DW (Homosexual Men – Persecution – Sufficiency of Protection) Jamaica CG  UKAIT 00168
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 28 October 2005
Date Determination notified: 28 November 2005
Ms S E Singer
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
Men who are perceived to be homosexual and have for this reason suffered persecution in Jamaica are likely to be at risk of persecution on return. Men who are perceived to be homosexual and have not suffered past persecution may be at risk depending on their particular circumstances. The Secretary of State conceded that, as a general rule, the authorities do not provide homosexual men with a sufficiency of protection. There are likely to be difficulties in finding safety through internal relocation but in this respect no general guidance is given.
"8. The appellant claims that he fears persecution in Jamaica because of his sexual orientation; he claims to be homosexual. The appellant says that he was born and lived in Kingston, Jamaica, all his life until he departed for the United Kingdom. He never knew his father and lived with his mother, stepfather and siblings until his mother left Jamaica for the United Kingdom in February 1999. The appellant then remained in Jamaica with his stepfather. His stepfather had a violent manner, treated the appellant badly and threw him out of the family home.
9. The appellant says that he was continually taunted and accused of being gay in Jamaica. He says that two serious incidents were the cause of his departure from Jamaica. The first was in early 2000 when the appellant was leaving a gay club with a male friend in New Kingston. They were on foot when a car pulled up in front of them. A man got out of the car and shouted "batty man" and "gay" at the appellant and his friend. He punched and kicked the appellant and his friend; the friend ran away. The man then pulled out a gun and pointed it at the appellant before getting back into the car and driving away.
10. The appellant claims the second incident occurred in December 2000, at around 11.00 pm when he was waiting at the roadside for a friend he was going to a club with. The appellant claims a man came up behind him and held a knife to his throat. The appellant claims this man made him walk with him to an open place of land nearby where he forced the appellant to perform oral sex on him whilst he held the knife to his throat before releasing the appellant.
11. The appellant says he reported neither incident to the police because they would not provide protection and are known to be corrupt and homophobic. The appellant claims that homophobia is endemic in Jamaica; he says hostility towards gay men and lesbian woman is rife throughout the country and there is nowhere he could safely be returned to."
The Respondent's Reasons for Refusal
Representation before the Adjudicator
The Adjudicator's findings of credibility and fact
"25. In reaching a decision I have applied the burden and standard of proof previously set out in this determination.
26. The appellant gave oral evidence that his sexual orientation is homosexual and the respondent is wrong to reject the fact that he is gay. He described his own demeanour as feminine. The appellant said that it is obvious that he is gay, not straight, and said that he wears tight tops to show off his shape. The appellant says in his statement, dated 18 August 2004, that he has known since the age of 11 years that he is gay. The appellant says he always liked the company of girls and had more in common with them than boys; he enjoyed dancing, shopping and chatting.
27. The appellant said in oral evidence that his witness, Mr B, is a friend, but not a boyfriend, who has been known to him for 3 years. The appellant gave evidence of homosexual relationships he had formed in the past; he named a former boyfriend as C and a more recent one as H. Mr B confirmed his own personal knowledge of these relationships and said he had been introduced to both C and H by the appellant. Mr B said that it is within his own knowledge that the appellant is gay and described him as very effeminate; he said that both he and the appellant are very involved in the gay community in a city in the UK, where they live.
28. In relation to the issue of the appellant's sexuality I accept his evidence. I am satisfied that he is homosexual. I find his evidence about this to be consistent throughout his claim, credible and supported by a reliable witness and plausible detail. I accept the evidence given by Mr B.
29. I accept the evidence of the appellant that he had a difficult time in Jamaica; he was verbally abused because of his presumed sexual orientation. He describes being referred to as "batty boy", a well known slang term for homosexuals in Jamaica. I find the evidence given by the appellant in relation to the incident in early 2000, when a man alighted from a car, beat him and his friend and pointed a gun, to be credible. The appellant gives a consistent account of the incident. In the circumstances of the incident I am satisfied to a reasonable degree of likelihood that the appellant was attacked because of his homosexuality. It is reported to have happened in an area where male prostitution is practised.
30. Questioned about the incident in December 2000, the appellant said that he was not injured, just "boxed and stuff like that", meaning he had been slapped to the face. I accept that this incident happened but I am not satisfied that there is a sufficient amount of evidence to show that the attack was because of the appellant's perceived sexuality, although he says he could have been identified as gay because he was dressed to go out.
31. I am not satisfied that the two major incidents complained of by the appellant posed a serious threat to him. In respect of the two most serious incidents he describes the opportunity was there, but not taken up, to do him considerably greater harm. I am not satisfied that there was a serious intent on the part of his assailants to do him serious harm. I accordingly do not agree with the appellant's assessment of these two incidents as being occasions on which he "almost lost his life". Nor, as set out above, do I accept that the second incident is proved to be motivated by the appellant's sexual orientation. That is in no way to diminish the unpleasantness of the treatment received by the appellant or to condone such entirely unacceptable behaviour. The incidents, must, however, be assessed within the framework of asylum and human rights law and the general situation in Jamaica.
32. I am not satisfied that the appellant was genuinely in fear for his life when he left Jamaica or that he has a well-founded fear of persecution if returned to Jamaica. I consider there to be merit in the submission made on behalf of the respondent that the appellant's claim is undermined both by his delay in leaving Jamaica and his delay in applying for asylum after arriving in the United Kingdom. The delay in departing from Jamaica is not consistent with the appellant's claimed fear for his life. The appellant was cross examined about the 4 month delay in his leaving Jamaica; he said that he had been staying at a friend's house and was waiting for his mother to send him money.
