2023 RLLR 196

2023 RLLR 196 Citation: 2023 RLLR 196 Tribunal: Refugee Protection Division Date of Decision: December 19, 2023 Panel: K. Beresford Counsel for the Claimant(s): Omolola Fasina Country: Rwanda RPD Number: TC3-12874 Associated RPD Number(s): N/A ATIP Number: A-2024-01010 ATIP Pages: N/A DECISION [1] These are the reasons for the decision in the claim of XXXX XXXX (the claimant), who claims to be a citizen of Rwanda and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.[1] [2] In rendering my reasons, I have considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC).[2] ALLEGATIONS [3] The claimant’s allegations are fully set out in her Basis of Claim (BOC) form and narrative[3] and addendum. In summary, the claimant fears returning to Rwanda due to her sexual orientation. The claimant fears that she will be imprisoned or detained by police on return to Rwanda, and also fears discrimination rising to the level of persecution in Rwanda at the hands of the Rwandan society in general. DETERMINATION [4] I find that the claimant is a Convention refugee pursuant to section 96 of IRPA as she has established, with credible and trustworthy evidence, that she faces a well-founded fear of persecution in Rwanda. ANALYSIS Identity [5] The claimant’s personal and national identity as a citizen of Rwanda is established by her testimony and a copy of her Rwandan passport in evidence.[4] [6] I noted at the hearing that one of the passports provided by the claimant, which was issued in XXXX 2015, gives a different date of birth: XXXX XXXX, 1990 rather than XXXX XXXX, 1990. When asked, the claimant testified that XXXX XXXX is her real date of birth, but that in Rwanda they typically issue a passport with a date of birth that matches the one on the applicant’s national ID, and that her national ID contains the date of birth XXXX XXXX, 1990. The claimant testified that both passports that were issued in Rwanda therefore have that date of birth, and it is the one she generally provides. However, the claimant testified that she applied for her 2015 passport in India, where she was studying, and gave them her real date of birth at that time, and that’s why her date of birth is different on that document. [7] I noted that the place of issue on the 2015 document says Kigali, and the claimant testified that she had applied for it at an embassy in India, it was processed in Kigali, and then mailed to the embassy in India where she collected it. The claimant testified that she was not sure why her real date of birth is different on her national identity card, as she was young when it was issued. [8] I accept this explanation, as the claimant’s biographic information in her documents would be based on information provided by her parents when she was very young. I also accept that the procedures for processing documents may be different in embassies compared to in Rwanda. Ultimately, I find that the claimant has declared a date of birth that is not the actual date on which she was born, but rather the date that was given by her parents as her date of birth when they applied for her documents, and which has appeared in most of her documents ever since. I find that this discrepancy is insufficient to suggest that the claimant has another identity, and note that the claimant made no effort to hide this discrepancy from the board, having provided both documents. I therefore find that the claimant’s identity is established, on a balance of probabilities. Nexus [9] I find that the claimant has established a nexus to the convention, as she fears persecution due to her sexual orientation. I have therefore assessed this claim under section 96 of the IRPA. Credibility [10] There is a presumption that sworn testimony is true unless there is sufficient reason to doubt its truthfulness.[5] In this case, I found the claimant to be a credible witness. The claimant testified in a detailed manner; her testimony was straightforward, spontaneous, and consistent with the BOC narrative and addendum. The claimant candidly answered all of my questions, and elaborated on different aspects of her claim, such as her relationship with her partner, her relationship her family before and after her sexuality became known to them, and her experiences since entering into a same-sex relationship. The claimant also provided several pieces of evidence to support her claim, discussed below. Relationship with H [11] The claimant testified clearly and spontaneously about meeting her same-sex partner, H, in XXXX XXXX. She spoke about how their relationship evolved into a romantic one, and how they were caught sharing a bed in a dormitory by one of the other students. She also testified about their families finding out about her sexual orientation after they were both suspended because of their relationship, and the reactions of her family members and community. [12] The claimant also testified about H’s interests, how they used to spend their time, and H’s education and work. In addition, she spoke of the bullying they experienced in XXXX XXXX by other students after their relationship was discovered. [13] In support of this testimony, the claimant provided a letter of support from H, as well as one from her mother, both of which confirm the relationship.