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2019 RLLR 21

Citation: 2019 RLLR 21
Tribunal: Refugee Protection Division
Date of Decision: November 26, 2019
Panel: Dorothy E. Fox
Counsel for the Claimant(s): Aleksandr Radin
Country: Turkey
RPD Number: TB8-23829
ATIP Number: A-2021-01124
ATIP Pages: 000141-000144


DECISION

[1]       MEMBER: This is the decision in the claim for refugee protection made by [XXX] herein after the claimant, pursuant to Section 97 and 97-, 96, sorry, and 97(1) of the Immigration and Refugee Protection Act.

[2]       She alleges she cannot return to Turkey, her country of citizenship where she’ll be persecuted because of her sexual orientation. The Panel has considered your testimony and other evidence in the case and is ready to render its decision orally.

[3]       The Panel finds the claimant to be a Convention refugee as she has established a well-founded fear of persecution in Turkey based on the Convention ground. Having membership in a particular social group, namely a lesbian. Panel considered Chairperson’s Guideline 9 in relation to proceedings before the Immigration and Refugee Board of Canada involving sexual orientation and gender identity and expression. In rendering its decision, the Panel has concern for the particular challenges that the LBGT individuals from Turkey may face in presenting their case. Since this case involves allegations of gender related violence, the Panel considers Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender Related Persecution. These Chairperson’s Guidelines assist in assessing the key evidentiary elements in determining to what extent women making a gender related claim of fear of persecution may successfully rely on any convention ground and under what circumstances gender violence constitutes persecution.

[4]       The claimant’s allegation are set in her Basis of Claim Form, marked as Exhibit 2 on the consolidated list of documents in this matter. The claimant’s fears being seriously harmed and or o-,ostracized by her family members and fears being seriously harmed or killed by members of the Turkish community or her father on account of her sexual orientation. The claimant has-, was raised in a conservative and religious-, conservatively religious Turkish family. In high school she realized that she was attracted to girls, however, she was never able to talk about it with students or her parents or express any feelings about this with her brother as well. In her first year of university, the claimant met and became friends with [XXX], this relationship developed into a sexually intimate relationship while they were rooming together. Although they were partners for over seven years, the claimant had to hide their relationship from her family and society because of Turkey’s conservative culture.

[5]       In [XXX] of 2-, 2018, the claimant traveled to Canada to study. Two weeks after arrival in Canada, she met and became sexually intimate with a-, a lady named [XXX]. On [XXX] the claimant disclosed this to [XXX], that she had this relationship with [XXX], however, [XXX] did not take this news very well and threatened revenge. The next day, the claimant received a phone call from her father during which he threatened her life for dishonouring and shaming the fa-, family after [XXX] had reaz-, revealed families, sorry, a photo to her family with respect to intimate pictures. The claimant then decided to claim refugee status in August of 2018.

[6]       The Panel is satisfied with the claimant’s personal identity and status as a citizen of Turkey on a balance of probabilities based on a certified copy of her passport included in the documents marked as Exhibit 1 on the consolidated list of documents in this matter. The determinative issue in this claim is credibility. I find the claim to-, to be a credible witness on a balance of probabilities. She testified in a very straight forward, very candid manner and credible manner without embellishment. Her oral testimony was consistent with her Basis of Claim and tes-, and the documentary evidence in support of her allegations. Most notably, a letter from her brother Segan, e-mails with respect to her father listing her as a missing person, photographs of the claimant playing basketball and other sports, photographs of the claimant’s mother in traditional headdress, photographs, a plethora of photographs of her former girlfriend [XXX], 519 documents in-, indicating that she has attended the community centre and on 519 Church Street, a letter from her present girlfriend, [XXX], [XXX], who was unable attend today because of an accident she had the day before and the-, there was a document indicating that she had received medication which we didn’t enter into as an Exhibit but I will make note of that, that I had seen the prescription for pain killers, also a bachelors degree from university and photographs of the claimant attending pride festivities, a call history with her father which-, with translation, various other childhood pictures and photographs with [XXX] as well and additional photographs confirming sexual orientation and her activities in the LGBT community, messages from dating apps and-, and a letter from her friend [XXX], I guess, I pronounced that again, get worse the second time, okay.

