Citation: 2019 RLLR 128
Tribunal: Refugee Protection Division
Date of Decision: April 23, 2019
Panel: S. Charow
Counsel for the Claimant(s): El-Farouk Khaki
Country: Ghana
RPD Number: TB8-14776
ATIP Number: A-2021-00256
ATIP Pages: 000062-000066
DECISION
[1] MEMBER: This is the decision for [XXX] file TB8-14776.
[2] I’ve considered your testimony and the other evidence in this case and I’m ready to render my decision orally.
[3] In making this decision I’ve considered and applied the guidelines for sexual orientation.
[4] You’re claiming to be a citizen of Ghana and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[5] I find that you are a Convention refugee for the following reasons.
[6] The allegation of your claim can be found in your Basis of Claim Form at Exhibit 2. In short, you allege persecution as a member of a particular social group, namely that you are in danger of being harmed because of your identity as a gay man, as being gay is illegal in Ghana.
[7] You also allege that you cannot live freely as a gay man in Ghana and that your community may harm you because of your sexual orientation. You’ve alleged that your community has attempted to harm you after you were discovered with your same sex partner shortly before leaving Ghana.
[8] Your personal identity as a citizen of Ghana has been established by your Ghanaian passport at Exhibit 1. I find that, on a balance of probabilities, identity and country of reference have been established.
[9] In terms of your general credibility, I have found you to be a credible witness and I therefore accept what you’ve alleged in your oral testimony and in your Basis of Claim Form at Exhibit 1.
[10] You testified in a straightforward manner about your fears without any embellishment and there were no inconsistencies that went to the core of the claim that were not explained. Your testimony was spontaneous, including being able to provide details about your previous experience of harassment and violence after your sexual orientation was revealed to your community.
[11] You also provided credible testimony about the interactions that you had with your family after they learned about your sexual orientation. You also testified credibly about the fears that you have about the harm that may come to you should you return to Ghana.
[12] I noted that there was extensive and detailed testimony about your previous same sex partner in Ghana, including the how the relationship developed, what you liked about your partner, and you were able to give personal information about your partner that was consistent with the level of the relationship alleged.
[13] I also noted that in support of your claim you provided numerous credible documents, including an affidavit or … or a statutory declaration from your mother who was the person that you told in Ghana about your sexual orientation. You provided a statutory declaration from a family friend who was the person you hid with after you escaped from your community when they found out about your sexual orientation.
[14] I also noted extensive and multiple correspondence over the app gay Romeo. I noted that this correspondence was detailed, wasn’t just a hi how are you with a back and forth conversation between multiple people. I noted that this correspondence went further back than just in the timeframe immediately prior to your hearing. I noted that when we discussed gay Romeo you were able to describe how you chose your profile photos, how you choose who to correspondent with, and what you’re looking for from this application.
[15] In terms of the evidence, I note that it’s available at Exhibits 6 though 8.
[16] I did have some concerns about your failure to claim asylum in the United States. You had been three times after you first understood yourself to be gay. Twice for student work programs and then once after your sexual orientation had been revealed in Ghana.
[17] You explained that you did not claim on the first two occasions that you had been there because your life was not in danger at that time. You wanted to go back to Ghana and be with your family. I do find this explanation to be reasonable.
[18] However, you explained that on your third trip to the United States after your life was in danger in Ghana, you did not file a claim for asylum based on a discussion with someone you met in a hostile in New York. You said that talking with this person made you scared that you would have to return to Ghana because of the attitudes of the current administration, specifically the … the attitudes that they have towards immigrants and asylum seekers. However, when you told me about this conversation that you had you didn’t know the last name of the person you had talked with.
[19] You didn’t do any of your own research into the situation for immigrants or asylum seekers in the United States, and you didn’t meet with a lawyer in the United States to assess your options. You did have valid visitor status at that time and yet you still crossed irregularly into Canada.
[20] While I’m not commenting on what the actual attitudes towards immigrants or asylum seekers is in the United States, I don’t think that you specifically have provided a reasonable explanation for your failure to claim asylum in the United States, and this does negatively impact your credibility. However, this issue is not determinative in your case, and I make this finding based on the strength of your evidence, including your testimony and your supporting documents.
[21] Even with one noted omission and an inconsistency as per my earlier questioning in this hearing, I do find that the overall credibility of your testimony and your supporting documents outweighs my other concerns. I do find you to be credible.
[22] I’m therefore satisfied that you are a gay man, that the events have occurred as alleged in your testimony and in your Basis of Claim Form, and that there is a serious possibility that you would face persecution at the hands of either the Government of Ghana or your community should you return to Ghana.
[23] I find that you’ve established your subjective fear. I find that there is a link between what you fear and one of the five Convention grounds. Specifically, that as a gay man from Ghana you are a member of a particular social group because of your sexual orientation. Therefore, your claim has been assessed under Section 96 of the Immigration and Refugee Protection Act.
[24] I further find that you have an objective basis for your fear because of the documented country conditions for Ghana as per the evidence in the Exhibit 3, the National Documentation Package for Ghana.
[25] I note Sections 6.2, 6.3, and 2.1. I’ll summarize them. Under the Criminal Code same sex sexual conduct is a criminal offence. This … this law is used to threaten, arrest, and punish individuals for engaging in same sex sexual conduct.
[26] There is stigma, intimidation, and negative attitudes towards people in the LGBT community. Dozens of LGBT people have, on numerous occasions, been attacked by mobs or members of their own families or subject to assault, intimidation, or extortion.
[27] And I also note that there are homophobic statements in public support of the criminalization of same sex sexual conduct by public officials and religious leaders, which serve to perpetrate or perpetuate societal prejudices against gay and bisexual individuals and even encourage more hate speech, hate crimes, and discrimination by both State and non-State actors.
[28] In consideration of this I find that your subjective fear has an objective basis. I find that you have a well-founded fear of persecution due to your sexual orientation.
[29] Due to his evidence, I also find that there is clear and convincing evidence that State protection would not be reasonably forthcoming in your case, and it wouldn’t be reasonable to ask you to seek such protection as the State is a possible agent of persecution.
[30] As well, given these conditions and the circumstances you’ve described in your claim, I further find that there would be a serious possibility of persecution anywhere in Ghana, as same sex sexual activity is criminalized throughout the country.
[31] As the test for an internal flight alternative fails on the first prong, I find there is no viable internal flight alternative for you anywhere in Ghana.
[32] Based on the totality of the evidence I find the claimant to be a Convention refugee. Your claim is therefore accepted.
[33] So, this will conclude today’s hearing. I’d like to thank everyone for their participation. Thank you, counsel and thank you, sir.
———- REASONS CONCLUDED ———-