Category: All Countries

2021 RLLR 45

Citation: 2021 RLLR 45
Tribunal: Refugee Protection Division
Date of Decision: August 4, 2021
Panel: Heidi Sprung
Counsel for the Claimant(s): Anthony P Navaneelan
Country: Nigeria
RPD Number: TB9-26476
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000128-000130

[1] MEMBER: I’ve considered your testimony and other evidence in the case and I am ready to render my decision. You will receive a transcript of this decision. It might be edited to correct grammar or add references to personal and country conditions documents. This is the decision in file TB9-26476. The claim of XXXX XXXX XXXX XXXX XXXX, a citizen of Nigeria who is claiming refugee protection pursuant to Section 96 of the Immigration and Refugee Protection Act.

[2] XXXX XXXX XXXX XXXX XXXX, you’ve claimed that you fear returning to Nigeria because you are bisexual. Your allegations and the hearing was conducted in accordance with Chairpersons Guideline 9 regarding proceedings before the IRB involving sexual orientation and gender identity and expression. XXXX XXXX XXXX XXXX XXXX, I find that you are a Convention refugee and your claim is accepted.

[3] The allegations in your Basis of Claim form are briefly summarized as follows. You are a bisexual man who has been in Canada since XXXX XXXX XXXX 2013. You began studying at the University of XXXX with a sponsorship of a Nigerian MP. When that sponsorship ended you continued to work during the summers in various places, Calgary, Edmonton and Vancouver for example, and you paid your fees and studied as much as you could. You now live in Toronto.

[4] During the time that you’ve been in Canada and particularly during your summer jobs at XXXX and XXXX in Vancouver, these locations being away from a predominantly Nigerian community, you felt free to meet and having sexual encounters with men and a few with women. You have realised and come to accept your identity and have come out as a bisexual man. Initially you were careful not to let people in the Nigerian community know your identity, nevertheless several of your friends and other friends in Canada are now aware of your identity. There are multiple affidavits and supporting letters from friends supporting your claim. Your Basis of Claim also documents your continued attempts to renew your student visa and other options for staying in Canada.

[5] With respect to your identity which is always the first issue, I am satisfied that your identity as a citizen of Nigeria is established through your testimony and a copy of your passport and other documentation on file.

[6] With respect to your testimony the panel is mindful of the principal that when a claimant swears to the truth of certain allegations this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. I am aware of the many difficulties faced by refugee claimants in establishing their claim, including the stress of the hearing and all the questions that are asked, as well as other cultural factors.

[7] I find that generally XXXX XXXX XXXX XXXX XXXX, you testified in a straightforward and compelling manner. Your testimony was clear and consistent with your allegations. It was internally consistent and consistent with the documentary evidence on file. You described coming to the realization that you were attracted to men. You described your first relationships. You readily answered questions regarding your social life and activities in the LGBTQ community including get togethers at your apartment in Toronto that were known as safe spaces for queers. Your testimony was compelling as I mentioned before.

[8] I note that the case is well documented with corroborative evidence, relevant recent social media posts including one that predates the refugee claim are in evidence as well as several affidavits supporting your allegations of being bisexual. You reasonably described the time and explained the time it took for you to realize and be comfortable in your sexual identity as well as the time it took to realize that you could make a refugee claim. In this regard you explained that no one in the Nigerian community talks about their immigration status and you explained that you didn’t realize that the refugee process would be a private process and this also led to a delay in making a refugee claim. I find on a balance of probabilities that you are bisexual and that the objective evidence supports your allegation that you can’t return to Nigeria and live safely as an openly bisexual man.

[9] With respect to the objective evidence, the Nigerian government outlawed same sex relationships in 2014. Same sex relations for men are criminalized throughout Nigeria and the recent report for the initiative for equal rights in the National Documentation Package as well as the UK Country Policy and Information note on sexual orientation and gender identity and expression, and the Response to Information Request on antiLGBTQ vigilante groups clearly indicate that there is a climate of impunity for perpetrators of violence against the LGBTQ community members and that there would be no protection from the state.

[10] To summarize I find that there is clear and convincing evidence that you would be at risk and that the state would be unwilling to protect you. For the same reasons you have no viable Internal Flight Alternative in Nigeria. You should not be expected to conceal your bisexual identity to live in Nigeria.

[11] Just to conclude XXXX XXXX XXXX XXXX XXXX, is a person in need of protection pursuant to Section 96 of the Immigration and Refugee Protection Act and the claim is accepted.

———- REASONS CONCLUDED ———

All Countries Turkey

2021 RLLR 44

Citation: 2021 RLLR 44
Tribunal: Refugee Protection Division
Date of Decision: January 8, 2021
Panel: Oluwabukola Adeoye
Counsel for the Claimant(s): Ian Wong
Country: Turkey
RPD Number: TB9-23616
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000124-000127

DECISION

[1] MEMBER: I have had the opportunity to consider your oral testimony and also review your documentary evidence and I am prepared to render my decision orally.

Introduction

[2] The claimant, XXXX XXXX, is claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act and claims to be a citizen of Turkey.

Determination

[3] I find that the claimant is a Convention refugee for the following reasons. I find that the claimant has established a serious possibility of persecution on the grounds of political opinion, as per s. 96 of the Immigration and Refugee Protection Act.

Allegations

[4] The claimant’s allegations are contained in her Basis of Claim form and I will not repeat them here, but in summary, the claimant alleges the following. The claimant alleges the fear of persecution in Turkey because of her Kurdish ethnicity and political opinion, specifically, she alleges that she is a member of the HDP and that she was arrested, detained, physically and verbally assaulted by the Turkish authorities because of her participation at anti-government rallies and demonstrations.

Analysis

Personal Identity

[5] Your identity as a national of Turkey is established by your testimony and a certified copy of your Turkish passport attached to Exhibit 1.

Political Identity

[6] In terms of the claimant’s political identity, I find on a balance of probabilities that the claimant has established her anti-government profile as a member and a supporter of the HDP. These were based on her oral testimony and several probative documentary evidence, which includes photographs of the claimant at HDP rallies in Turkey.

Credibility

[7] Even though, the Panel had concerns about the letter issued by the HDP, overall, the Panel found the claimant to be credible witness on the balance of probabilities on what is called to her claim that is her political opinion.

[8] The Panel, therefore, believes what she has alleged in support of her claim. The claimant testified in a straightforward manner, and there were no relevant inconsistencies in her testimonies or contradictions between her testimonies and other evidence before me that were not satisfactorily explained. Also, the Panel notes that the claimant was forthcoming in when she was asked questions and she did not know the answer, she clearly stated so and did not embellish her answers or tried to make up testimony on the spot.

[9] The Panel also finds that the claim was documented with documents found primarily in Exhibit 5, 6, 7, and 8, which includes a letter from the Toronto Kurdish Community and Information Centre, a letter of support from the claimant’s father, photographs of the claimant at rallies in Turkey and Canada, and a government issued print out of the claimant’s entry and exit from Turkey, in and out of Turkey. The Panel gives significant weight to these documents as it corroborates the claimant’s oral testimony in regard to her political profile and the persecution she suffered as a result of a political opinion.

[10] So, therefore, I accept your allegations due to your anti-government activities and affiliations with the HDP. You were targeted by the Turkish authorities. I, therefore, find that on a balance of probabilities that the claimant is credible, accept her allegations as credible, and that she has established her subjective fear.

Well-Founded Fear

[11] As it relates to the well-founded fear of the claimant’s fear of persecution, I find that the claimant’s subjective fear has an objective basis based on the objective documentary evidence before me.

[12] The National Documentation Package indicates that those persons who are or are perceived to be members of political opposition groups are subjected to a variety of human rights violations in Turkey. Under the guise of the emergency decrees and anti-terrorism laws, the Turkish government disproportionately subjects Kurdish, Alevi-Kurdish, and those critical of the government to these human rights violations.

[13] While Turkey is no longer in a state of emergency, the emergency decrees granting abusive powers remain enforced. Despite, the public declaration of a repeal of the state of emergency there is no change in the treatment of Kurdish persons or persons who are opposite to be critical of the government, just like the claimant.

[14] According to the United States Department of State Country Reports and Human Rights Practices of Turkey, there are approximately, 4,000 criminal persecutions for insulting Turkish leaders, politicians, or Turkishness. This number represents a significant increase in persecution compared to the pre-coup period.

[15] The documentary evidence also states that the problems reported included alleged tortured and abuse of detainees at times leading to their death, police violence against peaceful citizens, abuse of inmates in prisons, harsh and sometimes life-threatening prison conditions, detentions without warrant, and incommunicado detention. The documentary evidence also confirms that the authorities beat and threaten the opposition activists to force them to confess to false charges as in the case of the claimant.

[16] In regard to the HDP party, the documentary evidence confirms that the HDP recognizes and fights for the right of Kurdish people to [inaudible] determination and seek peaceful democratic solution to the Kurdish question based on equal rights and voluntary togetherness.

[17] It also confirms that the HDP has been the target of a number of attacks in the months that preceded and followed the 2015 elections in June 2015 and November 2015. The party reported that between July and October 2015 an important number of its members were taken into custody and that some HDP members were charged with the deformation of public authorities including insulting the president and most of them were detained and also charged with terrorism charges.

[18] The test in assessing your risk of harm is forward looking. You testified credibility about your fears regarding returning to Turkey and the treatment you would receive. Your testimony was consistent with the country conditions in Turkey just like I have read, and thus, I find that there is an objective basis to support your fear and I therefore, find that your fear is well-founded.

State protection

[19] With respect to state protection, given that your fear of persecution is at the hands of the Turkish government, it will appear to be unreasonable for you, the claimant, to approach the state for protection. Based on objective documentary evidence, I find that there is no adequate state protection and therefore, the presumption of state protection has been rebutted.

Internal Flight Alternative

[20] Given the information that the authorities in Turkey operate similarly throughout the country, I find that the claimant faces a serios possibility of persecution throughout Turkey and therefore, I find that there is no viable Internal Flight Alternative for the claimant anywhere in Turkey.

