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.