By Sukhram Ramkissoon
Last month, a 35-year-old citizen of the Bahamas appeared before the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) in Toronto through a video conference, testifying that he fears harm at the hands of the homophobic Bahamians including his cousin due to his sexual orientation as a gay man. He gave permission to write this story using another name i.e., Kendall.
He claimed that he lived a closeted life as a gay man in the Bahamas, where he was not free to openly express his sexual orientation. He alleged that he was sexually abused at a young age by relatives. Despite living a secret life, without disclosing his sexual orientation, he faced discrimination from his family members and young peers at school. Members of his church and strangers alike called him derogatory names and received threats from one of his relatives, because, as he described “were due to” his “feminine characteristics.”
Kendall arrived in Canada in 2016 and he feared returning to his country and remained without status. When he arrived, he was informed that his mother’s refugee claim was denied so he opted to submit a humanitarian and compassionate application as his mother was successful in hers. Kendall’s application was denied, and he submitted a second humanitarian application. In both applications, he outlined his fear for his life due to his sexual orientation as a hardship, based on his lived experiences. After his second refusal, which he received in 2022, he received counseling and filed a claim for refugee protection.
The Minister intervened in Kendall’s claim for protection citing credibility concerns for his delay in making a refugee claim. The member stated that the delay “is not a decisive factor in itself but is a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claim.” The member stated that Kendall had ample opportunity to make a claim specifically in 2019 when he received a threat from his relatives from the Bahamas and found the delay significant.
The member considered the IRB Chairman’s Guidelines in Gender-based persecution which is known as SOGIESC (Sexual Orientation, Gender Identity and Expression and Sex Characteristics) which states that an individual may reasonably delay in making a refugee claim based on SOGIESC out of fear of reprisal for themselves or family members. A reasonable delay may also arise out of individual reluctance to reveal SOGIESC to a spouse or other family member, or in their realizing or accepting their SOGIESC.
My daughter Cindy Ramkissoon-Shears represented Kendall and the member stated that she agreed with Cindy’s submissions that the consideration for an H&C application – hardship – is different from that of a refugee claim. The member ruled that Kendall’s delay in claiming though significant, has been reasonably explained by him and it does not raise significant concerns with respect to his subjective fear or credibility of his core allegations in the case, his sexual orientation as a gay man.
The member also ruled that Kendall testified in a straightforward manner, and there were no relevant inconsistencies in his testimony or contradictions between his testimony and the other evidence before her. She found him to be a credible witness and therefore accepted what Kendall alleged in support of his claim.
In terms of his sexual orientation, Kendall testified that he identifies himself as a “gay” or “homosexual” and described himself as gay in his life and identity. Kendall testified about his life and history in the Bahamas which felt natural, just as it would be in the same way he would have been attracted to girls. It was difficult growing up with his identity and not being able to completely express himself. He did not inform his mother and sister about his sexual orientation until long after he came to Canada, and when he did, they did not accept it.
Kendall joined a popular support group in 2021 with like-minded people and began to understand who he is and began to feel comfortable and free. He also described his participation in LGBTQ events in Canada and provided support letters and pictures that corroborate his testimony and interest in men.
Kendall also provided support letters from his partner in Canada as well as pictures they have taken together as a couple, which attest to his ongoing same-sex relationship in Canada. As part of Kendall’s documentary evidence, he provided support letters from his H&C application, one of which was from his former boyfriend, wherein they were in a relationship for 3 years. The Minister did not include this document in their intervention. His photographs also included his participation and enjoyment in Pride events for the past several years.
The member ruled that Kendall has established his profile as a gay man, his experiences of being targeted in the Bahamas are credible on a balance of probabilities and his subjective fear has been established. There are no serious credibility issues with respect to Kendall’s allegations coupled with the documentary evidence, and he has established an objectively well-founded fear of persecution in the Bahamas. The member stated that it would be objectively unreasonable for him to seek protection from the state given the law does not provide protection for members of the LGBTQ and the attitude of the police and judiciary have been unsympathetic. The presumption of adequate state protection has been rebutted.
The member concluded that Kendall was a Convention refugee and accepted his claim. He is now eligible to apply for permanent residence as a Protected Person.
Good luck and congratulations to Kendall.
SUKHRAM RAMKISSOON is a member of CICC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A. Toronto, Ontario Phone 416 789 5756.