Conclusion

[21] Based on the foregoing analysis, I have determined that the claimant has established that there is a serious possibility of persecution on the convention ground of her political opinion and I therefore find that that claimant is a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act and I therefore accept her claim.

[22] So, this will conclude the hearing. I want to thank, Madam Interpreter. And thank you, Counsel.

[23] And congratulations to the claimant.

[24] COUNSEL: Thank you very much, ma’am.

[25] MEMBER: In the absence of any question, concerns, I am going to formally end the hearing.

——–REASONS CONCLUDED——–

All Countries Burma

2021 RLLR 43

Citation: 2021 RLLR 43
Tribunal: Refugee Protection Division
Date of Decision: January 7, 2021
Panel: Jan Mills
Counsel for the Claimant(s): Maureen Silcoff
Country: Burma
RPD Number: TB8-11538
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000101-000105

DECISION

[1] MEMBER: This is the claim for refugee protection made by XXXX XXXX XXXX XXXX, a citizen of Burma. The claimant entered Canada on XXXX XXXX XXXX 2018, having travelled directly from Burma. He made a refugee claim on arrival. At that time, the claimant was accompanied by his mother, who also made a claim. Their claims were later separated, at the request of the claimant, due to the sensitivity of his claim. The claimant is a 20-year-old transgender man who submits that he is at risk of persecution by the government and civil society because of his religion and sexual identity as transgender man.

[2] For the following reasons, I find that the claimant is a Convention refugee based on both his religion and sexual identity. In coming to my decision, I have considered the Chairperson’s SOGIE guidelines.¹

[3] I accept that the claimant is a citizen of Burma, based on his passport, and I accept that he is a Muslim, based on his testimony and national identity card.

[4] The allegations are set out in the narrative portion of the claimant’s Basis of Claim. There is no need for me to go into great detail into those allegations except to say that the claimant is a Sunni Muslim who is also identified by some factions as Rohingya due to a familial relationship with a member of the Rohingya community. As a member of the Muslim community, he has been discriminated against throughout his life. This discrimination included the inability to pursue his chosen profession because of an unofficial policy of not allowing Muslims to enter the higher professions such as medicine, which he wished to do. The claimant also testified as to the fear that he experienced as a member of the Muslim community and that violence towards Muslims is not unusual.

[5] The claimant also testified as to his sexual identity as a transgender male and is fearful of the treatment he would experience in his home country should he return there. The claimant testified as a young person exploring his gender identity, he was attracted to females, and later came to realize that he identified as male. His sexual identity manifested itself in his home country as sexual orientation towards females, that was not accepted by his family or society at large. The claimant’s testimony was consistent in all material aspects, with his Basis of Claim and narrative, and I find the claimant to be a credible witness.

[6] Based on the claimant’s testimony and the documents submitted, I find that the claimant has a subjective fear of persecution should he return to Burma. In doing so, I have also considered the cumulative impact of being a young, transgender, Muslim man, whose sexual identity also makes him vulnerable, not only in society at large, but also within his own Muslim community.

[7] My definition of a Convention refugee is someone who has a well-founded fear of persecution. Fear is, by its very nature, subjective, while the well-founded nature of that fear is an objective matter. Both subjective and objective components are required to meet the definition. The definition of Convention refugee is also forward-looking, and I must consider what risk the claimant would face today if he were to return to Burma. I must also find that there is credible, trustworthy and reliable evidence that establishes, on a balance of probabilities, that there is more than a mere possibility that the claimant would be persecuted if he were to return.

[8] S. 34 of Myanmar’s constitution entitles all Myanmar citizens to freedom of conscience and the right to freely to profess and practice religion, subject to public order, morality or health. S. 361 of the constitution recognizes the special position of Buddhism as the faith professed by majority of citizens. This applies only to Theravada Buddhism. That is Item 1.9, s. 3.47 of the country documentation.

[9] There are four laws known as the Protection of Race and Religion laws which concern interfaith marriage, religious conversion, monogamy, and population control. These were originally proposed by the Committee for the Protection of Nationality and Religion, an organization led by nationalist Buddhist monks, and were passed by the government in 2015. The UN’s special rapporteur for human rights in Myanmar has criticized the laws for undermining the rights of women, children, and religious minorities, particularly Muslims. These laws remain in force.

[10] At 12.1,² the Department of State Report, of page 3, indicates that since 1999 — and they used the word “Burma”, so I am using them interchangeably throughout the country documents — “Burma has been designated a country of particular concern under the International Religious Freedom Act of 1998 for having engaged in or tolerating particularly severe violations of religious freedom.” I also note that Myanmar is not party to the International Covenant on Civil and Political Rights. At 1.5,³ the country information indicates that there are several distinct Muslim communities living throughout Myanmar with different cultural and ethnic backgrounds. At the time of the 2014 census, Muslims made up approximately four percent of the population, and the majority lived in northern Rakhine State. Muslims are underrepresented in the public sector, there are no Muslim members of parliament, and consistent with the claimant’s testimony, Muslims have been excluded from a range of government jobs, including teaching and health professionals. Businesses owned by Muslims are reported, in order to procure contracts, to have to have a Buddhist interlocuter.

[11] Furthermore, Muslims experience a range of limitations on their ability to practice their faith freely. In recent years, authorities have blocked the rebuilding of mosques and madrassas that have been either damaged, destroyed or sealed. Muslims have also been denied access to basic rights and services. The Burma Human Rights Network documented multiple incidents of Muslims of all ethnicities being refused national registration cards. Reasons varied, ranging from the Muslim applicant being unable to provide extensive, and often difficult to obtain, documents to prove family lineage before 1824, and the refusal of immigration authorities to register a Muslim person as Bamar, the majority ethnicity.

[12] Anti-Muslim sentiment is prevalent throughout the country and is circulated through social media, some state institutions and mainstream news websites. In the same Item, at 3.72, “Muslims in Yangon have described increasing restrictions on their ability to practice their faith in recent years. Public events marking Islamic days were cancelled by authorities in Yangon in 2017 due to pressure from Buddhist nationalist groups. In April 2017, authorities closed two madrassas that educated several hundred primary school students in Thaketa Township, Yangon. The reduced tolerance for Islamic faith activities has been, at least in part, propagated by a rise in anti-Muslim sentiment at both an official and societal level and its most extreme form has resulted in violent incidents against the Muslim community.”⁴

[13] Muslims are also not permitted to enter some villages designated by communities as ‘Muslim-free zones’. The Burma Human Rights Network documented at least 21 Buddhist villages across Myanmar from 2012-2017, whereby villagers, with support from local authorities, erected signposts warning Muslims against entering the villages. DFAT at 1.4⁵ assesses the Muslims outside of Rakhine State to face “moderate levels of official and societal discrimination.”

[14] The country documentation, again the Department of State report on religious freedoms at 12.1, indicates that “Religious leaders and civil society activists reported that some government and military officials continued to deploy anti-Rohingya and anti-Muslim rumours and hate speech in official events.”⁶ While local and international experts said deeply awoken prejudices led to abuses and discrimination against religious minorities, some civil society groups have worked to improve inter-religious tolerance.

[15] Nonetheless, hate speech against Muslims continued to be widespread on social media. Recently, Facebook removed 89 Facebook accounts, as well as 5 Instagram accounts, for engaging in and coordinated authentic behaviour. An investigation found that some of this activity was linked to individuals associated with the military. According to media reports, the military conducted a coordinated effort to spread anti-Muslim and anti-Rohingya sentiment through dummy Facebook accounts and other social media.

[16] Local and international experts said [inaudible] awoken prejudices led to instances of abuse and discrimination against members of religious minorities by societal actors. [inaudible] prominent military, civil and religious leaders continued to promote the idea that Burmese Buddhists culture was under assault by Islam and Muslims and would come through the mountains of Western Burma, northern Rakhine State where the Rohingya live.

[17] While the country has taken some steps to rein in ultra-nationalist Buddhist monks, those steps fall short and the military, who largely control the government, continues to propagate anti-Muslim rhetoric. Country documentation also demonstrates that for minority communities, including Muslims, they do not trust the government to assist them.

[18] Furthermore, same-sex conduct is illegal in Myanmar and subject to up to 10 years imprisonment. LGBTQ, and in particular transgender people, are said to have been targeted by the police and subject to abuse at the hands of the authorities. Although there has been some ability to organize same-sex activities, such as a pride parade in 2019, these continue to be met with opposition from the government. That is at 6.1.⁷There is a high level of societal discrimination in Myanmar, including amongst families, who often insist on forced heterosexual marriage. DFAT at 1.5 assesses a “Moderate risk of official and societal discrimination against members of the LGBTQ community.”

[19] In addition, while I cannot find any direct information regarding the availability of treatment for transgendered (sic, derogatory) people in Myanmar, the claimant’s testimony, which I accept, suggests that treatment is unregulated and dangerous and can only be accessed by those with the ability to pay for it. In my view, this is consistent with the country information indicating that same-sex conduct is illegal and societal condemnation of sexual orientation, and by extension, sexual identity — and condemnation of anything other than mainstream.

[20] The claimant has indicated that he would not subject himself to such treatment given the safety concerns. In my view, even were he to do so, I find a lack of professional, family, and social supports were he to return to his home country, make the transition particularly arduous. Furthermore, given entrenched societal views, it would be unreasonable to believe that the claimant could lead a life free from discrimination. He would not have access to identification that properly acknowledges his sexual identity, and this would likely impact his ability to work and to access appropriate healthcare. Furthermore, he would not be free to openly express his gender.

[21] In my view, the nature of the discrimination cumulatively amounts to persecution. For these reasons, I find that the claimant has a well-founded fear of persecution should he return to Burma.

[22] Since the agent of persecution regarding anti-Muslim rhetoric is, at least in part, from the military, who continue to have 25 percent of parliamentary seats, control various government portfolios, including the Ministry of Interior Defence and Border, and a veto power — that is found at Item 1.9, page 5⁸ — and from the state in regard to sexual orientation and identity, I find there is no state protection available to the claimant, and he would face the same risk of persecution anywhere in the country. Myanmar has a centralized government and, as I indicated, the same conditions exist throughout the country. For these reasons, I find there is no viable internal flight alternative available to the claimant.

