Citation: 2019 RLLR 135
Tribunal: Refugee Protection Division
Date of Decision: October 28, 2019
Panel: Diane Hitayezu-Fall
Counsel for the Claimant(s): Ameena Sultan
Country: Algeria
RPD Number: TB8-21381
ATIP Number: A-2021-00256
ATIP Pages: 0000102-000105
[1] MEMBER: This is the decision for [XXX] and the file number is TB8-21381.
[2] I have considered and applied the Chairperson’s Guideline 9 with respect to Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.
[3] I have considered your testimony and the other evidence I have in front of me and I have reached a decision. I find that you are a Convention refugee.
[4] You are claiming to be a citizen of Algeria and you are claiming refugee protection under s. 96 and s. 97 of the Immigration and Refugee Protection Act.
[5] You allege that you are a citizen of Algeria. You allege a fear of persecution in Algeria based on your sexual orientation. You identify as bisexual. In your words, you say that you identify as a man who has sex with men. You also alleged a fear of persecution because you do not believe in anything. You do not believe in Islam. And this puts you at risk in Algeria. You allege that if you return, the State or the police will not protect you because you are not a believer in Islam and you will not be protected because of your sexual orientation. You fear the police and the members of the public in general.
[6] In terms of identity, I find your personal identity as a citizen of Algeria has been established by your testimony and your Algerian passport. I have a certified copy in Exhibit 1. So, I considered those, the documents, the passport and your testimony, and I find, on a balance of probabilities, that your personal identity and your national identity have been established and the country of reference has also been established as being Algeria.
[7] I assessed your – the credibility also and I find that your testimony was straightforward and it was in keeping with the information in your basis of claim and there were no significant inconsistencies or omissions that went to the core of your claim. In general, I have found you to be a credible witness. So, therefore I accept what you have alleged in your oral testimony and in your Basis of Claim. The Basis of Claim is in Exhibit 2.
[8] In support of your claim, you provided documentary evidence, confirming that some of your family members are aware of your sexual orientation and that you have discussed your sexual orientation with your doctor in Canada, that you have been attending [XXX]. And that’s who you identify as, a bisexual man or a man who likes to have sex with men.
[9] These documents have been entered as exhibits in Exhibits 6 and 7. I note your brother [XXX] (ph.) wrote a letter saying that he knows about your sexual orientation, and [XXX] (ph.) from [XXX] wrote a letter confirming that you have been attending programmes at [XXX], an LGBTQ organisation in Toronto. And Julia tell us in her letter that you have shared your experiences as a bisexual man in Algeria with her and you have shared your experiences with the group at [XXX].
[10] You have provided photograph of your current boyfriend in Canada and you have provided proof that you are active on dating sites. You showed me your profile on Bazoo, and I was able to verify, to confirm, your relationship with the person you showed me on pictures.
[11] I note that I was concerned by the fact that you did not bring your boyfriend as a witness or I have not received any support letter from him. You explained that your relationship, although it is a romantic relationship, it’s still new and you were shy to ask.
[12] So, after listening to your testimony, I find that your testimony and the documentary evidence establish, on a balance of probabilities, that you are a man who have [sic] sex with other men. So, I accept what you have alleged in your Basis of Claim.
[13] I note that your claim was based on religious beliefs and sexual orientation. I assessed the aspect of sexual orientation; and as it disposes of your claim, I will not address the religious aspect in my decision.
[14] So, I find that there is a link between what you fear and one of the five Convention grounds, specifically membership in a particular social group, gay men in Algeria.
[15] I verified the objective evidence to see if your subjective fear was founded and I noted that the objective documentation supports your allegations, that individuals in your circumstances face persecution and discrimination in Algeria and they are subjected to violence, are shamed, and they risk to be arrested and sent to prison.
[16] In the National Documentation Package in Exhibit 3, the National Package for Algeria, Document 6.1, it says that homosexual activities are criminalised. It says that Algeria has been rejecting recommendation to eliminate discrimination against LGBTQ community. And the same document and Document 2.1, the DoS Report for 2017-2018, this reports (inaudible) that people continue to be arrested for engaging in same-sex sexual activities. LGBTQ people suffer abuses from the police and they are discriminated against in health and employment. And Document 6.2, Response to Information Request, contains similar information, same information as in Documents 6.1 and 2.1 that same-sex activities are criminalised.
[17] I note that your counsel has provided some evidence in Exhibit 5 and some articles were published in 2019 and they talk about LGBTQ people who were killed in Algeria.
[18] So, I considered this objective evidence in conjunction with your allegations that I find to be credible and I find that the fear you expressed has an objective basis.
[19] Therefore, I find that you have a well-founded fear of persecution.
[20] I looked at State protection and I find that State protection would not be available to you, were you to seek it Algeria.
[21] I refer to the objective documentary evidence, Document 6.2, the Response to Information Request. It contains information that victims, homosexual victims never report homophobic violence, as they are afraid of Algerian authorities. That was said by somebody who said “never.” But it says that acts of violence are not reported due to fear of the laws. And the same Response to Information Request contains information of incidents where people were caught and charged and were sentenced, were sentenced to spend time in jail and were fined. For instance, one was required to pay 20,000 dinars. And the same Response of Information [sic], talks about two young men, homosexual, who posted their relationship on Facebook and they were arrested and were sent to pre-trial detention.
[22] So, and I find that as the State, the Government of Algeria and the police (inaudible) as homosexual sexual activities are criminalised in Algeria, it would not be reasonable for you to seek protection from the police or from any other authority.
[23] So, in light of the objective country documentary [sic], I find that you have rebutted the presumption of State protection. And based on your personal circumstances as well as the objective documentation, I find that adequate State protection will not be available to you in Algeria.
[24] I have also considered whether a viable internal flight alternative exists for you in Algeria. note that the country documentation indicates that the situation for individuals in your circumstances is the same throughout the country. The country documentation indicates that the attitude towards LGBTQ in Algeria is the same throughout Algeria; and SOGIT, the Guideline 9, paragraph 8.7.1 states that it is established in law that an internal flight alternative is not viable if an individual with a diverse sexual orientation or gender identity must hide their sexual orientation in order to live in that location.
[25] So, I therefore find that you face serious possibility of persecution throughout Algeria based on your sexual orientation; and, as such, I find there is no viable internal flight alternative for you in Algeria.
[26] So, having considered the totality of the evidence before me, I find you to be a Convention refugee. You have established that there is a serious possibility of persecution, based on your sexual orientation, if you were to return to Algeria.
[27] I accept your claim.
DECISION CONCLUDED