33. I do not consider the explanation the appellant gives for the delay in applying for asylum to be adequate or credible. He applied at the end of the period when his visa expired, apparently because he had not been advised to apply for asylum. These are not, in my view, the actions of a person arriving in the United Kingdom in fear of his life, regardless of the advice he did or did not receive.
34. The appellant says, in effect, that he did not report the incident to the police in Jamaica because of their bad reputation and there would have been no point. It does not assist his claim, in spite of this explanation, to seek international protection before he looks for help in Jamaica. The appellant's unwillingness to report to the police is not stated to be because he fears attracting adverse attention to his situation; he says he is readily identifiable as gay.
35. In interview, apart from the two major incidents he describes as causing him to leave to Jamaica, the appellant says it was also because of the bad treatment he received from his stepfather and the friends he lived with after being thrown out by his stepfather. I accept the appellant's evidence in relation to these lesser events, but I am not satisfied that any of the treatment described amounts to evidence of persecution or ill-treatment to the necessary high threshold. Whilst the appellant has received unpleasant treatment at the hands of some individuals, I am not satisfied that he has established that he left Jamaica owing to either societal, police or the authorities' discrimination or persecution of him.
36. In the case of Dawkins  EWHC 375 (Admin) the Judge indicated that a citizen of Jamaica would not normally be at risk because of his homosexuality. The case of Dawkins establishes that an applicant must establish something more than the mere fact that he is homosexual; there must be evidence that he is going to be subjected to substantial discrimination and/or violence and abuse. I am not satisfied there is such evidence in this case. It is argued that this appellant is particularly at risk because he can be readily identified as gay in Jamaica and his being a prostitute in the past. Whilst I accept that the appellant may be readily identified as homosexual and that he has acted as a prostitute in the past, I do not accept that these facts elevate his claim to the necessary threshold or put him at particular risk. His own evidence does not support that proposition.
37. In the light of the evidence and the decided authorities on the issue, I am of the view that homosexuals generally in Jamaica, and this appellant in particular, do not face a real risk of really serious ill-treatment. This appellant was not the victim of any systemised attacks.
38. Paragraph 6.21 of the CIPU reports sets out efforts by the Jamaican authorities to take firm steps and makes specific commitments to end unlawful killings with police impunity. Amnesty International have said that the disbanding of the crime management unit implicated in numerous human rights abuses is a particularly welcome step, albeit not enough.
39. Objective evidence makes clear the degree of disquiet and contempt many people in Jamaica feel and exhibit towards homosexual activity. Homosexuals are often the victims of the unpleasant and threatening acts. I am, however, of the view, based on the objective evidence taken as a whole, that the discrimination and homophobia in Jamaican society is not state sanctioned. I am satisfied that there is a sufficiency of protection. In the light of my findings of fact, the issue of relocation does not arise.
40. I come to my conclusions having considered all the documents, evidence, submissions and case law before me and not least the very competently prepared, comprehensive and helpful skeleton argument submitted by the appellant's representative."
Grounds of Appeal
The Secretary of State's Concession
The Appellants' submission on the first stage reconsideration
"Persecution may involve physical or mental ill-treatment. Torture is such ill-treatment carried to extremes. But persecution, unlike torture, always involves a persistent course of conduct…. Since the conduct may be directed against a particular person or a particular group of persons, an instant of torture of a person which is the sole instant affecting that person may amount to persecution if there are other incidents affecting a group of which that person is a member. But isolated incidents of torture are not enough to constitute persecution without more."
"He could have been identified as gay because he was dressed to go out."
The Respondents' submissions on the first stage reconsideration
"Although isolated incidents of torture were not enough to constitute persecution without more, an incident of torture of a person which was the sole incident affecting that person might amount to persecution if there were other incidents affecting a group of which that person was a member."
The Appellants' reply on the first stage reconsideration
Our findings as to error of law
The Second Stage Reconsideration
"Mr Jorro emphasised that homosexuality is a matter of sexual identity rather than sexual activity. We accept that. Whether or not a person's homosexuality is an innate characteristic or chosen behaviour is immaterial. In either case it is not something that he should (not) be required to give up even if he could." We think that the word "not", which we have bracketed, should not appear.
"I have observed that a gay man with wealth and status can be left alone as long as he remains within his social circles and does not cause his sexual orientation or his same sex partnership to attract any attention. His sexual orientation will be tolerated as long as he is not openly gay. At the same time, I have observed that the affluent gay man can be subject to extortion for fear that his sexual orientation becomes public knowledge.
The expert evidence and country material before us
"Risk of harm to homosexual men as a result of homophobic violence;
Sufficiency of protection available to homosexual men by the Jamaican state;
The possibility of internal relocation to avoid the risk of homophobic inspired violence."
"Based on the totality of the information I have, I consider that men who are, or who are perceived to be, homosexual are at risk of homophobic inspired violence in Jamaica. The agencies of the Jamaican government, primarily the police, lack both the capacity and the will to offer these men any effective protection from those who are hostile to them because of their sexual orientation. Internal relocation in Jamaica is unlikely to reduce or eliminate this risk."