[23] Therefore, after the above reasons, I find on a balance of probabilities, that there is than a mere possibility that the claimant would be persecuted were he to return to Myanmar, or Burma, and his claim is accepted.

[24] Thank you.

1 Chairperson’s Guideline 9: Proceedings Before the IRE Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.

2 Exhibit 3, National Documentation Package (NDP) for Myanmar (Burma), version 30 October 2020, item 12.1.

3 Ibid., item 1.5.

4 Ibid.

5 Ibid.

6 Ibid., item 1 2. 1.

7 Ibid., item 6.1.

8 Ibid., item 1.9.

All Countries India

2021 RLLR 42

Citation: 2021 RLLR 42
Tribunal: Refugee Protection Division
Date of Decision: May 14, 2021
Panel: Alexandre Lussier
Counsel for the Claimant(s): Deepak Pawar
Country: India
RPD Number: MC1-00105
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000089-000092

DECISION

[1] MEMBER: I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. So, these are the reasons for the decision in the claim of XXXX XXXX who claims to be a citizen of India and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] In rendering my reasons, I have considered the Chairperson’s Guideline 9, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[3] You alleged the following. You left India in XXXX 2017 as you were forced to hide your sexuality as a homosexual. You feared societal violence and your family’ s reproval. You came to Canada on a student visa and claimed asylum in XXXX 2019 on the basis of your sexual orientation.

[4] In a recent amendment to your narrative, you claimed that you discovered your gender identity while you were in Canada. You alleged that you are a transgender person. That you had been hiding your true self. If you were to return to India, you fear to be killed or tortured because of your sexual orientation and gender identity.

DECISION

[5] I find that you are a refugee pursuant to section 96 of the IRPA as there exists a serious possibility of persecution should you return to India on account of your gender identity. My reasons are as follows.

Identity

[6] I find that your identity as a national of India is established by the passport provided.

Credibility and Subjective Fear

[7] I note that once in Canada, you delayed for two (2) years before claiming refugee protection. However, you indicated that you came to Canada on a student visa and that you completed your studies. It was upon finishing your studies when you were faced with the obligation to return to India and to your family that you sought information about the possibility to stay in Canada.

[8] This explanation seems reasonable in your alleged circumstances. And therefore, does not raise significant concerns with respect to subjective fear or credibility.

Credibility Other Elements

[9] I find you to be a credible witness and therefore, generally believe what you alleged in support of your claim. You testified in a straightforward manner. And there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me that were not reasonably explained.

[10] You testified about your realization of being a transgender instead of a homosexual in 2019 when you consulted the 519 organization. You testified about the medical treatments you are considering concerning your gender identity. You also testified about your relationship with your family and how they learned of your sexual orientation while you lived in India.

[11] In particular, the following evidence establishes your allegations as set out above. You provided letters from friends in Canada who attest that you are a transgender. You also provided a copy of a membership card of the 519 Community Center for LGBTQ. And pictures of yourself with a boyfriend between 2019 and 2021.

[12] After reviewing the documents, I have no reason to doubt their authenticity. When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true. Unless there are reasons to doubt their truthfulness. This is the principle established in Maldonado.

[13] Although you had a relationship with a boyfriend for a while in Canada and had not alleged it, you explained that you thought that it would be enough to provide pictures as exhibits. I find this explanation reasonable in your circumstances and it does not raise sufficient concerns concerning your credibility.

Objective Basis

[14] The National Documentation on file indicates the following about persecution faced by transgender persons in India. According to Amnesty International at Tab 2.2, many repressive amendments were made into laws such as the Transgender Persons Act. In December 2019 during the winter session of the Parliament, the Transgender Persons Protection of Rights Act was passed.

[15] The Act undermines the rights of transgender and intersex persons and violates India’s international human rights obligations. And the 2014 ruling of the Supreme Court in the case of N-A-L-S-A v. Union of India. Amongst other flaws, the Act lays out vague bureaucratic procedures to be followed for legal gender recognition of the transgender persons.

[16] Human Rights Watch agrees with the statements. Human Rights Watch states at Tab 6.1 of the National Documentation Package that the decriminalization of same-sex conduct will not immediately result in full equality for LGBT people in India. Transgender people in particular including hijra communities face discrimination in employment and housing. Human Rights Watch also notes that transgender people face discrimination in health care.

[17] The United States of America Department of State report on Human Rights for 2020 at Tab 2.1 contains the following quote, “LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas”.

[18] Activists reported that transgender persons continued to face difficulty obtaining medical treatment. Some police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents.

[19] Given that there are no serious credibility issues with respect to your allegations, coupled with the documentary evidence set out before, I find that you have established a perspective risk of being subjected to hostility and outbursts of violence because of your gender identity. As well as cumulative discrimination in work and public services that become tantamount to persecution.

Nature of the Harm

[20] I have examined your claim under section 96 of the IRPA as I conclude that the risk you described constitutes persecution based on at least one (1) of the grounds prescribed in section 96. Specifically, that gender identity has been recognized as a social group of protected Nexus in the Convention.

State Protection

[21] I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances. Objective information on file at Tab 6.1 indicates that the attitudes and behaviour of the police is one of the biggest barriers to queer persons. Access to the justice system in India. Several people spoke to the ICJ about violence, abuse, and harassment they suffered at the hands of the police. Furthermore, in several cases, the police have refused to file complaints submitted by queer persons, owing to bias or stereotypes.

[22] You also testified of an event in 2016 when there was an attempt to kidnap you and the police did not file your first information report.

Internal Flight Alternative

[23] I have examined whether a viable internal flight alternative exists for you. Based on the evidence on file, I find that you face a serious possibility of persecution throughout India as LGBTI groups reportedly face widespread societal discrimination and violence throughout India.

[24] I have considered whether a viable internal flight alternative exists for you. I find that there are no other parts of the country where you would not face a serious possibility of persecution.

CONCLUSION

[25] In light of the preceding, I conclude that you are a refugee pursuant to section 96 of the IRPA. Accordingly, I accept your claim.

———- REASONS CONCLUDED ———-

All Countries Rwanda

2021 RLLR 41

Citation: 2021 RLLR 41
Tribunal: Refugee Protection Division
Date of Decision: June 3, 2021
Panel: Elsa Kelly-Rhéaume
Counsel for the Claimant(s): Melissa Singer
Country: Rwanda
RPD Number: MC0-03009
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000079-000082

DECISION

[1] MEMBER: We are back on the record, it is 11:25 on June 3rd, 2021. The Board has heard the evidence with regards the claim filed by XXXX XXXX and is ready to render its decision from the bench. The claimant alleges she is a citizen of Rwanda and is seeking refugee protection under s. 96 and 97(1) of the Immigration and Refugee Protection Act. For the purpose of the present asylum determination analysis, the Board took into account the Chairperson’s guideline 9, entitled proceedings before the IRB involving sexual orientation, gender identity and expression. At the hearing, the claimant expressed a preference for the use of the pronoun “she”, which is what the Board will use in rendering its decision.

[2] The claimant alleges that she would face persecution if she were to return to Rwanda based on her sexual orientation. More specifically, she alleges that she always felt like a girl in the body of a boy, starting as a young teenager. In XXXX 2018, she met a guy on return to a trip to Uganda, with whom she had had an intimate relationship. On XXXX XXXX XXXX 2019, a family servant caught the two of them in the claimant’s bedroom, and they were subsequently beaten by the claimant’s family. However, they denied that they were in an intimate relationship. For this, the claimant was punished by her family. They took away her phone, limited her outings, but relaxed some of those restrictions when she obtained a visa to study in the United States as they considered that perhaps she would change if she went to study there. So, the claimant’s aunt sent her to study in the US in XXXX of 2019, after several months there, around the month of XXXX, the claimant got a call from her mom, where she was told that they had found nude pictures of the claimant and her former boyfriend in her old laptop, and that the family had called the police, that they had beaten her former boyfriend, and that basically they were so disappointed in her and were rejecting her completely. The claimant was cut off financially after this phone call and has not had any contact with her mother, father, or most of her siblings or her aunt. And the claimant tried to obtain a scholarship to continue her studies in the US, but no scholarship was forthcoming, therefore she decided to come to Canada on XXXX XXXX XXXX 2020, and her asylum claim was deterred three days later to the Refugee Protection Division.

[3] The Board finds, in this case, the claimant has established that she faces a serious possibility of persecution, on the basis of her membership in a particular social group, for being gay, and also for identifying with the gender is not their biological sex at birth.

[4] The claimant’s identity has been established on a balance of probabilities, by a copy of her passport, which was filed with the Board.

[5] With regards to credibility, the claimant was a credible witness, she provided details about growing up and feeling like a girl, being interested in hair and make up and being attracted to boys, contrary to the other boys that were around her. She testified about her relationship with her first boyfriend, XXXX, and how her family reacted when a servant found out that they were a couple. She also described the feelings of shame that she experienced when she realized she was different, since in her community it is considered to be an affront against Rwandan culture to be gay, and that she would potentially be spoiling, her words, people around her, this was the perception in her community. The claimant also described to the Board how her participation in the LGBTQ community centre in Montreal has helped her be more accepting of her own identity, and be more open about it, despite those feelings of shame in that cultural upbringing.

[6] The claimant also provided several documents to support her claim. C-1 is a letter from the LGBTQ+ centre, where they also refer to the claimant as “she” and describe her participation and the activities at the centre. C-2 is a letter from her former partner that she had in Montreal, and C-3 is a copy of an email from her sister who lives in Uganda, who, while expressing a disapproval for her sexual orientation, discussed her attempts to trace XXXX and see what had happened with him.

[7] The claimant’s failure to seek asylum in the United States when she studied there from XXXX 2019 to the end of 2019, is not — is justified by the claimant’s explanation. She said that once her family cut her off finically, her legal status in the US was tied to her status as a student, and she has tried to look into applying for asylum in the US, but when she discovered that there were no or fewer resources such as shelters for people who are awaiting the outcome of their asylum claim, she decided to come to Canada, as she felt that there were more resources available. And thus, no negative inference is drawn by the Board with regards to the claimant’s overall credibility due to this failure to seek asylum in the US, and the Board also notes that as soon as she came to Canada, she did apply for refugee protection.