[6] I have no reason to doubt the authenticity of these documents, and note that both are signed and accompanied by a copy of the photo ID of the author. I therefore accept, on a balance of probabilities, that the claimant has been in a same-sex relationship with H, who continues to live in Rwanda, since they were in XXXX XXXX XXXX XXXX Arrest and detention in Rwanda [14] The claimant also testified about moving in with H after she finished her XXXX XXXX, and the precautions they took in order to conceal the nature of their relationship from community members and neighbours. The claimant testified that one night they were seen kissing through their window by their neighbours, despite believing that they were safe because it was dark. The claimant testified that her neighbours reported her and H to the police and that they police went to their home that night to arrest them. [15] The claimant testified about the fear she felt while at the police station, when she was kept in a separate cell from H. She testified about the police coming regularly to question her about their relationship, and feeling threatened when they made derogatory comments. [16] The claimant provided documentary evidence of her arrest and later release. I note that the claimant originally provided translations that say that she was arrested for “supporting, influencing, advising, or miss leading [sic] someone into selling them into going abroad,”[7] then later provided new translations which indicated that she was suspected of “supporting, influencing and misleading someone into prostitution (LGBTQ).”[8] [17] When asked, the claimant explained that lesbians are often referred to as prostitutes in Rwanda, and that there is a fear in society that they will influence others, and this is why she was accused of influencing someone into prostitution. Counsel also provided copies of all of the legislative references made in the police documents, but all were procedural and none referred to any criminal laws referencing prostitution or human trafficking. I accept that the first quote, which could be interpreted as a more serious accusation, was an error in translation, and that the second is in line with NDP evidence, outlined below[9], on the treatment of people of diverse SOGIESC in Rwanda. I therefore accept that the claimant and her partner were targeted by police for being in a same-sex relationship, after being reported by a neighbor. The claimant also provided police documents corroborating her testimony that they were both released after two weeks in detention, and required to report to the police station regularly. Discrimination at work [18] The claimant also testified about working for XXXX XXXX XXXX as an XXXX XXXX. She declared that this was a close office where people got along and spent time together socially, and spoke in particular about being invited to weddings. The claimant testified that at those events, people would always talk about who was going to get married next, and that people would ask her pointed questions. She therefore felt that she had to be honest about her relationship, but that after this she no longer received invitations to some of the weddings, and was unable to secure any promotions or raises. [19] I find that this is in line with the discrimination outlined in the NDP, discussed below. International travel prior to arrival in Canada [20] The claimant testified that she has travelled to several places prior to her arrival in Canada. Of particular interest were her trips to India, and Dubai, where she spent several years, as well as a short trip to Nigeria. Given that the claimant returned to Rwanda after her trips to India and Nigeria, I questioned the claimant on her decision to travel to these countries and then return to Rwanda, where she has declared that she has a subjective fear. [21] The claimant declared that she resided in India from XXXX 2010 until XXXX 2015, where she got a XXXX XXXX XXXX – an integrated course which included XXXX years of XXXX XXXX followed by XXXX XXXX XXXX XXXX XXXX XXXX XXXX. When asked, the claimant testified that she did not chose to go to India, but rather her father decided to send her there as he believed that the education would be good. The claimant testified that she also believed that her father wanted to send her out of Rwanda in order to give her time to think, in the hopes that she would end her relationship with H during that time, although he did not say this to the claimant. [22] When asked, the claimant explained that she found life difficult in India, as the culture there is very different. She testified that she found herself interacting mainly with other students from Africa as their culture fit better, but that when those students saw her go without a boyfriend for an extended period they began to ask intrusive questions about her sexual orientation. The claimant testified that the discrimination started again, with other students asking how she could be in a relationship with a woman and wondering whether she was sick. [23] The claimant provided her school transcripts in evidence,[10] which I find support her testimony that she was a student in India. I accept that the claimant had a difficult time in India, and that she did not have permanent status in that country. The claimant therefore returned to Rwanda following her XXXX XXXX, after which she moved in with H. I note that this predates the claimant’s arrest in Rwanda, and therefore accept that she was not actively seeking to leave Rwanda permanently at that time. I therefore make no negative credibility inference with regards to the claimant’s decision to return to Rwanda after studying in India [24] The claimant testified that, following her arrest in Rwanda, she no longer felt safe and wanted to find a place to live where she and H could be free to be open about their relationship. She therefore went to Dubai for work. [25] I questioned the claimant about her decision to go to Dubai for work, given that it does not have a reputation for being supportive of the LGBTQI community, and in fact would likely be less safe than Rwanda. The claimant confirmed that she did not find safety in Dubai, but explained that at that time, she felt that she needed to leave Rwanda as soon as possible because she was in immediate danger from the police. She therefore went to Dubai where she thought she could find work, but realised