"Mr Sobers is a member of the Jamaica bar and a former executive Director of the Independent Jamaica Council for Human Rights. He is clearly a distinguished and reputable expert on matters concerning human rights in that country. Very fairly, Mr Clarke, on behalf of the Secretary of State, describes his report as a careful and considered one by somebody who knows what his is talking about."
"7. Homophobia is a deeply entrenched cultural norm in Jamaica that, at its worst, is capable of provoking murder or the infliction of serious bodily injury. The intensity (and veritable universality) of this norm is unconstrained by variables such as political orientation, social class, education, age, gender, and geography (urban/rural). Some of the most virulent expressions of anti-homosexuality that I have heard have come from the so-called "educated" classes in Jamaica."
9. It should be noted that the mere circulation of a rumour in Jamaica that one is gay would be sufficient to excite homophobic sentiments/violence".
"Prime Minister P J Patterson has made it clear that his government has no intention of repealing Section 76 of the OAPA (Offences against the Person Act). In 2000, Patterson declared at a People's National Party) (PNP) Conference in Kingston that the laws relating to homosexuality would never be repealed while he was Prime Minister. Mr Patterson in June 2001 found it necessary to declare his sexuality to the nation. "My credentials as a life long heterosexual person are impeccable". Mr Patterson said, "anybody who tries to say otherwise is not just smearing but is engaging in vulgar abuse".
"Jamaica's public defender Howard Hamilton, QC enjoys some statutory authority to protect the fundamental rights and freedoms of Jamaicans. However, he has maintained that he is unable to advocate the freedom of expression of homosexuals because homosexuality is against the law (Section 76 of the Offences against the Person Act)."
"In the context of Jamaica's crime culture and the extremely high levels of interpersonal violence, homosexuals are at risk of more than verbal abuse; As a group they are likely to be the victims of violence and, on occasions, murder. Homophobic violence enjoys a certain impunity in Jamaica that has not changed since 2001 (the year DW left Jamaica), and I therefore have no reason to believe that homosexual men are any safer in Jamaica. Having regard to what I know of Jamaican cultures of crime and policing, gay men have very sound reasons to continue to be fearful of homophobic violence in Jamaica."
"The legislators apparently considered repealing the provisions of the Offences against the Person Act so buggery between consenting adults would no longer be an offence. However, no legislator of any political party was likely to endanger his political career by standing up for tolerance to homosexuality."
"Jamaican police have traditionally been a bastion of homophobia. My experience leads me to believe that homophobia is universal in the Jamaican police force. While there are police officers who do not personally subscribe to this prejudice, they have to co-operate with, and rely on fellow officers who do. As far as I am aware, the police have far more of a reputation for victimising gay persons than protecting them. I have frequently had members of the gay community complain to me of the indifference or contempt displayed to them by the Jamaican police. One of the typical modes of harassment is to prosecute or threaten to prosecute suspected gay men for buggery (buggery is illegal for both heterosexuals and homosexual men, but typically, prosecutions are only pursued against homosexual men).
The Jamaican police therefore largely mirror (and amplify) the homophobic attitudes which are universally manifested in all segments of Jamaican society. While there are police officers who are not homophobic, many, if not most, are unlikely to secure the necessary co-operation of their colleagues to investigate and prosecute homophobia inspired offences. It is the exception rather than the norm for Jamaican police to protect homosexuals from violent assaults. Homophobia in the police like the rest of Jamaican society, is very much a universal constant. "
"Gay men have reported being easy targets for extortion by state and non-state actors. In a homophobic environment, the discrimination suffered at the hands of the police, the fear of being identified as a homosexual and of being unable to obtain or pay for adequate legal representation, the possibility of being prosecuted for buggery, combine to prevent gay men seeking redress when they are victims of extortion."
"Based on the totality of the foregoing, and indeed my own professional experience with Jamaican Constabulary Force, I have little confidence that any homosexual man would enjoy a "sufficiency of protection" against homophobic violence in Jamaica."
"84. Relocation within Jamaica is limited by the small size of the island (4,400 square miles). The longest distance between Jamaica's west and east coast does not exceed 150 miles by road. In the population of under 3 million people, homophobia is as strongly felt from one end to the other.
85. A gay man relocating outside the community from which he originated would not necessarily translate into avoidance or elimination of the risk of attack resulting in injury or even death. He would find it virtually impossible to relocate to an area where he would avoid the problems of the homosexual male in Jamaica.
86. Moreover, if a gay man were to relocate to another community, he would again be the stranger "suspected of being gay" who becomes the easy target of homophobia. He would lack the established roots which might give him a measure of protection if he were sufficiently discreet about this sexual orientation. A known (as distinct from open) gay relationship is not impossible to find in Jamaica. However, the men have to meet the class, status and wealth criteria that could allow them that small measure of liberty. Gay men who live and interact in some of the more affluent areas of Jamaica, and who do not call attention to themselves and their sexual orientation, can be left alone. As such, their homosexuality remains the subject of rumour and speculation and is not openly discussed. However, this "don't ask, don't' tell" attitude it limited to their own community and circle of friends and family.
87. It should be specially noted that persons who offer (or appear to offer) support to homosexuals almost invariably become targets themselves. Few, if any persons will be willing to place their lives on the line in the long term."