[8] There is also an objective basis for the future risk that the claimant faces if she were to return to Rwanda. The document evidence that is found in the national documentation package does support the claimant’s allegations and the fact that she would face a serious possibility of persecution upon return to Rwanda. Now, it must be said that the evidence can be contradictory with regards to the treatment of members of the LGBTQ community in Rwanda, and like many neighbouring countries, same-sex relations are not prohibited by law in Rwanda. However, there was an attempt to legislate in that manner in 2009, and homosexuality remains highly stigmatized within society. Tab 6.2 states that members of the LGBT community can suffer violence, discrimination, and harassment in general because of the cultural and religious beliefs which are highly intolerant of homosexuality. Homosexuality is viewed as disease coming from the west, and as an immoral thing. And it is very rare in Rwanda to encounter people who are openly gay and who are able to live their identity freely, because being openly gay will normally cause total isolation and cause gay people to be rejected by their family and their friends, and the claimant’s testimony is in line with that reality, where she was rejected by her family upon them learning of her sexual orientation.

[9] Furthermore, tab 6.1 states that gay people in Rwanda will suffer discrimination in trying to get a job, in trying to get access to housing, because they can be evicted by landlords, or families will kick gay people out of the households where they have always lived. And so, the fact that gay people in Rwanda will face human rights violations with regards to their basic, fundamental rights, such as housing, lodging, on a systemic basis and a systematic basis for the Board amounts to persecution. So, in light of the way members of the LGBTQ community are treated in Rwanda as stated in this documentary evidence, and in light of the claimant’s past experience within her family where she was beaten for being in a relationship with another young man, she has established on a balance of probabilities that she faces a future risk of illegal detention, suffering violence, or persecution, if she were to be open about her sexual orientation in Rwanda.

[10] With regards to state protection, the Board finds that there is clear and convincing that the state is unable or unwilling to provide the claimant with adequate protection. 6.2 of the national documentation package states that it is possible to ask for state protection, but whether that protection will be forthcoming will depend on the individual who receives the complaint, and their own personal beliefs. Tab 6.1 has stated that while there are some ethical police officers who will help people from LGBTQ community, they can also be arrested on behalf of lies that the arrestees were stealing, or were causing insecurity, or that the LGBT community is the root cause of several social ills. So, in large numbers, police officers do not want to hear about the existence about the LGBTQ community, and that is true also within the judicial system. Furthermore, tab 6.1 states that the police can arrest and illegally detain gay people for indefinite time based on morality laws, and there are very few cases brought before the courts for cases of violence against people from the LGBT community. So, in light of this evidence, there is not adequate protection that can be provided to the claimant, were she to return to Rwanda, and she has rebutted the presumption of state protection.

[11] Finally, the Board analyzed whether the claimant could possibly relocate safely within her country of origin. However, the sentiment with regards to homosexuality is the same, all throughout the country, and as the Board has found that there is no adequate state protection available to members of the LGBTQ community if one is attacked or suffers discrimination or persecution due to their sexual orientation, the Board finds that the claimant would thus face a serious possibility of persecution anywhere in the country, and there is thus no viable internal flight alternative available to the claimant.

[12] In conclusion, the Board has analyzed evidence as a whole, and finds that the claimant has discharged her burden of establishing a serious possibility of persecution based on one of the grounds set out in s. 96 of the Immigration and Refugee Protection Act, and the claim is therefore accepted. This is the end of my decision.

———-REASONS CONCLUDED———-

All Countries Colombia

2021 RLLR 40

Citation: 2021 RLLR 40
Tribunal: Refugee Protection Division
Date of Decision: November 3, 2021
Panel: Catherine Solyom
Counsel for the Claimant(s): Robin Dejardin
Country: Colombia
RPD Number: MB9-19195
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000055-000063

REASONS FOR DECISION

INTRODUCTION

Introduction

[1] These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX, who declares himself to be a citizen of Colombia, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the Act.

Allegations

[3] The claimant, a 26-year-old citizen of Colombia, alleges that he is queer, and wants to undertake gender reassignment surgery. Because of his sexual orientation and gender identity, as well as his advocacy for the LGBTI community, he was targeted by the Gulf Clan, the country’s largest criminal organization, as well as by unknown members of the community.

[4] In 2017, he was sexually assaulted by a group of men because he was public about his sexual orientation on Facebook.

[5] Then in 2019, while working for the LGBTI Social Alliance of Antioquia, in Medellin, he was targeted by the Gulf Clan because he counseled transexuals and other members of the community not to give in to threats of extortion by the Gulf Clan and to report these threats to the police.

[6] On XXXX XXXX XXXX 2019, after a tour of the city centre to commemorate the 50 years of the XXXX XXXX XXXX – the riots outside a gay bar in New York City that marked the beginning of the gay rights movement in 1969 – an armed man accosted him on his way home and threatened to kill him if he did not stop his work with the LGBTI Social Alliance. The aggressor also told him if he wished to continue working as a prostitute in the neighbourhood – which he did occasionally – he would have to pay a portion of this earnings to the Gulf Clan.

[7] On XXXX XXXX XXXX 2019, after representing the LGBTI group on a float in the gay pride parade in Medellin, the claimant was threatened again by an armed man who said he knew where he worked and where he spent his free time, as well as where he lived, with his mother and his dog. The claimant also received threatening messages on Facebook and Grindr, a dating app.

[8] Two weeks later, on XXXX XXXX XXXX 2019, the claimant flew to the United States. The next day he crossed the border into Canada and claimed asylum.

Decision

[9] The Tribunal finds that the claimant is a refugee, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should he return to Colombia, on account of his membership in a particular social group, specifically gay and transgender people in Colombia. The reasons are as follows.

Identity

[10] The Tribunal finds that the identity of the claimant as a national of Colombia is established by the documents provided, notably his passport.

Credibility

[11] Based on the documents in the file, the Tribunal has noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above.

[12] Medical reports dated XXXX XXXX and XXXX XXXX 2017, corroborate the allegation that the claimant was drugged and assaulted on XXXX XXXX XXXX 2017 (Exhibit C-1 and C- 3).

[13] Photographs of the claimant at training and public events corroborate the allegations that he volunteered with the LGBTI Social Alliance of Antioquia and took part in events to mark the 50th anniversary of the XXXX XXXX XXXX riots. Other photos of the claimant at a Drag Queen contest and at the Gay pride parade in 2019 also corroborate the allegation that he is queer himself and was an advocate for the community (Exhibits C-10 to C-13).

[14] Facebook posts denouncing violence against the LGBTI community after the murder of a transgender woman corroborate the allegation that the claimant spoke out publicly on behalf of the LGBTI community (Exhibit C-6). Threats receives online after those posts, as well as threats on a dating app, corroborate the allegation that the claimant was targeted because of his public advocacy for the LGBTI community (Exhibit C-15).

[15] This is also confirmed by the submission of a survey given to participants at the 2019 pride parade in Medellin, by the social alliance (Exhibit C-14). This exhibit includes a photograph of the claimant marching at the front of the parade, which appeared in a Colombian newspaper.

[16] A police complaint dated XXXX XXXX XXXX 2019, corroborates the allegation that the claimant sought police protection following the threats he received after the gay pride parade on XXXX XXXX XXXX 2019, and threats he received online, as an advocate with the LGBTI Social Alliance. It also confirms that the local police response was that it was not in their jurisdiction to act on this complaint (Exhibit C-16).

[17] A second complaint, filed with police XXXX XXXX XXXX 2019, also details the incidents in question, and the claimant’s fears and reasons to suspect that the Gulf Clan is behind the threats in person and on social media. The police response is to advise the claimant to hire a private investigator to find out exactly who made the threats (Exhibit C-16).

[18] A letter of support by the Montreal LGBTQ+ Community Centre affirms that the claimant has been an active member of the centre since XXXX 2020, and took part in activities and discussions with the centre even before becoming a member (Exhibit C-18).

[19] After reviewing the documents, The Tribunal has no reason to doubt their authenticity.

Objective basis

[20] Given that there are no serious credibility issues with respect to allegations of the claimant, and in light of the documentary evidence set out below, the Tribunal finds that the claimant has established a prospective risk of being assaulted or killed by the Gulf Clan, or other armed groups because of his sexual orientation, and because of his work as a social leader and advocate for the LGBTI community.

[21] This risk is corroborated by the following documents in the National Documentation Package for Colombia, August 31, 2021 version, at tabs 2.1, 2.17, 2.18, 2.19, 6.3, 6.5, 7.13, 7.21, and 7.28.

[22] Colombia decriminalized same-sex sexual relations in 1981 and has laws and recent court decisions prohibiting discrimination based on sexual orientation or gender identity.

[23] However, sources have indicated that a “significant proportion” of the Colombian population still has prejudices against LGBTI people and there were reports of sexual assaults against members of the community.

[24] According to a report by Colombia Diversa in 2018, 110 persons belonging to sexual and gender minorities were murdered in 2017, while in 2018, 109 individuals were killed. At least 33 percent of these murders and around 34 percent of threats were motivated by the victim’s sexual orientation or gender identity.

[25] Antioquia, where the claimant lived, was the department with the highest number of incidents of violence against sexual and gender minorities in 2018, and the highest number of assassinations that year (23 victims).

[26] Armed groups, like the Gulf Clan, were behind many of the homicides and threats toward LGBTI persons. According to the Colombia Diversa report from May 2020, this kind of violence is used as a “war strategy” and to exercise social control in an area. Between 2014 and 2019, armed groups had issued 75 threats against people belonging to sexual and gender minorities.

[27] The Gulf Clan, responsible for the threats made against the claimant, is said to be the largest and most powerful of the paramilitary groups in Colombia. It is also described as a major drug trafficking group and the largest criminal organization in Colombia.

[28] At the same time, LGBTI people were also at risk of violence by the police. Between 2014 and 2019, there were 431 incidents of police violence against sexual and gender minorities, including 87 in 2018.

[29] While a majority of the members of the community said they did not experience discrimination in their workplaces, this was not true for transgender persons, 40 per cent of which were unemployed because of discrimination in hiring practices.

