Perceived lesbian from Jamaica granted protection

Sukhram Ramkissoon

By Sukhram Ramkissoon

Paula (not her real name) is a citizen of Jamaica and claimed protection in Canada, alleging that she fears gang members and the community in Jamaica, for being perceived as a lesbian. The Refugee Protection Division (RPD) denied her claim in December 2023, on the basis that she was not credible, nor does she have a forward-facing possibility of persecution in Jamaica. She was represented at the RPD by my daughter, Cindy Ramkissoon-Shears, who advised her to immediately appeal the decision to the Refugee Appeal Division (RAD); the record was filed at the end of January 2024.

In the RAD record, it was argued that the RPD erred in its credibility assessment and Paula requested for her appeal to be allowed by either (1) referring her matter back to the RPD for another hearing or (2) substituting a new decision. Some facts of this case:

Paula lived alone as a seamstress in Jamaica, as her daughter emigrated to Canada in the late 1990’s.  She separated from her former partner due to abuse and purchased a home in a community where her other relatives lived.  Because of her occupation, most of her clients were females who spent hours in her home, being fitted, sized, trying on their garments, etc.

In 2004, rumours began that she was a lesbian and as a result, she was attacked and harassed by members of a local criminal gang that resided in her community. The rumors subsided until 2010, when she became friends with four female clients who she later found out were lesbians. Because of her association with these women, the rumors and gossip about her sexual orientation were renewed, and the harassment, threats, and ridicule started again. She lost her clientele, was banned from local shops and services in her community, and the threats, physical assaults, and harassment from members and associated members of the criminal gang worsened. 

In 2014, she applied for a Canadian visitor visa, with the help of her daughter and came to Canada. She sought legal advice soon after arriving in Canada and was informed Jamaica is not a refugee country, however, if she remains for 5 years she can apply for permanent residence under Humanitarian and Compassionate (H&C) grounds.  Paula followed this advice.  She retained a lawyer in 2018, who submitted an H&C application in 2019.  Although Paula informed her lawyer of her experiences in Jamaica, these facts were not presented in her H&C application, but instead, it focussed on the best interests of her 3 grandchildren and her daughter who was also in an abusive relationship, resulting in her becoming a single mother. 

Paula’s H&C application was denied in 2021, however, she did not take any other actions due to the pandemic.  Her daughter is a PSW, working lengthy hours and staying in the basement of the home, to ensure the safety and health of the children and Paula.  In 2022, Paula received a letter to attend an interview with Canada Border Services Agency, and contacted my firm to discuss the same.  After telling her story, she agreed to claim protection in Canada, at which point her refugee process began.

All of these facts were presented by Paula at her hearing before the RPD, clearly and credibly citing each incident of harassment, assault and threats.  In 2020, Paula learned from her neighbour that her home was seized and occupied by the criminal gang.  Photographs and other evidence were provided to the RPD, supporting Paula’s allegations.

In the RAD matter, Cindy argued:

  • the RPD made errors in its analysis of Paula’s delay in claiming by presuming the Paula was more knowledgeable about the refugee process than those she sought legal counsel from
  • the RPD erred in law, in its assessment of what a reasonable explanation is considered for a delay in making a claim, and made a global assessment of credibility without a clear analysis of the persecution faced by Paula
  • the RPD erred by failing to conduct an individualized assessment of risk, compared to those facing a similar risk
  • regarding a forward-looking analysis, the RPD erred in its forward-looking findings, specifically that the gang’s seizure of Paula’s home is not probative of a threat to Paula.

The RAD stated that its role is to look at all the evidence and decide if the RPD made the correct decision. The RAD ruled that, other than the RPD finding Paula’s delay in claiming inconsistent with a subjective fear of persecution, and that there was an absence of a forward-facing possibility of persecution, which the RAD found to be incorrect, the RPD made no other adverse credibility findings.

After conducting an independent assessment of the record, including reviewing the hearing transcript, the RAD found that Paula had credibly established her allegations. Delay in claiming protection in Canada does not undermine Paula’s credibility as the RAD found that the explanation is both plausible and reasonable. While delay in claiming refugee protection may be a relevant factor in assessing subjective fear, it is not determinative of the claim.

The RAD also found that the RPD failed to consider that, the same gang who threatened and assaulted Paula for her perceived sexual orientation, was the same gang who seized and confiscated her home. Therefore, Paula faces a forward-facing possibility of persecution as a perceived lesbian, as this gang would be aware of her residence and her past, since they have attacked, threatened, harassed, and discriminated against her on multiple occasions.  The presumption of state protection in Jamaica is also rebutted and although the objective country documentary evidence reflects some efforts by the government and police to improve the situation for sexual minorities, it shows that acts of violence against sexual minorities remain a major concern in the country and are frequently ignored by the police.

The RAD granted Paula’s appeal and substituted the RPD’s decision, finding Paula is a Convention Refugee and Protected Person in Canada. Congratulations Paula!

SUKHRAM RAMKISSOON is a member of CICC specialising in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756