"Summary: risk/sufficiency of protection/internal relocationRISK88. In the context of Jamaica's crime culture, there is a real risk that any homosexual man will experience homophobic violence. Having regard to what I know of Jamaican society and its cultures of crime and policing, the overwhelming majority of homosexual men have very sound reasons to continue being fearful of homophobic violence/reprisals.89. Homophobic violence enjoys a certain impunity in Jamaica that has not changed, and I therefore have no reason to believe that gay men are any safer in Jamaica than in 2001.SUFFICIENCY OF PROTECTION90. The Jamaican state has been quite ineffective in combating, much less neutralising violent crime. The institution or weaknesses of the police force reinforce the status quo. Against this background, I am not confident that the police have the capacity to protect homosexual men in Jamaica.91. In my opinion, there is also no "sufficiency of protection" available in Jamaica to insulate gay men from violence or threats of violence from those who are antipathetic to their sexual orientation. Given the institutional and cultural norms of the Jamaican police, it is highly unlikely that the police will be willing or able to protect gay men from homophobic attacks. The lack of effective oversight bodies serves to aggravate this status quo. There does not exist, in my view any adequate means of redress, if the police fail to protect. Having regard for the largely unrestrained culture of homophobia, the Jamaican authorities are unable and unwilling to effectively protect homosexual men. Organisations like J-FLAG have been unable to make any significant difference to this status quo.INTERNAL RELOCATION92. Relocating to other communities in Jamaica would not, in my opinion, reduce the risk of homophobic violence. Firstly, Jamaica is a small country in which it is difficult, if not impossible, to anonymous (sic). Secondly, homophobic violence/intimidation continues to be a universal constant in Jamaica, which I would expect any gay man to be exposed to in Jamaica wherever he might relocate.CONCLUSION93. I am of the view that homosexual men remain at risk of harm in any part of Jamaica at this time. I am also of the view that the available state mechanisms lack the capacity for reducing or eliminating the risk."
"Amnesty International receives frequent reports of on-going harassment of gay men and women in Jamaica, often amounting to violence. Such instants have been documented in Amnesty International reports including "Jamaica; killings and violence by police – how many more victims" (AI Index AMR 38/003/2001) and "Jamaica: crimes of hate conspiracy of silence – torture and ill-treatment based on sexual identity" (AI Index ACT 40/016/2001). Since the publication of these reports many other allegations have been received.
Gay men in Jamaica remain at risk of suffering violence, including sexual violence. It is certainly not implausible to suggest that a person would be singled out for ill-treatment or violence on account of his homosexuality. A man from Jamaica could face considerable risk of torture or ill-treatment, possibly even death, as a result of sexuality becoming known to the community." This organisation has interviewed many such individuals who have been forced to flee their areas in such circumstances. Reports of "vigilante" justice or mob violence are particularly common. Vulnerability such attacks would be increased by the familiar and social isolation that may occur that once a person's sexuality, or suspected sexuality, becomes known to the local community."
"The Offences against the Person Act prohibits "acts of gross indecency" (generally interpreted as any kind of physical intimacy) between men, in public or in private and is punishable by 10 years in prison. Prime Minster Patterson stated that the country would not be pressured to change its anti-homosexual laws.
The Jamaican forum for Lesbians, all sexuals, and gays (J-FLAG) continued to report allegations of human rights abuses, including police harassment, arbitrary detention, mob attacks, stabbings, harassment of homosexual patients by hospital and prison staff, and targeted shootings of homosexuals. Police often did not investigate such incidents. Some of the country's most famous dance hall singers gained the attention of international human rights groups during the year for their homophobic lyrics, which incited violence against homosexuals. The 2001 poll found that 96% of citizens were opposed to legalising homosexual activity.
Male inmates deemed by prison wardens to be homosexual are held in a separate facility for their protection. The method used for determining their sexual orientation is subjective and not regulated by the prison system. There were numerous reports of violence against homosexuals inmates, perpetrated both by the wardens and by other inmates, but few inmates sought recourse through the prison system.
Homosexual men were hesitant to report incidents against them because of fear for their physical well being. Human rights NGOs and government entities agreed that brutality against homosexuals, both by police and private citizens, was widespread in their community.
No laws protected persons living with HIV/Aids from discrimination. Human rights NGOs reported severe stigma and discrimination for this group. Although healthcare facilities were prepared adequately to handle patients with HIV/Aids, healthcare workers often neglected such patients".
"On June 9 2004, Brian Williamson, Jamaica's leading gay rights activist, was murdered in his home, his body mutilated by multiple knife wounds. Within an hour after his body was discovered, a human rights watch researcher witnessed a crowd gathered outside the crime scene. A smiling man called out, "Batty Man (homosexual) he get killed!". Many others celebrated Williamson's murder, laughing and calling out, "lets get them one at a time" "that's what you get for sin" "let's kill all of them". Some sang "boom bye bye," a line from a popular Jamaican song about killing and burning gay men.
Jamaica's growing HIV/Aids epidemic is unfolding in the context of widespread violence and discrimination against people living with and at high risk of HIV/Aids, especially men who have sex with men. Myths about HIV/Aids persist. Many Jamaicans believe that HIV/Aids is disease of homosexuals and sex workers whose "moral impurity" makes them vulnerable to it, or that HIV is transmitted by casual contact. Pervasive and virulent homophobia, coupled with fear of the disease, impedes access to HIV prevention information, condoms, and healthcare.