[30] The claimant would not have been affected by this while he was in Colombia. However, given his stated desire to transition to a different gender, he would face this risk of discrimination as well if he were to return to Colombia and express his gender identity.

[31] There is also a wealth of objective evidence pertaining to the risks of persecution in Colombia facing social leaders and human rights defenders.

[32] According to the U.S. State Department’s Human Rights Report for 2020, several illegal armed groups perpetrated human rights abuses and violent crimes, including murders, kidnapping, torture and threats against journalists, women, human rights defenders and social leaders.

[33] In the first six months of 2020 alone, there were 13 kidnappings of human rights and social leaders.

[34] Citing statistics from the Office of the United Nations High Commissioner for Human Rights, the same report stated that between January 2016 and August 2020 more than 400 human rights defenders were killed.

[35] According to the Inter-American Commission on Human Rights, since 2017, when Colombia recorded its lowest overall homicide rate in the last 30 years, there has been a significant and alarming increase in the number of murders of human rights defenders and social leaders in the country- including a 13% increase in the number of human rights defenders killed from 2018 to 2019.

[36] LGBTI human rights defenders, like the claimant, are in a particularly dangerous situation, the Commission noted, as they are targeted both because of their efforts to defend people who are victims of discrimination and because of their own sexual orientation or gender identity.

[37] With respect to who is responsible for the killings, according to the Office of the Attorney General of Colombia, in a 2018 report, the main perpetrators are, by order of responsibility, individuals, local criminal organizations, the Gulf Clan, and Revolutionary Armed Forces of Colombia (FARC) dissidents and the National Liberation Army.

[38] Civil society organizations point out the difficulty of identifying those allegedly responsible for these crimes. However, many concur in identifying illegal armed groups, first and foremost the Gulf Clan, as the main source of violence.

[39] In this context, and having examined this claim under section 96 of the IRPA, the Tribunal concludes that the risk the claimant faces constitutes persecution based on at least one of the grounds prescribed in the Refugee Convention, specifically his membership in a particular social group – members of the LGBTI community in Colombia – and his political opinion, as a human rights defender working with that community.

State Protection

[40] The Tribunal finds that there is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection, either as a member of the LGBTI community, or as a social leader and human rights defender.

[41] According to several sources, LGBT persons’ rights were included in the 2016 peace agreement with the Revolutionary Armed Forces of Colombia (FARC) and they are recognized as a specific category of victims of the armed conflict in the agreement.

[42] Furthermore, according to information provided by the State, in 2020, 3,686 human rights defenders and social leaders did receive protection through the National Protection Unit (UNP), equivalent to roughly half of the total number of people protected by the UNP.

[43] On the other hand, civil society organizations note that there has hardly been any development of protection measures for LGBTI members by the State since 2016, despite the promises of the accord. And they characterized the protection measures for human rights defenders as “soft”, even in areas with serious security situations, and therefore ineffectual.

[44] Furthermore, as mentioned above, the police themselves are the instigators of violence against the LGBTI community – for example they were responsible for 87 cases of violence against members of the LGBTI community in 2018. As such there is a reluctance by members of that community to seek police protection for fear that they may be re-victimized.

[45] The claimant states and has provided documentary evidence that he sought police protection from the Gulf Clan on two occasions. The first time, in XXXX 2019, he was told by police that it was not in their jurisdiction to investigate the threats he received at the Gay Pride march. The second time, in XXXX 2019, he was told that a police investigation could only begin once the claimant identified a specific person responsible for the threats within the Gulf Clan. The police suggested he hire a private investigator.

[46] Given the objective evidence and the personal experience of the claimant, the Tribunal finds he can not rely on police protection from the threats he received or could face, should he return to Colombia.

Internal Flight Alternative

[47] The Tribunal has also examined whether a viable internal flight alternative exists for the claimant.

[48] According to several sources, the Gulf Clan, who the claimant believes was responsible for the threats levelled against him, has control over the entire territory of Colombia and most of its ports. In 2017, the Colombian government estimated that it had some 2,000 members, who were particularly concentrated in Colombia’s northern region, especially in the Pacific departments of Antioquia, Choco and Cordoba.

[49] While the National Documentation Package for Colombia does not provide specific information on the Gulf Clan’s ability to track individuals to other parts of the country, it does reveal that the Gulf Clan, on top of being the largest and most widespread of the illegal armed groups, also has allies both within and outside of Colombia.

[50] The documentary evidence also shows that members of the LGBTI community, human rights defenders and social leaders are particularly vulnerable to threats and illegal groups, not to mention violence and discrimination, in rural areas and smaller cities.

[51] Based on the evidence on file, the Tribunal finds that the claimant faces a serious possibility of persecution throughout Colombia.

CONCLUSION

[52] The Tribunal concludes that the claimant is a Convention refugee, pursuant to section 96 of the IRPA, and accepts his claim.

(signed) Catherine Solyom

November 3, 2021

All Countries El Salvador

2021 RLLR 39

Citation: 2021 RLLR 39
Tribunal: Refugee Protection Division
Date of Decision: February 19, 2021
Panel: Heidy Melissa Arango
Counsel for the Claimant(s): Mabel E. Fraser
Country: El Salvador
RPD Number: MB7-23221
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000034-000040

REASONS FOR DECISION

INTRODUCTION

[1] The claimant, XXXX XXXX XXXX XXXX (also known as XXXX), is a citizen of El Salvador. She¹ claims refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).²

ALLEGATIONS

[2] The claimant fears to be killed by the members of gangs if she returns to El Salvador.

[3] On XXXX XXXX XXXX 2017, the claimant was kidnaped by members of the Mara Salvatrucha (MS-13). While abducted, she was mistreated and tortured by members of the MS-13. They threatened to kill her unless her mother paid a ransom.

[4] The claimant alleges she was kidnaped because she is a transsexual person and because the gang members knew her mother works for the supreme court of justice.

[5] On XXXX XXXX XXXX 2017, the claimant left El Salvador and she entered Canada with a visitor’s visa.

[6] She claimed refugee status around November 21, 2017.

[7] Being a transgender, transsexual person, the claimant fears to be persecuted due to her gender identity should she return to El Salvador.

DETERMINATION

[8] The tribunal finds that the claimant is a Convention refugee for the following reasons.

ANALYSIS

[9] In assessing this claim, the tribunal considered the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.³

Identity

[10] The tribunal is satisfied with the identity of the claimant, which was established by a copy of her passport on file.⁴

[11] The tribunal notes that claimant chose to identify herself as a man when filling her Basis of Claim Form (BOC)⁵. The tribunal suspects that this was to keep in conformity with her passport. Nevertheless, the claimant provided documents from medical professionals regarding her medical transition from male to female. The tribunal is satisfied that the claimant is indeed transgender, transsexual.

Credibility

[12] The tribunal considers the claimant’s allegations in her BOC to be credible. The tribunal considered all the documentary evidence on file and found no significant contradictions or inconsistencies that would undermine the claimant’s credibility.

[13] As to the claimant’s gender identity, the claimant provided numerous documents to corroborate her claim. These include documents from medical professionals indicating that she is transgender.⁶

[14] In support of her claim, the claimant provided a letter from her psychiatrist indicating that she initiated hormonal therapy.⁷ The psychiatrist confirms that, after evaluating the claimant, he determined that she was a person with a transsexual gender identity.⁸

[15] The claimant also submitted a letter from her XXXX that indicates that during 20 sessions of XXXX with the claimant, which began on XXXX XXXX XXXX 2018, she has observed XXXX XXXX XXXX XXXX associated with XXXX XXXX and the traumatic events experienced by the claimant in her country of origin.⁹

[16] The claimant submitted a letter from her family physician who confirms that he has assisted her to medically transition from male to female.¹⁰

[17] Additionally, the claimant provided a police report that confirms that she was kidnapped by gang members on XXXX XXXX XXXX 2017.¹¹

[18] The claimant provided a photo of herself to corroborate her transition from male to female.¹²

[19] All this is consistent with the claimant’s allegations as stated in her BOC. In light of the documentary evidence submitted, there is no doubt that the claimant is a transsexual person.

[20] Therefore, the tribunal finds the main allegations at the heart of this claim to be credible.

[21] Moreover, the objective documentation supports the claimant’s allegations that individuals in her circumstances face persecution due to their gender identity.

[22] The claimant also submitted different news articles regarding the situation of sexual minorities and violence against LGBT persons in El Salvador.¹³

[23] According to the most recent US Department of State Country Reports¹⁴, there is widespread discrimination and violence against lesbian, gay, bisexual, and transgender persons, even though the law prohibits discrimination on the basis of sexual orientation.

[24] According to Amnesty International, LGBTI persons in the Northern Triangle of Central America “are frequently the target of different forms of violence due to their real or perceived sexual orientation and/or gender identity, such as, for example, intimidation, threats, physical aggression, sexual violence and even murder”.¹⁵

[25] Another report by Amnesty International indicates that trans women, who are particularly stigmatized because of patriarchal social norms, are especially subjected to violence and extortion by gangs and often face greater obstacles to accessing justice due to discrimination.¹⁶Furthermore, since the eruption of the COVID-19 pandemic in March 2020, the situation has definitely deteriorated and the measures taken by the government have put many trans women in an extremely vulnerable position.¹⁷

[26] After considering the documentary evidence submitted, the tribunal concludes the claimant has established a reasonable fear of persecution if she returns to El Salvador.

State Protection

[27] The tribunal finds that adequate state protection would not be available to the claimant in El Salvador.

[28] The objective documentary evidence indicates that the authorities also engage in violence and discrimination against LGBTI people¹⁸:

NGOs reported that public officials, including police, engaged in violence and discrimination against sexual minorities. Persons from the LGBTI community stated that the PNC and the Attorney General’s Office harassed transgender and gay individuals when they reported cases of violence against LGBTI persons, including by conducting unnecessary and invasive strip searches.