that she would not be able to live openly with H there. The claimant also testified that Dubai is a large city and a hub for many businesses, and she therefore hoped that she might meet people there who could advise her of a safe place for her and H to live. She testified that this did not occur, as most of the people she met were customers who were older men, so she could not get real information from them. I accept this explanation, and draw no negative credibility inference from the claimant’s decision to escape persecution in Rwanda by going to Dubai, where she would not be more able to live openly with H. [26] The claimant spent almost three years in Dubai, from XXXX 2020 until XXXX 2022, before flying to Canada. As evidence of this, she provided her residence permit and proof of employment in Dubai. I accept, on a balance of probabilities, that the claimant did not have a permanent status in Dubai, and that she decided to leave because she could not live there safely with H. [27] The claimant testified that she also went to Nigeria while she was searching for a safe place to live. She declared that she was living in Dubai at the time, and that she decided to go to Nigeria on her way to Rwanda, where she was going to apply to come to Canada. The claimant testified that she had found conflicting information online, and therefore decided to go to Nigeria to see if it was a place where she and H could live safely. [28] When asked, the claimant testified that she stayed in XXXX, but quickly decided that it would not be a safe place to live. The claimant explained that, aside from her sexual orientation, she found that people were always busy so she was unable to meet anyone during her time there, and that she rarely left the hotel as she did not feel comfortable. The claimant also explained that when she tried to exchange her money she feared that she was being scammed, but that she did not know what to do. [29] I find it strange that the claimant would identify Nigeria as a possible safe refuge for her and her same-sex partner, but I accept that social media does contain false or misleading information. I therefore draw no negative credibility inference from the claimant’s decision to take this trip. I also accept, on a balance of probabilities, that the claimant would find XXXX, which is attached to Lagos, to be a large and busy city which would be hard to settle into. [30] I find that the claimant’s previous travel have little bearing on the case at hand, and make no negative credibility inference from the claimant’s previous travels and decisions to return to Rwanda, given the above explanations. Conclusions on Credibility [31] I find, on a balance of probabilities, that the claimant has been in a same-sex relationship with H since XXXX XXXX, which has led to bullying, discrimination at work, and an arbitrary arrest and two-week detention by the police. I find that she has established her profile as a lesbian woman from Rwanda. Based on the foregoing, I accept that she has a subjective fear of the police and society in Rwanda which is forward facing. Well-Founded Fear of Persecution: Objective Basis [32] I find that the claimant’s subjective fears are objectively well-founded,[11] as the National Documentation Package for Rwanda provides an objective basis for the claimant’s fear of persecution as a lesbian. [33] The NDP indicates that while same-sex sexual activity is not illegal in Rwanda, cultural attitudes have led to a lack of education on the subject. It was reported that the government generally does not acknowledge the existence of the LGBTQI+ population, and that religious groups have stirred up homophobia in the country.[12] This evidence supports the claimant’s explanation about how her family, school, and work reacted when her sexual orientation was revealed. [34] There are also reports in the NDP of a strong social stigma facing the LGBTQI+ community in Rwanda, and discrimination against LGBTIQ2+ persons in housing, employment, and access to government services such as health care.[13] There were several reports of evictions, job loss, and discrimination in hiring for LGBTIQ2+ persons.[14] There were a few places in Kigali where they could receive health care without stigma, but none were known to exist outside Kigali.[15] I find that this is in line with the claimant’s testimony that she was suspended from school as a result of her sexual orientation, and also lost professional opportunities after coming out to colleagues. [35] The NDP also describes the treatment of LGBTQIA + individuals by authorities, and notes that while people cannot be charged for any crimes based on their sexual orientation or gender identity, other charges can be used to detain people of diverse SOGIESC.[16] Specifically, sources report arrests of LGBTQI+ individuals using public morality laws. I find that this is directly relevant to the claimant’s allegations, as she has declared that she was detained for two weeks by the Rwandan authorities and accused of prostitution and influencing children to become prostitutes. [36] It was also reported that lawyers in Rwanda have demonstrated homophobia in refusing to take on cases so that LGBTQI+ persons would not have access to representation in the justice system.[17] [37] I find that this is in line with the claimant’s testimony, and evidence provided, that she and H were arrested when their neighbor reported them after he saw them kissing through the window. [38] There is some evidence in the NDP that LGBTQI+ rights may be expanding in Rwanda. Specifically, the NDP reports that LGBTQI+ groups conducted public activities in Kigali during the year, including Pride festivities and a fashion show, indicating increasing tolerance and acceptance of LGBTQI+ persons in some parts of society.