Citation: 2019 RLLR 72
Tribunal: Refugee Protection Division
Date of Decision: November 25, 2019
Panel: M. Robinson
Counsel for the claimant(s): Pablo Andres Irribarra Valdes
Country: Jamaica
RPD Number: TB8-30002
ATIP Number: A-2020-01274
ATIP Pages: 000210-000213
DECISION
[1] MEMBER: so I’m going to start that again. The panel has considered your testimony and all the other evidence in this case and the panel is now ready to render our decision orally. You [XXX] claim that you are a citizen of Jamaica and are making the claim for refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[2] In assessing this claim the panel considered the chair person’s Guideline 9 proceedings before the IRB involving sexual orientation, gender identity and expression. You will receive an unedited transcript of this oral decision in the mail in approximately three weeks. Your counsel will also receive a copy and can answer any related questions you may have at that time.
[3] Your claim is accepted. We find that you are a Convention refugee as you have established a well founded fear of persecution in Jamaica based on a convention ground and that is having membership in a particular social group namely as a gay male.
[4] The details of your allegations were documented in your basis of claim form as well as your oral testimony.
[5] In summary you fear persecution in Jamaica because of your sexual orientation as a gay man. You allege that while growing up you have been the subject of negative treatment and verbal abuse due to your perceived sexuality and famine behaviours.
[6] During your employment with the [XXX] and as a [XXX] you were called homophobic slurs and faced hostility and ridicule for your perceived sexual orientation.
[7] You allege that you were in a same sex relationship in Jamaica from approximately 2014 to 2017 as well as casual encounters after that relationship ended.
[8] On one occasion visiting your mother two men yelled homophobic slurs at you for your red coloured extensions and they threatened your life after you evaded the situation. On another occasion in [XXX] 2018 you were threatened from a man in a car and a group of men on the street. You allege that there is no state protection for you or an internal flight alternative.
[9] Your personal identity as a national of Jamaica is established based on your testimony and documents namely the certified true copy of your passport in Exhibit 1.
[10] The panel therefore finds on a balance of probabilities that your identity and country of reference have been established.
[11] The panel finds that there is a link between what you fear and one of the five convention grounds, specifically your membership in a particular social group that of a homosexual man.
[12] In terms of your general credibility, overall the panel found you to be a credible witness and the panel therefore accepts what you have alleged in your oral testimony and in your basis of claim.
[13] You have testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before us that were not satisfactorily explained.
[14] The panel also notes that the allegations that you write in your basis of claim narrative and which you have testified about are supported by documentary evidence that you have provided.
[15] The panel notes that this case is very well documented by corroborated personal documents to establish your sexual orientation as well as some of the other allegations in your claim specifically you submitted numerous letters of support from your current partner, ex partners, friends as well as social media and text correspondence between you and your close friends and partners.
[16] You have provided copies of photographs including photographs of your employment and relationships. You have brought with you today Mr [XXX](ph) your current partner in Canada. He was a credible witness and testified with consistency in relation to your testimony to the genuineness of your relationship.
[17] You have also brought your brother [XXX](ph) with you as a witness, although he was not required by the panel to testify.
[18] The panel therefore finds on a balance of probabilities that you are a homosexual male. The panel believes that you have been in relationships with men in Jamaica and Canada. The panel believes that you have been subject to threats and abuse as a result of your sexual orientation. The panel believes that should you return to Jamaica you will be targeted and persecuted by the homophobic community due to your sexual orientation. The panel therefore finds that your subjective fear has been established.
[19] The panel finds based on a review of the national documentation package that what you fear is objectively well founded. The documents show that homosexual acts between males are criminalized in Jamaica while the laws are not enforced negative attitudes and a climate of homophobia persist and is promoted through some types of Jamaican music by churches and politicians who have made negative statements towards sexual minorities.
[20] The objective documentation supports your allegations that threats of violence and attacks against sexual minorities are frequent and widespread in Jamaica. This is also indicated in the articles provided by your counsel.
[21] Person’s in the LGBTQ community in Jamaica have been attacked and are the targets of mob violence. Therefore the panel finds that you have a well founded fear of persecution.
[22] The panel finds that adequate state protection would not be available to you were you to seek it in Jamaica.
[23] You have stated in your narrative and testimony that you did not seek protection because you believed the police to be against homosexuals and feared escalating the situation in your community should the police investigate the incidents where you felt threatened.
[24] The objective indicates, the objective evidence indicates that gay men are often reluctant to report incidents for fear of their well being and fear of extortion based on their sexual identity. Sources report that police often fail to take action regarding incidents of violence directed at sexual minorities even after being reported.
[25] The climate of hostility towards sexual minorities and documentations such that shows that Jamaica has failed to develop a legal system that is responsive to and inclusive of the rights of the LGBTQ community.
[26] The documentation reports that the state has failed in its obligation to take appropriate measures to prevent attacks and to vigorously investigate and prosecute attackers.
[27] In light of the objective country documentation the panel finds that you have rebutted the presumption of state protection and that adequate state protection would not be available to you in Jamaica.
[28] The panel has also considered whether a viable internal flight alternative exists for you. The country documentation indicates that the situation for individuals in circumstances such as yours is the same throughout the country. The climate of homophobia and violence exists throughout Jamaica. The panel therefore finds that there is no viable internal flight alternative available to you.
[29] Based on the totality of the evidence the panel finds that the claimant is a Convention refugee. Your claim is therefore accepted. This concludes the hearing today.
———- REASONS CONCLUDED ———-