[29] Furthermore, impunity persisted despite government steps to dismiss and prosecute abusers in the security forces, executive branch, and justice system.¹⁹

[30] In fact, many LGBTI people prefer not to report to the authorities the attacks they suffer and the few people who dare go to the authorities to report a crime “are frequently re-victimized or treated with disdain, indifference and discrimination due to their gender identity and/or expression, and so they rarely follow their case up and even, sometimes, withdraw it”.²⁰

[31] The tribunal notes that the claimant did seek protection from the authorities in XXXX 2017, after she was kidnaped, but there was no further action from the authorities.

[32] Based on the claimant’s personal circumstances, specifically a transgender person, as well as the objective country documentation, the tribunal finds that the claimant has rebutted the presumption of state protection.

Internal Flight Alternative (IFA)

[33] The tribunal also considered whether the claimant could reasonably and safely relocate to another city in El Salvador. The tribunal is of the opinion that the claimant does not have a viable IFA in El Salvador.

[34] It appears from the objective documentary evidence mentioned above that the situation of sexual minorities in El Salvador is the same throughout the country.

[35] Given the claimant’s profile, a transsexual person who has transitioned from male to female, and also considering that gangs are present all over the country, the tribunal concludes that the claimant faces a reasonable possibility of persecution throughout El Salvador.

[36] Therefore, there is no viable IFA in the claimant’s particular circumstances.

CONCLUSION

[37] For these reasons, the tribunal finds that XXXX XXXX XXXX XXXX (also known as XXXX) is a “Convention refugee” pursuant to section 96 of the IRPA.

[38] Therefore, the tribunal accepts her claim.

(signed) Heidy Melissa Arango

19 February 2021

¹ The claimant is identified as male in her passport but self-identifies as female according to her allegations. The feminine has been used in this decision.

2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.

³ Chairperson’s Guideline 9 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017

⁴ Document 1 — Package of information from the referring Canada Border Services Agency (CBSA)/Immigration, Refugees and Citizenship Canada (IRCC): Copy of the claimant’s passport.

⁵ Document 2 – Basis of Claim Form (BOC)

⁶ Document 4 – Exhibits P- 10 to P-15

⁷ Document 4 – Exhibit P-10: Letter from XXXX XXXX XXXX XXXX XXXX, dated XXXX XXXX, 2017.

⁸ Ibid.

⁹ Document 4 – Exhibit P-12: Letter from XXXX XXXX XXXX, dated XXXX, 2019.

¹⁰ Document 4 – Exhibit P-15: Letter from family physician. XXXX XXXX XXXX XXXX.

¹¹ Document 4 – Exhibit P-9: Report to the Office of the Attorney General of the Republic, dated XXXX XXXX 2017.

¹² Document 4 – Exhibit P-22: Photo of the claimant.

¹³ Document 4 – Exhibit P-16 to P-18

¹⁴ Document 3 – National Documentation Package on El Salvador, November 30, 2020 (NDP El Salvador), Tab 2.1: El Salvador. Country Reports on Human Rights Practices for 2019, United States Department of State, March 11, 2020.

¹⁵ Document 3 – NDP El Salvador, Tab 6.1: ‘No Safe Place’: Salvadorans, Guatemalans and Hondurans Seeking Asylum in Mexico Based on Their Sexual Orientation and/or Gender Identity, Amnesty International, November 27, 2017.

¹⁶ Document 3 – NDP El Salvador, Tab 6.4: For many trans women, living in El Salvador is a death sentence.

Coronavirus is making it even worse, Amnesty International, 6 November 2020.

¹⁷ Ibid.

¹⁸ Supra, note 14.

¹⁹ Ibid.

²⁰ Supra, note 15.

All Countries India

2021 RLLR 38

Citation: 2021 RLLR 38
Tribunal: Refugee Protection Division
Date of Decision: December 15, 2021
Panel: Ayo Adetuberu
Counsel for the Claimant(s): Luciano G. Del Negro
Country: India
RPD Number: TC1-12301
Associated RPD Number(s): TC1-12302
ATIP Number: A-2022-00978
ATIP Pages: 000018-000026

REASONS FOR DECISION

INTRODUCTION

[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX (principal claimant) and XXXX XXXX XXXXX (minor claimant), citizens of India, who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”)¹.

ALLEGATIONS

[2] The specifics of these claims are stated in the narratives of the claimants’ Basis of Claim (BOC) form.² In summary, the claimants allege that they cannot return to India because they fear being persecuted by the police based on their membership of a particular social group namely: family ties with XXXX XXXX – an XXXX involved in XXXX XXXX XXXX XXXX.

[3] The principal claimant is XXXX XXXX XXXX. The police were allegedly seeking to arrest XXXX who hid in the claimants’ house before he left India on XXXX 2019. The suspicion that the claimants hid XXXX in their house resulted in police harassment against the claimants.

[4] On one of the raids by the police on XXXX 2019, the principal claimant was beaten, arrested, and sexually assaulted by the police after they discovered that she was in communication with XXXX. Subsequently, the principal claimant left India for Canada on XXXX 2019. After the principal claimant’s departure, the police raided the claimants house and harassed the minor claimant. The minor claimant was brought to Canada by his father on XXXX 2019, and together the principal and minor claimant made a refugee claim on October 17, 2019.

[5] In rendering the decision and reasons, the panel considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution³ to ensure that appropriate accommodations were made in questioning the principal claimant, in the overall hearing process, and in substantively assessing the claims.

DETERMINATION

[6] After considering the claimants’ testimony and the documentary evidence, the panel finds that the claimants are “Convention refugees” based on their membership of a particular social group: family ties with XXXX XXXX – an XXXX involved in XXXX XXXX XXXX XXXX.

ANALYSIS

Identity

[7] The panel finds that the claimants’ identities as nationals of India are established on a balance of probabilities by the copies of their Indian passports⁴.

Credibility

[8] Testimony provided under oath is presumed to be truthful unless there is a valid reason for doubting its truthfulness.⁵

[9] In assessing the credibility of the evidence presented by the claimants, the panel accepts the allegations in the claim on a balance of probabilities. The claimants’ testimony was consistent, spontaneous, and was generally supported by personal documentary evidence. As such, the panel finds that the claimants have established the following facts on a balance of probability.

That XXXX is involved in XXXX XXXX XXXX XXXX based on the principle claimant’s testimony that he XXXX XXXX in the community.
That XXXX’s political stand forms the basis of police assault and harassment against the claimants.
That the police arrested and sexually assaulted the principal claimant on XXXX 2019, and as a result she sought medical attention at XXXX XXXX under the care of Dr. XXXX.
That the principal claimant and her husband are separated due to the ongoing issues with the police in India and the principal claimant’s testimony that their last communication was about two years ago.
That the police harassment has not only made the principal claimant fearful but also affected the mental state of the minor claimant.

[10] The panel further notes that the claimant’s allegations are supported by personal documentary evidence which establish that the claimants face persecution because of their membership of a particular social group: family.

[11] The panel finds no reason to doubt the authenticity of the documentary evidence that the claimants disclosed. The panel finds that the evidence supports and corroborates the claimants’ allegations and accords them full weight in establishing the basis of persecution, attacks and sexual assault against the claimants, and the forward-facing risk the claimants face should they return to India. Specifically, the panel referred to the following documents:

An affidavit dated 29-11-2021, by XXXX XXXX, the village sarpanch corroborating the basis of persecution, subsequent attacks and forward facing risk the claimants face should they return to India;⁶
An affidavit dated 01-12-2021, from the principal claimant’s parents, XXXX XXXX and XXXX XXXX corroborating the basis of harassment by the police, subsequent assaults, and the condition of affairs between the principal claimant and her husband⁷;
A copy of the doctor’s note from XXXX XXXX XXXX dated 30-11- 2021, by Dr. XXXX regarding the minor claimant’s diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX and the medication currently being administered⁸; and a copy of the note from the minor claimant’s school counsellor, XXXX about the minor claimant’s traumatic experience for the school year 2020-2021⁹ corroborates the principal claimant’s testimony about the impact of the police harassment in India on the minor claimant.

Well-Founded Fear of Persecution

[12] Item 12.4 of the NDP¹⁰ reports that Sikhs account for approximately 2% of the population in India. The report further states that communities that “advocate for and support a separate Sikh state or Khalistan” or challenge the power of the state government in religious matters, activists against Sikhs who are suspected of being “militant sympathizers” are “subject to monitoring and in some cases, detention and torture”. Objective country evidence further reveals that the status of women in India is not equal to that of men, and that gender-based violence is prevalent across India. ¹¹

[13] Item 1.5 of the NDP¹² further reports that the ease with which an individual can relocate internally depends to a large degree on their individual circumstances, including whether they have family or community connections in the intended area of relocation, and their financial situation. According to the report, internal relocation is generally easier for men and family groups as local sources advised relocation would generally be possible for a single woman without children, who was able to access accommodation and support networks, or who was educated, skilled or wealthy enough to support herself.

[14] The panel finds that the principal claimant testimony about the difficulty she will experience in renting as a single woman, her language and work skills, her responsibility to her son, and her age effectively described the difficulties experienced by persons perceived to supporters of Khalistan. The principal claimant’s testimony also confirms the experience of women in India based on their gender and has convincingly described her fears for future persecution because she is a woman.

[15] The principal claimant’s subjective fear for her safety in India because she is a woman is supported by objective country evidence, which shows that similarly situated women in India are likely to be faced with serious threats such as rape, domestic violence, dowry related deaths and honour killings.¹³

[16] The panel finds that the claimants have demonstrated, on a balance of probabilities, that they have a subjective fear of persecution in India that is objectively well founded.

State Protection

[17] The panel finds that the claimants have rebutted the presumption of state protection with clear and convincing evidence that such protection is not available to them. This includes the principal claimant’s testimony that the state is the agent of persecution, and her sexual assault experience at the hands of the police. The panel finds that the principal claimant’s reluctance to seek police protection was reasonable in her circumstances.

[18] The panel therefore finds that, based on a balance of probabilities, state protection is not available to the claimants.