Violent acts against men who have sex with men are commonplace in Jamaica. Verbal and physical violence, ranging from beatings to brutal armed attacks to murder, are widespread. For many, there is no sanctuary from such abuse. Men who have sex with men and women who have sex with women reported being driven from their homes and their towns by neighbours who threatened to kill them if they remained, forcing them to abandon their possessions and leaving many homeless. The testimony of Vincent G, 22, is typical of the accounts documented by Human Rights Watch: "I don't live anywhere now… some guys in the area threatened me. "Batty Man you have to leave. If you don't leave, we will kill you".
Victims of violence are often too scared to appeal to the police for protection. In some cases the police themselves harass and attack men they perceived to be homosexual. Police also actively support homophobic violence, fail to investigate complaints of abuse, and arrest and detain them based on their alleged homosexual conduct. In some cases, homophobic police violence is a catalyst for violence and serious – sometimes lethal – abuse by others. On June 18, 2004, a mob chased and reportedly "chopped, stabbed and stoned to death" a man perceived to be gay in Montego Bay. Several witnesses told Human Rights Watch that police participated in the abuse that ultimately led to this mob killing, first beating the man with batons and then urging others to beat him because he was homosexual.
Because HIV/Aids and homosexuality often are conflated, people living with HIV/Aids and organisations providing HIV/Aids education and services have also been targeted. Both state and private actors join violent threats against gay men with threats against HIV/Aids educators and people living with HIV/Aids. In July 2004, for example, the Jamaican Forum of Lesbians, All-Sexuals and Gays (J-FLAG) received an e-mail threatening to gun down "gays and homosexuals" and "clean-up" a group that provided HIV/Aids education for youth. In a 2003 case, a police officer told the person living with HIV/Aids that he must be homosexual and threaten to kill him if he did not "move (his) AIDS self from here".
Discrimination against people living with HIV/Aids in Jamaica poses serious barriers to obtaining the necessary medical care. In interviews with people living with HIV/Aids, Human Rights Watch found that health workers often mistreated people living with HIV/Aids, providing inadequate care and sometimes denying treatment altogether. Doctors failed to conduct adequate medical examinations of people living with HIV/Aids, sometimes refusing even to touch them. And, in some cases, lack of treatment in the initial stages made it even less likely that people living with HIV/Aids would receive healthcare services at a later date. Visible symptoms heighten the discrimination they faced, which in turn created further barriers to obtaining treatment. People suffering from visible HIV related symptoms were sometimes denied passage on public and private transportation, making it difficult to obtain any medical care facilities beyond walking distance.
People living with HIV/Aids said that health workers also routinely released confidential information to other patients and to members of the public, both through discriminatory practice that signalled patients HIV status (such as segregating HIV positive patients from others) and by affirmative disclosure of such information. Such actions violate fundamental rights to privacy and also drive people living with HIV away from services.
Discrimination also spreads HIV/Aids in Jamaica by discouraging at risk individuals from seeking HIV related information or healthcare. Men who have sex with men reported that health workers had refused treatment at all, made abusive comments to them, and disclosed their sexual orientation, putting them at risk of homophobic violence by others. As a result, many men who have sex with men delayed or avoided seeking healthcare altogether, especially for health problems that might mark them as homosexual, such as sexually transmitted diseases. Because the presence of other sexually transmitted diseases heightens the risk of HIV transmission, such discrimination may have fatal consequences.
Jamaica is at a critical moment in its efforts to address a burgeoning HIV/Aids epidemic. An estimated 1.5% of Jamaicans are living with HIV/Aids, and HIV/Aids is on the increase. Jamaica's Ministry of Health has taken steps to combat discrimination against people living with and at high risk of HIV/Aids (such as men who have sex with men and sex workers), which it has recognised as a key factor driving Jamaica's HIV/Aids epidemic. It national HIV/Aids programme has fostered important relationships with non-governmental organisations with established links to marginalised high risk groups, provided support for their HIV/Aids work with them, and looked to them for guidance in developing an effective response to the epidemic. It is has also provided HIV/Aids training for health personnel addressing stigma and discrimination.
But other parts of Jamaica's government undermine these important efforts by condoning or committing serious human rights abuses. Abuses against men who are have sex with men take place in a climate of impunity fostered by Jamaica's sodomy laws and are promoted at the highest level of government. Jamaican legal provisions that criminalise consensual sex between adult men are used to justify the arrest of peer HIV educators and to deny HIV prevention services to prisoners, among others. High level political leaders, including Prime Minister PJ Patterson and Minister of Health John Junor, repeatedly refused to endorse repeal of discriminatory legislation, ignoring not only international human rights standards but also reports by both the government's national HIV/Aids programme and its advisory national aids committee on the role of these laws in driving Jamaica's HIV/Aids epidemic.
Jamaican health officials acknowledge that Jamaica's sodomy laws make it difficult for them to work directly with men who have sex with men. As one high level health official told human rights watch:
"We don't promote direct programmes or services to MSM (Men who have sex with men) as a group because the existing laws impede this work (and) because (of) the high level of stigma and discrimination, they are not open to getting services through the public sector."
The police, however, actively impede government supported peer HIV prevention efforts among men who have sex with men and also among sex workers. AIDS outreach workers reported that the very possession of condoms, a key tool in HIV protection, triggers police harassment, and in some cases arrest and criminal charges.
Jamaica's failure to take action to stop human rights abuses permitted by state agents, to take measure to protect against abuses by state and private actors, and to ensure access to HIV/AIDS information and services to all Jamaicans violate its obligations as a state party to regional and international human rights treaties.
