavits19 outlining their family’s problems in Pakistan. It would also be reasonable to expect the claimant’s husband to put in the affidavits that he and his wife were abused and beaten by the religious extremists as a result of their son’s homosexual activities. The claimant’s husband did not do so. In contrast, the claimant’s husband indicated that the reason his wife came to Canada was to assist her son in travelling and reaching Canada safely because he was a minor at the time he left Pakistan. The panel noted that the claimant in her testimony also repeatedly stated that she came here to take care of her son and save his life. The panel noted that the principal claimant at the time he applied for Canadian visas was a minor and when he arrived in Canada in [XXX] of 2016 he was 18 years old.

[36]     The panel does not find the claimant credible in this area of her testimony. The panel finds on a balance of probabilities that the visits, abuse and beatings by the Sunni radical extremists, mulvis, religious clerics and goons did not happen as alleged and that the claimant is embellishing her claim so that she can stay here in Canada with her son.

Claimant’s family problems back in Pakistan since she has been in Canada

[37]     The claimant testified that since she has been in Canada, the local Sunni extremists and local religious clerics have approached her husband as recently as last week and asked him where the principal claimant is. The claimant alleges that her husband did not tell her that he was beaten and that she found out later from him and from her daughters. The panel asked the claimant when this occurred and when she found out about this matter. The claimant testified that her husband told her a week ago and that it happened about three to four months ago. The panel asked what her husband told her. The claimant testified that he said don’t come back here and that he has received life threats against the principal claimant and that is very good there in Canada. The claimant also testified that her daughters do not go outside anymore or to school because they get teased and harassed by local boys because their brother is homosexual.

[38]     The claimant also testified that when she and the principal claimant came to Canada her remaining family consisting of her husband and daughters moved to another location in [XXX]. The claimant testified that the Sunni radical extremists and the local religious clerics were able to locate her husband in the new location and again inquired about the location of the claimant and the principal claimant. The claimant testified that her husband was beaten again and that he had to move to a relative’s house. The panel asked the claimant when this happened. The claimant testified that this happened a week ago. The panel asked the claimant if she told the principal claimant about this. The claimant did not tell her son because he is a child and she did not want him to worry about this.

[39]     The panel does not find the claimant to be credible in this area of her testimony. The claimant provided conflicting testimony as to when her husband was beaten. The claimant first testified that he was abused earlier when the religious extremists would hold him by the neck with their hands to get him tell them where the principal claimant was. Later on her testimony she testified that he was beaten three to four months ago and most recently a week ago.

[40]     The panel noted that the most recent affidavit of her husband dated 2019/03/04 does not indicate that he was beaten by religious extremists. However, the panel noted the affidavit of the claimant’s husband contradicts the claimant’s testimony regarding actions taken against him by the religious extremists and also that the religious extremists have threatened to kill the principal claimant only and not the claimant. The panel put the matter to the claimant and the claimant testified that that her husband was uneducated and only put down the problems that the principal claimant experienced.

[41]     The panel noted that the claimant repeatedly testified that the principal claimant is her only son and she cannot be apart from him. The claimant testified that she came to Canada to safe her son’s life and assist him here in Canada.

[42]     The panel finds on a balance of probabilities that the claimant’s version of what has been happening to her husband in Pakistan since she has been in Canada is not credible. The panel finds that the claimant’s husband has not been beaten by the religious extremists as the claimant has alleged. Therefore, the panel finds on a balance of probabilities that the local Sunni extremists and local religious clerics are searching only for the principal claimant and not the claimant.

[43]     After reviewing the evidence in its totality, the panel finds that the claimant is not a credible or trustworthy witness with respect to the central allegations of her case that she is being pursued in Pakistan because her son is homosexual. In addition, the panel finds there is insufficient credible and trustworthy evidence before the panel upon which to reach a positive determination under s.96 ors. 97(1) of IRPA. Therefore, the panel finds that the claimant’s account of problems she faced in Pakistan lacks credibility. As a result, the panel does not believe her story in support of her claim.

Internal Flight Alternative (IFA)

[44]     In the alternative, even if the panel finds the claimant to be credible, which it does not, the panel also finds that there is a viable IFA for the claimant in Pakistan. The panel proposed at the beginning of the hearing Islamabad, Multan and Karachi as possible and viable IFAs for the claimant in Pakistan. During the course of the hearing and after hearing testimony from the claimant, the panel changed the proposed and viable IFAs to Faisalabad, Sialkot and Multan.