Internal Flight Alternative

[19] IFA analysis is a two-prong approach.¹⁴ In considering the identified IFAs, the panel is mindful that the Federal Court of Appeal has set a high threshold for the second prong of the IFA test in that “it requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant”.¹⁵ The jurisprudence is clear that the personal circumstances of the claimant must be central to the reasonableness analysis.¹⁶ The central question in the second prong of the test is whether expecting the claimants to relocate to the proposed IFA locations would be “unduly harsh”.¹⁷

[20] The claimants bear the burden of proof. In this case, the panel has proposed IFAs in Mumbai or Rajasthan, India.

[21] When asked if there was any reason, apart from the alleged agents of persecution, that she could not travel to and live in Mumbai or Rajasthan, the principal claimant testified that without a man in her life, she could not move to or live in the proposed IFAs. She testified that as a single woman, no one would rent her a place to live, because single women do not live on their own.

[22] The principal claimant also testified that although she works in a XXXX in Canada, she has never worked in India, and would not be able to get a job without connections or the support of a man. She further testified that because of her separation from her husband, she has no one in India who would support or help her. The minor claimant who would have been able to support the principal claimant has also been diagnosed of XXXX XXXX XXXX XXXX XXXX XXXX which makes it difficult for him to focus on school.

[23] The principal claimant testified that because they would not be able to find or afford housing in either of the IFAs, she would be forced to live on the street, which could subject her to sexual abuse at the hands of men.

[24] Objective country evidence shows that single women in India need to depend on the goodwill of others to provide for them.¹⁸ This same evidence indicates that landlords do not want to rent to a single woman, as they are expected to live with a male relative. Other country evidence shows that domestic violence, which includes control, isolation, threats, and coercion, greatly increases the chances of an Indian woman becoming homeless, and that violence against homeless women in India is rampant.¹⁹

[25] Based upon the claimants’ testimony and the objective country documentation, the panel finds that it is not reasonable for the claimants to seek refuge in Mumbai or Rajasthan. The principal claimant has no work experience in India. She is a victim of sexual assault by the police who are the people meant to protect her, her education level is low, she does not speak Hindi which is spoken at the IFA locations, and she has no employable skills to support herself in the IFA locations. She is currently separated from her husband and would have no family or friend support in any of the proposed IFAs to assist her with employment or housing. In addition, the principal claimant is responsible for the minor claimant who is undergoing XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[26] In considering all of the circumstances that are particular to the claimants, the panel finds that they would not be able to successfully establish herself in India. The panel is also mindful of the Chairperson’s Guideline 9, Women Refugee Claimants Fearing Gender-Related Persecution, and the fact that expecting the claimants to relocate to an IFA, given their particular circumstance, would subject them to a risk of homelessness, and related sexual violence and other forms of violence addressed in the referred guideline. This would make the claimants’ relocation to one of the proposed IFAs unduly harsh.

[27] Because the panel has found that relocating to one of the proposed IFAs would be unduly harsh for the claimants, there is no need to analyze the first prong of the IFA test. The panel finds that, based on a balance of probabilities, the claimants do not have a viable IFA in India.

CONCLUSION

[28] Having considered all the evidence, including the claimants’ testimony, the panel finds that the claimants face a serious possibility of persecution in India as members of a particular social group, fearing persecution due to their membership in a family.

[29] Therefore, the panel finds that the claimants are “Convention refugees” pursuant to section 96 of the IRPA.

[30] The panel accepts their refugee claim.

(signed) Ayo Adetuberu

December 15, 2021

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, section 96 and 97(1) [IRPA].

2 Exhibit 2, Basis of Claim Form (BOC)

3 Immigration and Refugee Board of Canada (IRB) Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB. December 2012

4 Supra note 2

5 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).

6 Exhibit 5 – Disclosure Documents received on December 2, 2021, item Cl

7 Ibid., item C3-C6

8 Ibid., item C7

9 Ibid., item CS

10 Exhibit 3 National Documentation Package (NDP), India, 30 June 2021, tab 12.4

11 Ibid., item 5.2

12 Ibid., item 1.5

13 Ibid., item tab 5.6

14 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).

15 Ranganathan v. Canada (MCI), 2000 CanLII 16789, at para 14.

16 Supra, note 8.

17 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

18 Exhibit 3 NDP for India, 30 June 2021, item 5.11

19 Ibid., item 5.2

All Countries Turkey

2021 RLLR 9

Citation: 2021 RLLR 9
Tribunal: Refugee Protection Division
Date of Decision: December 9, 2021
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Marianna Jasper
Country: Turkey
RPD Number: VC1-05783
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000019-000026

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision in the claim of XXXX XXXX XXXX (the “claimant”), who is a citizen of Turkey, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).ⁱ

[2] In rendering my reasons, I have considered the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[3] The following is a brief synopsis of the allegations put forth by the claimant in her Basis of Claim (BOC) form.ⁱⁱ She fears persecution at the hands of society and authorities in Turkey due to her gender identity.

[4] The claimant is a XXXX-year-old woman, who was born a male. Since early childhood, she would dress up and behave like girls and was bullied by other boys in school due to this. Tired of harassment, the claimant went to Germany in 2013, where she lived with her uncles and explored surgeries for transformation of her gender from male to female. In order to ease off the pressure of getting married to a female of her family’s choosing, the claimant married her female friend in Germany. After the German authorities determined that the claimant’s marriage with her friend was fake (of convenience), she was forced to return to Turkey as she could no longer stay in Germany. Her marriage to her friend was dissolved by the Turkish authorities after the claimant completed a series of gender reassignment surgeries in 2014 and got herself registered as a female. The claimant participated in rallies for the rights of LGBTQ community in Turkey and was detained by the authorities on two occasions in 2015 and 2016.

[5] She travelled to Sweden and claimed refugee protection, which was denied by Swedish authorities as they ruled that she would be safe living in Turkey. The claimant returned to Turkey in 2017 and continued to live in Istanbul. She started getting threats from her extended family, who told her parents that she is bringing shame and dishonour to the family, and that she has to exit Turkey. Her uncle threatened to throw acid on her and make Turkey an unlivable place for the claimant. Fearing for her life, the claimant travelled to the United States (US) on XXXX XXXX XXXX 2019 and crossed over to Canada, where she filed for refugee protection.

DETERMINATION

[6] I find that the claimant is a Convention refugee as she has established a serious possibility of persecution on account of her membership in a particular social group for the following reasons.

ANALYSIS

Identity

[7] I find that the claimant’s identity as a national of Turkey is established, on a balance of probabilities, based on a certified copy of her Turkish passport on file.ⁱⁱⁱ

Credibility

[8] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness. (Maldonado [1980]

2.F.C. 302 (C.A.))

[9] The claimant testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me which have not been satisfactorily explained. Apart from her oral testimony, the claimant has provided corroborating documentary evidence^iv to support her claim. I have no reason to doubt the genuineness of these documents and accept them as genuine. Amongst others, the documents contain proof of claimant’s marriage in Germany with her friend and dissolution of the same by the Turkish authorities, proof of her gender reassignment surgery through an order of the courts in Turkey, threat note from the claimant’s uncle in Turkey, and support letter from claimant’s mother.

[10] Based on the claimant’s straightforward testimony and the corroborating documentary evidence, I find her to be a credible witness and accept her allegations to be true on a balance of probabilities. In particular, on a balance of probabilities, I accept that the claimant was borna male and underwent gender reassignment surgery to a female, and that she has a subjective fear of returning to Turkey as alleged.

Nexus

[11] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion. The persecution that the claimant faces in this case is due to her gender identity after the gender reassignment surgery she went through from male to female. I find that she has established nexus to a Convention ground – membership in a particular social group; namely a claimant fearing persecution due to her decision to convert from male to female. As such, her claim is being assessed under section 96 of IRPA and not under section 97.

Well-Founded Fear of Persecution and Risk of Harm

[12] To establish her status as a Convention refugee, the claimant had to show that there was a serious possibility that she would be persecuted if removed to Turkey.

[13] I find that the objective evidence supports her subjective fears and establishes a serious possibility of persecution for the claimant if she is forced to return to her country. My reasons are as follows.

[14] The US State Department 2016 Human Rights Practices Report noted that:

‘Minority groups, including …lesbian, gay, bisexual, transgender, intersex (LGBTJ) individuals, continued to face threats, discrimination, and violence and reported that the government took insufficient steps to protect them. Progovernment media used anti-LGBTI …rhetoric.^v

[15] The Department of Foreign Affairs and Trade (DFAT), Australia reports that:

Human rights observers report LGBTI individuals often feel the need to hide their sexual orientation or gender identity at work, and those ·who do nor (or cannot may face negative repercussions. High unemployment rates in the economy as a whole make LGBTI individuals reluctant to complain about discrimination, for fear of losing their livelihoods. Turkish employment law allows the dismissal of a government employee who is found ‘to act in a shameful and embarrassing way unfit for the position of a civil servant’, while other statutes criminalise the undefined practice of ‘unchastity’. Human rights observers report employers have used these provisions to discriminate against LGBTI individuals. Social stigma against HIV/AIDS leads many LGBTI individuals to avoid testing for fear the results may be used against them.^vi

[16] The International Lesbian, Gay, Bisexual, Trans and Intersex Association, in its report on the treatment of sexual minorities notes that this group faced bias-motivated violence through political rhetoric.^vii

[17] The objective evidence discussed above establishes that sexual minorities, including transgender individuals face continuous threats and violence in Turkey. This is based on societal perceptions and political rhetoric against this particular social group. Therefore, based on all the evidence before me, I find that the claimant will face a serious possibility of persecution if she is forced to go back to Turkey. Her fears are indeed well-founded.

State Protection

[18] I find that adequate state protection has not been forthcoming to the claimant in this case.