In 2004, Jamaica launched an ambitious project to provide anti-retroviral treatment to people living with HIV/AIDS and to address underlying human rights violations that are driving the epidemic. These are promising initiatives. They will be compromised, however, unless government leaders make a sustained commitment to end discrimination and abuse against people living with and at high risk of HIV/AIDS. The government knows that although HIV/AIDS is stigmatised as a "gay disease" in reality in Jamaica as in most of the Caribbean, the most common means of transmission is heterosexual sex. It also knows that if the epidemic in Jamaica continues to accelerate all Jamaicans will suffer. This fact should encourage high level Jamaican government officials to act quickly and forcefully to eliminate discriminatory laws and abusive practices that violate basic rights to equality, dignity, privacy, and health and undermine an HIV/AIDS prevention and treatment efforts. This includes speaking out strongly and acting forcefully against homophobic violence and abusive treatment of homosexual men and women and of sex workers. If the Jamaican government chooses instead to let popular prejudices continue to undermine its attempts to establish right spaced HIV/AIDS policies, the consequences for all Jamaicans will be dire. Thousands of Jamaicans will be consigned to lives of horrific abuse and thousands will face premature and preventable death".
6.155 According to the International Lesbian and Gay Association [ILGA] website accessed 21 February 2005, Sections 76-79 [of the Jamaican] Penal Code criminalises homosexual intercourse between men with a penalty of up to 10 years imprisonment, with or without hard labour. Same sex female homosexual activity is not mentioned.6.156 The Jamaica Forum for Lesbian, All-Sexual and gays (J-Flag) website, accessed 21 February 2005 states"J-Flag is actively lobbying for legal reform. Our Parliamentary Submissions to amend the non-discrimination clause within the Constitution to include sexual orientation was reviewed by the Joint Select Committee on the Charter of Rights Bill. In December 2001, the Committee made its recommendations to Parliament. It declined to support our proposed amendment but did recommend that the House consider repealing the Buggery Law. We [J-FLAG] are now strengthening our efforts to ensure the successful passage of this bill through parliament, and will continue to push for the amendment to the constitution".6.157 The J-Flag website also stated that"Contrary to popular belief, it is not actually illegal to be homosexual in Jamaica. Being a homosexual does not contravene any of the existing laws; the law makes certain 'homosexual acts' illegal, and these laws are used to persecute gay men. They state that "acts of gross indecency" and buggery [anal sex] are illegal. Although buggery refers to anal sex between a man and another man, a woman or an animal, in practice the law is predominately enforced against two men. Lesbians are also discriminated against in the wider society, however no laws target lesbian or lesbian conduct."6.158 The J-Flag website further noted that "The Offences Against Persons Act prohibits "acts of gross indecency" between men, in public or in private. (This is a very general term which can be interpreted to mean any kind of physical intimacy)." Under:
- Article 76 (Unnatural Crime); "whosoever shall be convicted of the abominable crime of buggery [anal intercourse] committed either with mankind or with any animal, shall be liable to be imprisoned and kept to hard labour for a term not exceeding ten years."
- Article 77 (attempt); "Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour."
- Article 78 (Proof of Carnal Knowledge); "Whenever upon the trial of any offence punishable under this Act, it may be necessary to prove carnal knowledge, it shall not be necessary to prove the actual emission of seed in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only."
- Article 79 (Outrages on Decency); "Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for a term not exceeding 2 years, with or without hard labour."6.159 The J-Flag website also gave details on 'Your Rights, Duties and Responsibilities as a Jamaican Citizen' – one of them being that "as a Jamaican citizen you also have through the Constitution, the right to have your privacy respected within your home and family."6.160 The J-Flag website stated that, J-Flag among other things: does significant personal development and community building in the gay community. They offer counselling and referral services to gay people and their families. They consult and collaborate with noted local and international figures and human rights/health/political interest groups. J-Flag are currently in the process of working for constitutional and other legislative changes and have made written submissions to the Joint Select committee of the Houses of Parliament for the inclusion of 'Sexual Orientation' as a basis on which the Constitution of Jamaica prohibits discrimination. They maintain a library and archive of resource for academic research.6.161 There were no reports among the sources consulted by the Research Directorate of the Immigration and Refugee Board, Ottawa JAM35108.E dated 21 August 2000 accessed 25 February 2002, on the police protection available to homosexuals. However, a report in the Jamaica Gleaner – a Go-Jamaica Feature 2001 – on Gays in Jamaica stated that
"Homosexuals are increasingly becoming the targets of hate crimes in Jamaica but are afraid to press charges against their assailants for fear of bringing attention to their lifestyle… Earlier this year , several students attending the Northern Caribbean University in Mandeville were attacked and beaten for alleged homosexual involvement… The police, too are aware of some of the attacks which have been made on gays but note that they hardly have enough evidence to go on. Several months ago [prior to publication of this feature in 2001] in St Catherine, police officers had to rescue two men from being killed by a group of angry residents. The men were allegedly caught having oral sex in the back seat of a car. 'Yes it is something that happens quite frequently.' Explained an officer attached to the Montego Bay police station. "Homosexuals are afraid to report some of the atrocities that have been carried out against them for fear of being exposed so they remain quiet while criminals walk free. Police officers many of whom are openly hostile towards gays, are also to be blamed for this. As a member of a human rights group, it is my belief that hate crimes, regardless of against whom, are wrong and should be condemned."