[18] There were no reports of involuntary or coercive medical or psychological practices specifically targeting LBGTQI+ persons, but there was social pressure on individuals to conform to traditional gender norms or face ostracism from their families and societal groups. [39] I find that this also supports the claimants testimony about her family’s reaction when they found out about her sexual orientation, with some being slightly more accepting. However, I do not find that this contradicts the claimant’s testimony, given the other evidence in the NDP discussed above. [40] The most recent Human Rights Watch report states that while “Rwanda is one of a few countries in East Africa that does not criminalize consensual same-sex relations”, in practice, lesbian, gay, bisexual, and transgender (LGBT) people have reported facing stigma.[19] [41] In summary, the claimant has established that she is a lesbian woman, and the objective evidence – along with the claimant’s own experiences of discrimination, violence and arbitrary arrest and detention – indicates that the treatment of lesbians in Rwanda rises to the level of persecution. I find that the risks of societal ostracism, difficulty in securing stable employment, homelessness, and/or other related harms such as arbitrary arrest, amount to persecution. Moreover, Guideline 9 notes that SOGIESC individuals cannot be compelled to conceal their sexual orientation to avoid persecution. I also find that the claimant’s previous detention for prostitution will, on a balance of probabilities, make her more vulnerable to persecution in the future, regardless of where in Rwanda she is. Based on the totality of this evidence, I find that the claimant has a well-founded, forward-facing risk of persecution in Rwanda. State Protection and Internal Flight Alternative [42] States are presumed capable of protecting their nationals, and the onus is on the claimant to rebut the presumption of state protection with clear and convincing evidence. In this case, I find that it would not be reasonable for the claimant to seek protection from the Rwandan authorities because the state itself is the agent of persecution. Based on the totality of the evidence, I find that state protection would not be reasonably forthcoming for the claimant, and that the presumption of state protection has been rebutted, on a balance of probabilities. [43] While there are no laws that criminalize sexual orientation or consensual same-sex sexual conduct between adults in Rwanda, there are multiple reports that indicate that LGBTIQ2+ people in Rwanda face discrimination, inequality and social stigma. Anti-discrimination laws do not expressly prohibit discrimination against sexual minorities.[20] [44] The government does not adequately respond to reports of abuses and violence against LGBTIQ2+ persons. NGOs reported many LGBTIQ2+ individuals were afraid to report abuses to authorities, either believing authorities would not take action or were complicit in the abuses. Some reported being accused of “deviant behaviours” such as drug abuse or prostitution, as was the case for the claimant and H. The government did not report investigating cases of abuse of LGBTIQ2+ persons at transit centres.[21] The claimant herself suffered arbitrary arrest and detention at the hands of state authorities. [45] I find that it would be objectively unreasonable for the claimant to seek the protection of the state in light of her particular circumstances. There is no legal protection against discrimination for lesbian women in Rwanda. Given that the police have been reported as an agent of persecution and there is reportedly limited access to justice for lesbian women in Rwanda, I find that there is no state protection relevant to the claimant’s particular circumstances. [46] In addition, given that the state is one of the agents of persecution and has control over the entire territory of Rwanda, I find that the claimant would face a serious possibility of persecution throughout Rwanda, on a balance of probabilities, and therefore that there is no viable internal flight alternative available to her. [47] The country documentation referred to above indicates that the situation and circumstances for LGBTIQ2+ individuals, like the claimant, is the same throughout the country, albeit slightly better in Kigali, as the claimant herself declared. As indicated in the Chairperson’s Guideline 9, it is well established in law that an IFA is not viable if a SOGIESC individual must conceal their SOGIESC in order to live in that location, because it would be a denial of human rights.[22] I find that, on a balance of probabilities, there is a serious possibility of persecution throughout Rwanda and therefore, no internal flight alternative is available for the claimant. CONCLUSION [48] For these reasons, I find the claimant meets the definition of a Convention Refugee as per section 96 of the IRPA, and I accept this claim for protection. ——— REASONS CONCLUDED ——— [1] Immigration and Refugee Protection Act, S.C. 2001, c. 27. [2] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, and Sex Characteristics, May 2017, revised in December 2021. [3] Exhibit 2. [4] Exhibit 1. [5] Maldonado v Canada (Minister of Employment and Immigration), 1979 CanLII 4098 (FCA), [1980] 2 FC 302 (CA). [6] Exhibit 5.2 [7] Exhibit 5.1 [8] Exhibit 5.2 [9] Exhibit 3, tab 6.2. [10] Exhibit 5 [11] Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), at 134. [12] Exhibit 3, tab 6.2. [13] Ibid [14] Ibid [15] Ibid [16] Ibid [17] Ibid [18] Exhibit 3, tab 2.1. [19] Exhibit 7, National Documentation Package, Rwanda, 31 October 2023, tab 2.4: Rwanda. World Report 2023: Events of 2022. Human Rights Watch. October 13, 2023. [20] Exhibit 3, tab 2.1. [21] Exhibit 3, tab 2.1 [22] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, and Sex Characteristics, section 8.7.1.