[19] According to the UN Special Rapporteur on extrajudicial, summary, or arbitrary detentions:

‘The challenges relating to the protection of lesbian, gay, bisexual and transgender persons are exacerbated by the attitude of some family members of such individuals, as well as the trend observed by the Special Rapporteur during his visit, whereby law enforcement officials and the judiciary seem to take a lenient attitude towards crime committed against such individuals.^viii

[20] DFAT reports that:

Transgender individuals can legally change gender, although a court must grant permission based on a medical report. Legal gender reassignment is conditional upon the individual remaining unmarried and undergoing surgery and sterilisation. Legislation does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity in social institutions, government offices or corporations. 171e law does not guarantee LGBTI individuals certain rights enjoyed by others, including but not limited to marriage and associated partnership benefits such as retirement, inheritance. insurance. social security and access to the corpse in case of death.^ix

[21] A Response to Information Request (RIR) on the treatment of LGBTQ community in Turkey states that:

The Dutch Ministry of Foreign Affairs report notes that the ban on public LGBTI activities in Ankara “remains in force [as of 2019]” (Netherlands Oct. 2019, 43). The Australian DFAT reports that “in practice the ban in Ankara and many other provinces persists as officials refuse permission on a case-by-case basis, citing security concerns” (Australia Sept. 2020, para. 3.89). The same source notes that in the months after the ban was reversed, police used water cannons, rubber bullets, and tear gas to disperse Pride Month gatherings (Australia 10 Sept. 2020, para. 3.89).^x

[22] The objective evidence shows that LGBTQ community in Turkey suffers from lack of favourable treatment from the authorities in that country. The government not only fails to protect such individuals from violence at the hands of non-state actors but also indulges in curbing their rights. Therefore, I am satisfied that the claimant will be unable to access adequate state protection in Turkey and that the presumption of state protection has been rebutted in this case.

Internal Flight Alternative

[23] I have also considered whether the claimant will be able to live safely anywhere else in Turkey as a transgender person. On the evidence before me, I find, on a balance of probabilities, that she does not have a viable internal flight alternative in her country. The societal attitudes against sexual minorities are prevalent throughout the country, which results in violence, threats, and discrimination against them. Objective evidence^xi shows that transgender persons have a lot of difficulty securing rental premises, have extremely limited job prospects, and do not have access to adequate housing. Therefore, for these reasons and for the ones similar to those of state protection, I find that the claimant will not be able to live safely anywhere in Turkey and that she does not have a viable internal flight alternative in her country.

CONCLUSION

[24] Based on the analysis above, I find that the claimant is a Convention refugee under section 96 of IRPA. Accordingly, I accept her claim.

(signed) Sandeep Chauhan

December 10, 2021

i Immigration and Refugee Protection Act, S.C. 2001, c. 27.

ii Exhibit 2.

iii Exhibit 1.

iv Exhibits 6, 7.

v Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 1.14: Country Policy and Information Note. Turkey: Sexual orientation and gender identity. Version 2.0. United Kingdom. Home Office. June 2017.

vi Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 1.17: DFAT Country Information Report:

Turkey. Australia. Department of Foreign Affairs and Trade. 10 September 2020.

vii Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 6.1: Turkey. Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe and Central Asia. International Lesbian, Gay, Bisexual, Trans and Intersex Association. ILGA-Europe. February 2020.

viii Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 1. 14: Country Policy and Information Note. Turkey: Sexual orientation and gender identity. Version 2.0. United Kingdom. Home Office. June 2017.

ix Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 1.17: DFAT Country Information Report: Turkey. Australia. Department of Foreign Affairs and Trade. 10 September 2020.

x Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 6.5: Treatment of persons with diverse sexual orientation and gender identity and expression (SOGIE) by society and state authorities, including state protection and support services (2018-November 2020). Immigration and Refugee Board of Canada. 26 November 2020. TUR200360.E.

xi Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 6.1: Turkey. Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe and Central Asia. International Lesbian, Gay, Bisexual, Trans and Intersex Association. ILGA-Europe. February 2020.

All Countries China

2021 RLLR 37

Citation: 2021 RLLR 37
Tribunal: Refugee Protection Division
Date of Decision: March 15, 2021
Panel: S. Qi
Counsel for the Claimant(s): Lindsey K Weppler
Country: China
RPD Number: TB9-29019
Associated RPD Number(s):
ATIP Number: A-2022-00978
ATIP Pages: 000012-000017

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision in the claim of XXXX XXXX. You claim to be a citizen of China and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.¹

ALLEGATIONS

[2] The detail of your claim is fully set out in your Basis of Claim form² and is supplemented by your testimony at the hearing. In summary, you fear persecution in China at the hands of the Chinese government due to your membership in a particular social group; specifically, as a Falun Gong practitioner.

[3] You allege that you were introduced to Falun Gong by your boyfriend in March 2019, while studying in Canada. You allege that at the time, you felt depressed, stressed from your studies and had difficulty eating and sleeping. You further allege that since practicing Falun Gong, you have felt positive changes both physically and mentally, as such, you have continued to be involved with Falun Gong practice and activities.

[4] You allege that if you return to China, you would be persecuted due to your identity as a Falun Gong practitioner. You also allege that there is no state protection or an Internal Flight Alternative for you in China.

DETERMINATION

[5] I find, on a balance of probabilities, that you have credibly established a nexus between what you fear and a Convention ground. Accordingly, I find that you are a Convention refugee, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should you return to China. My reasons are as follows.

Identity

[6] Your identity as a citizen of China is established, on a balance of probabilities, by your Chinese passport, the original which was seized by the Minister.³

ANALYSIS

[7] In assessing your credibility, I am cognizant of the difficulties faced by claimants in establishing their claim, such as cultural factors, level of education and sophistication, anxiety inherent in responding to oral questions through an interpreter and the added stress in testifying via videoconference.

[8] I find you to be a credible witness in general and therefore believe what you alleged in support of your claim.

[9] Although you provided testimony regarding your relationship with your boyfriend, I did not find it necessary to explore it further given that a sur place basis to the claim have been established. Accordingly, I will not address this matter any further or make any findings on the credibility of your relationship with your boyfriend, Mr. XXXXX.

The Claimant’s Identity as a Falun Gong Practitioner

[10] You testified in a straightforward manner, and there were no material inconsistencies in your testimony or contradictions between your testimony and the other evidence before me which have not been satisfactorily explained.

[11] I accept, based on your credible testimony, that you were introduced to Falun Gong by your boyfriend in March 2019 in Canada and shortly thereafter began to practice on a regular basis.

[12] With respect to your Falun Gong knowledge, I find your knowledge is commensurate to the length and frequency of your Falun Gong practice. Through your testimony, you have demonstrated adequate knowledge and understanding of Falun Gong and Master Li’s teachings. Although your explanation of attachments was not perfect, it reflected your own understanding of the Zhuan Falun and Master Li’s teachings. You were able to correctly identify and explain the purpose of the exercises when asked. You also correctly explained the law wheel and Karma. You explained why one should cultivate the mind in order to reach a higher level, and thus focus should be placed on cultivating the mind as it is more important than the body. You were also able to correctly explain the purpose and importance of sending righteous thoughts.

[13] Most compelling was your testimony about loss and gain. You testified that you have always felt this loss growing up without a father and that made you felt different than other children. Prior to practicing Falun Gong, you were always fixated on why you did not have a father and why other children would have things that you did not have, and that you were unhappy because of this. You explained that these were attachments, and that through your practice and reading the book Zhuan Falun, you are able to let go of these feelings and that you have learned to care more about how your family members feel rather than your own feelings.

[14] You testified about your participation in Falun Gong group practices and truth clarifying activities in Canada. You have also provided photos⁴ and support letters from your boyfriend as well as another friend.⁵You further testified that Falun Gong has become a part of your life and that you wish to continue your practice freely in Canada. You indicated that Falun Gong has become an important part of your life and that you would not be willing to give up your practice even if you have to return to China.

Delay in Claiming Refugee Protection

[15] You were asked about the delay in making your refugee claim. You explained that at the beginning when you were first introduced to Falun Gong, you decided to try it out for the purpose of strengthening your health. Although you have heard that Falun Gong is illegal in China, you did not practice in a committed manner. However, you made the claim for refugee protection when you realized that Falun Gong had integrated and became a part of your life and you were unable to separate yourself from the practice. Given that this time period also coincided with the start of the Covid-19 pandemic, which disrupted routine services at government offices, I find your explanation to be reasonable under these circumstances, and therefore finds that this delay does not raise significant concerns regarding subjective fear or your credibility. Accordingly, I did not draw any negative inferences in these regards.

[16] I find your testimony to be spontaneous and genuine. You did not embellish your claim even when you had the opportunity to do so when I asked you about your photo being taken while participating in truth clarifying activities in front of XXXX XXXX. For these reasons, I find that you have established your identity as a Falun Gong practitioner, as well as your subjective fear, and I believe that your commitment and your spiritual practice is genuine.

Objective Basis

[17] The objective evidence supports your claim. The National Documentary Package for China confirms that the Chinese government has banned the practice of Falun Gong since 1999, labeling it an “evil cult” under China’s Criminal Law and that there is an established 610 Office, an extrajudicial security apparatus wholly designed to eradicate Falun Gong. State authorities systematically target FLG practitioners, forcing them into prisons or labour and education camps where they are subject to harassment, torture, and forced conversion and/or sentenced to long prison terms.⁶

[18] Documentary Evidence further indicates that new regulations on religious affairs took effect in February 2018 strengthening controls on places of worship, travel for religious purposes and children’s religious education. This report indicates that the campaign against Falun Gong continued in 2018 and practitioners face long prison terms and arbitrary detention.⁷

State Protection

[19] With regard to state protection, given that the state is the agent of persecution, I find that it would be objectively unreasonable for you to seek the protection from the state in your circumstances.

Internal Flight Alternative

[20] I have considered whether an internal flight alternative exists for you. Given that the state is an agent of persecution with control over the entire country, I find that there is a serious possibility of persecution throughout China and therefore a viable Internal Flight Alternative does not exist for you.

CONCLUSION

[21] For the foregoing reasons, I conclude that you are a Convention refugee and I therefore accept your claim.

(signed) Selena Qi

March 15, 2021

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27

2Exhibit 2 – Basis of Claim and Narrative.

3 Exhibit 1 – Minister’s Package.

4 Exhibit 8, Disclosure, Claimant Documents, pages 11-13.

5 Exhibit 9, Disclosure, Claimant Documents, pages 2-7.

6 Exhibit 3 – National Documentation Package for China March 2020 version, Items 12.2, 12.22, 12.23.

7 Exhibit 3 – National Documentation Package for China March 2020 version, Item 2.7.