[7]       While the Panel finds that this plethora of documentation and documentary evidence is not demonstrative of sexual orientation on its own, it does corroborate the claimant’s alleged sexual orientation. Moreover, given that there were no major credibility issues, the Panel finds that these documents are relevant to corroborative ev-, evidence. The Panel ful- is, the Panel is mindful that the standard of proof as to the claimant’s sexual orientation is a balance of probabilities. On the bases of the claimant’s consistent testimony regarding her same sex partners and events that led to her claiming in Canada, the photos of her same sex partners and supporting letters from her friend and brother, the Panel finds that based on factors unique to this claimant’s case that she has established on a balance of probabilities that she is a lesbian. The Panel finds there is clear and convincing evidence on the record to rebut the presumption of state protection. This information is contained in documents in the current National Documentation Package for Turkey compiled by the Board’s research directorate and marked as Exhibit 3 on the consolidated list of documents in this matter.

[8]       In recent years, there has been an increase in aggressive behaviour and threats to the LGBT community by non-state actors including family, but especially from conservative religious groups. Documentary evidence reported in the country reports on human rights practices for 2018 from the United States Department of State and the bureau of democracy of Human Rights and Labour reports the following. While the law does not explicitly criminalize LGBT status or conduct, provisions of the law concerning offences against public morality, protection of the family and unnatural sexual behaviour sometimes served as a basis for abuse by police and discrimination by employers. Numerous LGBT organizations reported a heightened sense of vulnerability under the state of emergency as well as growing restrictions on their freedom of speech, assembly and association. During the year, the Ankara’s Governor’s office continued its indef-, indefinite ban in 2017 on all public GB-, LGBT events in the province assigning public safety concerns.

[9]       The criminal code does not include specific protections based on sexual orientation or gender identity. The laws allow for up to three years in prison for hate speech or injurious acts related to language, for race, nationality, colour, gender, disability, political opinion, philosophical beliefs, religion or sectarian differences but human rights groups criticize the law’s failure to include protections based on gender identity. As noted, it was sometimes used to restrict freedom of speech rather than to protect my-, minorities. Judges routinely apply the law to reduce the sentences of persons who killed LGBT individuals. Courts of Appeal upheld these verdicts based in part on the immoral nature of the victim. The report also indicates that the LGBT persons could not get a-, access to healthcare. The UK Home Report in item 1.14 and Section 224 also states that, while there’s some protection in the law and avenues of rej-, redress and practice operationally, these resources are not effective.

[10]     Section 244 states in particular that government does not effectively protect vulnerable LGBT persons from social abuse, discrimination or incidents of violence. Impunity for crimes against LGBT individuals continues to be reported as a problem and in practice, law enforcement officials and judiciary have taken a lenient attitude towards crimes committed against the LGBT persons. According to paragraphs 2,5,4 of this report, internal relocation will not be an option if it depends on the persons concealing their sexual orientation and or gender identity, in the proposed new location for fear of persecution. When taking all this evidence together the Panel finds, on a balance of probabilities, that the claimant would face a serious possibility of persecution if she was return to Turkey for her membership in a particular social group as a lesbian.

[11]     With respect to internal flight alternative, while states are presumed to be capable of protecting nationals, it is open for the claimant to rebut the presumption of protection with clear and convincing evidence that adequate protection would not reasonably be forthcoming. In this claim, the state is an agent of persecution and the objective evidence establishes that Turkey does not have effective mechanisms to protect citizens who are abused by police or security forces. In fact, on the contrary, the evidence indicates that police sometimes operate with impunity in Turkey.

[12]     The previous cited DOS report, items-, at item 2.1 states that in its executive summary, that Turkey suffers from official impunity and a weak administration of justice. Later in the same report it cites some instances of the disproportionate use of force by police against the LGBT community and police intimidation and harassment of the community. Having considered the claimant’s testimony and the documentary evidence about the role and conduct of the police in Turkey, the Panel finds that the claimant has rebutted the presumption of adequate state protection as the state is the agent of persecution and still remains in control of its territory. The Panel further finds there is no reasonable internal flight alternative within Turkey for the claimant in her circumstances. The claimant testified that she should not live-, that she could not live openly as a lesbian woman alone in any place in Turkey without experiencing a fear of harm at the hands of either her family and also persuasive, in that she would also face societal discrimination.

[13]     In this case the Panel agrees, the situation of homophobia and insufficient state protection exists across the country, accordingly the Panel also finds, on a balance of probabilities, that there is no safe or reasonable internal flight alternative for the claimant in Turkey. The Panel finds that there is a serious possibility that the claimant would be persecuted upon her return to Turkey, based on her sexual orientation. Hence, her claim is accepted. [XXX] is recognized as a Convention Refugee pursuant to Section 96 of the Immigration and Refugee Protection Act.

———- REASONS CONCLUDED ———-