6.162 The above-mentioned 2001 feature in the Jamaica Gleaner states that "Public Defender, Howard Hamilton, said that he is outraged at the level of hate crimes going on in the country. Speaking recently at the annual general members meeting of the Cornwell Bar Association held in Green Island, Hanover, Mr Hamilton warned that he would soon be instructing lawyers engaged in private practice to file cases in the courts against the state and any other bodies on behalf of citizens who make strong allegations on breaches of their constitutional rights. He also noted that attorneys would be paid for their services."6.163 The 2001 Jamaica Gleaner report feature also mentioned that "Clayton Morgan, President of the Cornwell Bar Association, said that his organisation would be working closely with the Public Defender's office to stem the flow of hate crimes in the country. He said that the homophobic nature of the country makes it easy for homosexuals to be targeted and that people at times are reluctant to assist them for fear of being branded.6.164 The USSD 2004 noted that
"The Jamaica Forum for Lesbian, All Sexuals, and Gays (J-FLAG) continued to report allegations of human rights abuses, including police harassment, arbitrary detention, mob attacks, stabbings, harassment of homosexual patients by hospital and prison staff, and targeted shootings of homosexuals. Police often did not investigate such incidents. Some of the country's most famous dancehall singers gained the attention of international human rights groups during the year for their homophobic lyrics, which incited violence against homosexuals. A 2001 poll found that 96 percent of citizens were opposed to legalizing homosexual activity."
6.165 An article dated 19 February 2004 in the Jamaica Observer mentioned that owing to the homophobic nature of Jamaica, gay men can hardly expect protection even from their parents. A father, concerned that his son might be gay, turned up at Dunoon Park Technical School in east Kingston and apparently encouraged other students to beat his son. School officials withheld the boy's name and the extent of his injuries was not immediately known. As students began to maul his son, the man is reported to have driven away. The Washington Blade noted in an article dated 27 February 2004 that law enforcements officers, [at the time] headed by Jamaican Commissioner of Police Francis Forbes, also were attacked when they arrived to save the teen, the Observer reported. The extent of the youngster's injuries was not known, according to the Observer. Police officials declined to take further action, claiming it was a family matter.6.166 The USSD 2004 also reported that "On June 9 , Brian Williamson, a prominent homosexual rights activist and founding member of J-FLAG, was found stabbed to death at his home in Kingston Human rights groups believed that the brutality of Williamson's death indicated a hate crime, but the JCF maintained that the crime was a robbery. A suspect was remanded in custody at year's end ".6.167 In November 2004, a Human Rights Watch report entitled 'Hated to Death; Homophobia, Violence and Jamaica's HIV/Aids Epidemic' noted that violent acts against men who have sex with men are commonplace in Jamaica. Verbal and physical violence, ranging from beatings to brutal armed attacks to murder, are widespread. For many, there is no sanctuary from such abuse. Men who have sex with men and women who have sex with women reported being driven from their homes and their towns by neighbours who threatened to kill them if they remained, forcing them to abandon their possessions and leaving many homeless. The testimony of Vincent G., twenty-two, is typical of the accounts documented by Human Rights Watch: "I don't live anywhere now…. Some guys in the area threatened me. "Battyman, you have to leave. If you don't' leave, we'll kill you."6.168 The November 2004 HRW Report also stated that "Victims of violence are often too scared to appeal to the police for protection. In some cases the police themselves harass and attack men they perceived to be homosexual. Police also actively support homophobic violence, fail to investigate complaints of abuse, and arrest and detain them based on their alleged homosexual conduct. In some cases, homophobic police violence is a catalyst for violence and serious – sometimes lethal – abuse by others".6.169 The November 2004 HRW further mentioned that
"Jamaican health officials acknowledge that Jamaica's sodomy laws make it difficult for them to work directly with men who have sex with men. As one high-level health official told Human Rights Watch: 'We don't promote direct programs or services to MSM [men who have sex with men] as a group because the existing laws impede this work [and] because [of] the high-level of stigma and discrimination, they're not open to getting services through the public sector.' The police, however, actively impede government-supported peer HIV prevention efforts among men who have sex with men and also among sex workers. AIDS outreach workers reported that the very possession of condoms – a key tool in HIV prevention – triggers police harassment, and in some cases, arrest and criminal charges."
6.170 Responding to the above mentioned November 2004 HRW Report, the Jamaica Gleaner dated 18 November 2004 reported that the
"Government yesterday [17 November 2004] dismissed claims by the international body, Human Rights Watch, that the authorities have been soft on police abuses on homosexual males and persons affected by HIV/AIDS. 'We find the approach of this organisation unacceptably insensitive,' Information Minister Burchell Whiteman said in a statement issued to the media yesterday [17 November 2004]. 'We also as the duly elected representatives of the people feel that it is the people who must set out agenda in respect of the legislation which we pass or the repeal of any existing laws. We are currently not about to respond to any organisation, external to this country, which may want to dictate to us how and when to deal with the laws of our land,' said Senator Whiteman… The international body also criticised the Government's stance on legislation (the buggery law) on homosexuality, which they say is a 'discriminatory legislation'."