[45]     The panel asked the claimant if she could live in the IFAs proposed in other parts of Pakistan like Faisalabad, Sialkot or Multan and be safe. The claimant testified that she cannot because they will chase her and her husband to find out where her son is living. The panel asked the claimant what her husband tells these people when they approach him. The claimant testified that her husband has told them various lies like he does not where were they are and sometimes he tells them they have gone to Islamabad or Karachi. The claimant also testified that if her family goes somewhere else to live and her son goes out it, can be more serious. The claimant also testified that if she returns to Pakistan they will kill her because she escaped with him to Canada. The claimant testified that she has only one son and she can’t live without her son.

[46]     The panel finds that the claimant is similarly situated to other members of her family like the claimant’s husband and other family members who may have been harassed to disclose the location of the principal claimant. The panel noted that the claimant’s family has only moved to another location in Lahore when they were allegedly found. The panel finds that the claimant may be able to move to the potential internal flight alternatives of Faisalabad, Sialkot and Multan and be safe if her son remains in Canada. The panel noted that the claimant was a homemaker supported by her husband. The claimant testified that her husband worked from home as he was a tailor and the daughters helped him because he suffered from diabetes, high cholesterol and heart issues for which he was taking medications.

[47]     The panel does not see any reason why the claimant cannot return to Pakistan and live with her family without her son in the cities discussed as potential internal flight alternatives outlined above and be safe. The claimant testified that she cannot and the religious extremists and clerics and goons will locate them there. The panel asked why they could not go to the police and get help if they are harmed or threatened. The claimant testified that the police sides with them.

[48]     The panel finds on a balance of probabilities that the local religious clerics and local Sunni extremists would not pursue the claimant as they are interested in the principal claimant only and would not have an interest to seek the claimant even if she moves to any of the proposed internal flight alternatives. In addition, the panel finds that the claimant has not rebutted the presumption of state protection in this case as the family has not approached the police for protection in the various places they have lived in Lahore since the claimant has been in Canada when they allegedly encountered problems in Pakistan from the local religious clerics and local Sunni extremists.

[49]     The panel notes that the motivation to find the claimant, if any exists, would be to simply obtain information about her son’s location. The panel does not find on a balance of probabilities that the local Sunni extremists and local religious clerics would be interested to seriously harm the claimant as they have not done serious harm to the existing family that are still in Pakistan. In addition, the panel finds on a balance of probabilities that the claimant’s problems are localized to local Sunni extremists and local religious clerics in Lahore.

[50]     Therefore, the panel finds that the claimant has not established, on a balance of probabilities, that these individuals who she alleges are pursuing her would have the ability to locate her in any of the proposed IFAs which are outside the Lahore area. Moreover, the claimant has not established, on a balance of probabilities, that the assailants would have been motivated to seek her out elsewhere in Pakistan.

[51]     The panel further finds, based on the claimant’s testimony, that the claimant is a homemaker who relies on support from her husband who works from home as a tailor. The panel finds no reason why her husband could not find employment in any of the proposed IFAs. The panel noted that the claimant’s family moved to various places in Lahore only and finds that they should be able to relocate to another part of Pakistan without any difficulties.

[52]     Accordingly, the panel finds that Faisalabad, Sialkot and Multan meet the test of being viable IFAs for the claimant and her family as there would not be, on a balance of probabilities, any serious possibility of persecution or risk to life or risk of cruel and unusual treatment or punishment or danger of torture in the IFAs.

CONCLUSION

[53]     Based on the foregoing analysis, the panel concludes that the principal claimant is a Convention refugee under section 96 of the Immigration and Refugee Protection Act. The panel accepts his claim. The panel concludes that the claimant is not a Convention refugee nor a person in need of protection and rejects her claim.

(signed)           K. Genjaga

July 19, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c.27 as amended.
2 Chairperson’s Guideline 9 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017.
3 Exhibit 2.
4 Exhibit 10.
5 Exhibit 1.
6 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.), 31 N.R. 34 (F.C.A.)
7 Exhibits 7, 8 and 9.
8 Exhibits 4 and 6.
9 Exhibit 4, item 2.1.
10 Exhibit 4, item 6.1.
11 Exhibit 4, item 6.1.
12 Exhibit 4, items 2.1, 6.1, 6.2, 6.3, 6.4, 6.5 and Exhibit 6.
13 Ibid.
14 Ibid.
15 Ibid.
16 Ibid.
17 Exhibits 4 and 6.
18 Exhibit 8.
19 Exhibits 7 and 8.