6.171 The Jamaica Gleaner dated 19 November 2004 also noted that the Police Federation also condemned the findings published in the November 2004 HRW and called on the minister of justice to slap sedition charges on the body and local groups, which they say were slandering both the government and the police force. The Jamaica Gleaner dated 29 November 2005 noted that "While careful to point out that they were not advocating violence against gays, panellists at Saturday's [27 November 2004] 'Men on a Mission' conference in Montego Bay denounced homosexuality as a moral defect, saying it should not be sanctioned by the Church."6.172 A Human Rights Watch document dated 30 November 2004 stated that
"Jamaican authorities should reject a police demand to press criminal charges against local human rights defenders who have criticized police abuses against gay men and people living with human rights defenders who have criticized police abuses against gay men and people living with HIV/AIDS, Human Rights Watch said today [30 November 2004] in a letter to the Jamaican prime minister…. Five Jamaican human rights organizations – Families Against State Terrorism, the Independent Jamaica Council for Human Rights, Jamaica AIDS Support, Jamaicans for Justice, and Jamaican Forum for Lesbian, All-Sexuals, and gays – all joined Human Rights in the launch of the report. The report led to furious denials by Jamaican government officials, who claimed that police abuse doesn't take place. Officials also defended Jamaica's sodomy laws, Victorian-era legislation introduced by Britain when it was the colonial power, as basic to the country's sovereignty and culture. However, Jamaica is party to the International Covenant on Civil and Political Rights, a treaty that prohibits discrimination on the basis of sexual orientation… In an open letter to Prime Minister P J Patterson, Human Rights Watch responded in detail to criticism by Jamaica's commissioner of police and by the head of the National AIDS Program. The Jamaican police should investigate allegations of homophobic abuse submitted to it months before, Human Rights Watch said."
6.173 As reported in an article dated January 2002 in SHAAN online – IPS e-zine on Gender and Human Rights, according to J-Flag, alleged homosexuals in the inner city are particularly at risk. In 2002, a homosexual man was shot to death as he sought refuge in a churchyard in central Kingston.
Death of gay rights activist Brian Williamson
6.174 An AI Press Release – AMR 38/010/2004 dated 10 June 2004 – 'Amnesty International mourns loss of leading human rights defender' stated that
"Amnesty International today [10 June 2004] mourns the loss of Brian Williamson, Brutally murdered on 9 June 2004, and urges that a thorough investigation be conducted into his death… the police have concluded that the motive for the murder was robbery due to the reported removal of a safe. Amnesty International urges the investigating authorities to keep an open mind as to the motive behind this killing… There remains a strong possibility that Brian Williamson's profile as a gay man and advocate of homosexual rights made him a target for those with homophobic views. That taking of money or other items may have been an afterthought by the perpetrators of the killing with the primary motivation for the murder being hatred to homosexuals."
6.175 In a release by the International Gay and Lesbian Human Rights Commission (IGLHRC) dated 14 June 2004 they stated that
"The International Gay and Lesbian Human Rights commission (IGLHRC) mourns the death of long-time friend and colleague, Brian Williamson, a gay activist from Jamaica found murdered in his home in Kingston last week. Brian was a founding member of Jamaica Forum for Lesbian, All-Sexuals and Gays (J-FLAG) and one of the country's most visible and outspoken activists."
6.176 A Jamaica Gleaner news report dated 10 June 2004 stated that
"The death of Brian Williamson, outspoken gay rights activist and founding member of the Jamaica Forum for Lesbians, All-Sexuals and Gays (J-FLAG), sent shockwaves throughout the local gay community yesterday [9 June 2004]. According to police reports, the 59-year old Williamson was found with multiple chop wounds in his apartment at 11:15 am. Investigators suspect robbery to be the main motive for the killing as a safe with valuables was missing, and the apartment had been ransacked. However, while the police suspect robbery as the main motive, the gay rights advocacy group J-FLAG was quick to label Williamson's death as a 'hate crime'."
6.177 The same article also quoted one of his friends as saying that
"He was very sweet, and the most adorable person you could find, very kind and trusting, and I believe that is what led to his death. He was my landlord, but he was like family to me, we would joke about the coincidence of us having the same last name, she said, in between sobs. I don't think he was killed because of his … sexual orientation, he was just too trusting'."
Findings in relation to the appellant
"Persecution may involve physical or mental ill-treatment. Torture is still ill-treatment carried to extremes. Persecution, unlike torture, always involves a persistent course of conduct… since the conduct may be directed against a particular person or a particular group of persons, an instant of torture of a person which is the sole instant affecting that person may amount to persecution if there are incidents affecting a group of which that person is a member. But isolated incidents of torture are not enough to constitute persecution without more."
"Although S395 was presented to the court that granted permission in this appeal as a new departure in refugee law, and for that reason justifying the attention of this court, in truth it is no such thing. McHugh and Kirby JJ, at their paragraph 41, specifically relied on English authority, Ahmed v SSHD  INLR 1. It has been English law at least since that case, and the case that preceded it, Danian v SSHD  INLR 533, that, in the words of the leading judgment of Simon Brown LJ at pp 7G and 8C – D:
"In all asylum cases there is ultimately a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason…. The critical question: if returned, would the asylum seeker in fact act in the way he says he would and thereby suffer persecution? If he would, then, however unreasonable he might be thought for refusing to accept the necessary restraint on his liberties, in my judgment he would be entitled to asylum."
It necessarily follows from that analysis that a person cannot be refused asylum on the basis that he could avoid otherwise persecutory conduct by modifying the behaviour that he would otherwise engage in, at least if that modification was sufficiently significant in itself to place him in a situation of persecution."
P R Moulden
Senior Immigration Judge