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Categories
All Countries Jamaica

2021 RLLR 26

Citation: 2021 RLLR 26
Tribunal: Refugee Protection Division
Date of Decision: July 22, 2021
Panel: Gregory Israelstam
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Jamacia
RPD Number: TC0-11961
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000127-000130

DECISION

[1]     MEMBER: Welcome back, everybody. It is 2:34, and we are back on the record.

[2]     CLAIMANT: Thank you, [inaudible].

[3]     MEMBER: Sir, I am now going to read my decision and the reasons for my decision. Are you ready?

[4]     CLAIMANT: Yes.

[5]     MEMBER: Okay.

[6]     CLAIMANT: Thank you.

[7]     MEMBER: These are the reasons for the decision under the Immigration and Refugee Protection Act concerning XXXX XXXX XXXX XXXX.

[8]     XXXX XXXX XXXX, the claimant, seeks protection pursuant to s. 96 of the Immigration and Refugee Protection Act. The claimant is a citizen of Jamaica.

[9]     The allegations of his claim can be found in his Basis of Claim form and in his testimony. The claimant alleges a fear of persecution on the basis of membership in a particular social group. In particular, the claimant alleges a fear of persecution on the basis of his gender identity. The claimant alleges that as a transgender man, should he return to Jamaica, he would be subject to discrimination, harassment, and an increased risk of violence at the hands of society in general.

[10]   At the outset of the hearing, I identified credibility as a primary matter for the hearing to focus on. In particular, an assessment of credibility was required to determine whether the claimant is, as he alleges, a transgender man, and whether he fears persecution as a result.

[11]   With respect to identity, on the file at Exhibit 1 are certified copies of the claimant’s passports from Jamaica. Other identification documents can be found at Exhibit 1 and 4. Through these documents, and his testimony, the claimant has established his personal identity, and his citizenship of Jamaica.

[12]   With respect to credibility, the claimant testified at the hearing. The claimant testified under oath as presumed to be telling the truth, unless there are valid reasons to disbelieve the testimony. In this case, I find no valid reason to reject the claimant’s testimony with regard to his gender identity and his fear of persecution in Jamaica. The claimant was straightforward and spontaneous in his testimony. His testimony contained no material inconsistencies or contradictions. The testimony was consistent with the narrative found in his Basis of Claim form and was supported by a considerable number of documents submitted at Exhibit 4. These documents included medical reports, letters of support from people who knew the claimant in Jamaica, press articles confirming that the claimant has been active in the LGBTQ community in Jamaica, and photographs of the claimant at LGBTQ events.

[13]   Overall, the claimant provided credible and trustworthy testimony. The claimant testified that he was assigned a gender of female at birth. He discovered his gender identity when he was very young. He faced harassment and abuse at school and at home because he was perceived as having masculine mannerisms and he was attracted to women. The claimant testified that he did have a number of relationships with women at high school and during university. On a number of occasions, he had been threatened with violence or sexual assault to cure him. At one point in university, he narrowly escaped assault from a group of teenage boys who had been following him and his date. The claimant testified that he was also subject to discrimination and harassment at his workplace.

[14]   The claimant testified that he began hormone replacement therapy as part of his transition in 2015. He informed his workplace, a technical company named XXXX (ph). Although his supervisor undertook to attempt to aid in the transition in the workplace, the claimant testified that he continued to face harassment and abuse from colleagues. The claimant included other instances of threats or harassment short of actual assault in his Basis of Claim narrative. He testified that he did not go to the police because the police were homophobic, and often allied with people who might attack him.

[15]   The claimant testified that after he left XXXX, he discovered that somebody from that company had outed him as transgender without his consent or knowledge. In the claimant’s Basis of Claim narrative, he describes how this made it difficult for him to secure work.

[16]   The claimant testified that he felt he had to leave Jamaica by 2020. He testified that his XXXX health was suffering because of the stress of having to conceal his identity, as well as the fear of violence. The claimant testified that he was aware of other transgender people who had been assaulted.

[17]   In light of my findings with respect to the credibility of the claimant and the extensive supporting evidence, I find, on a balance of probabilities, the claimant is, as alleged, a transgender man. I further find that he has a fear of persecution on the basis of his gender identity in Jamaica.

[18]   Having found the claimant to have a subjective fear of persecution, I turn to the question of whether this fear has an objective basis. Country condition reports in the Immigration and Refugee Board’s National Documentation Package for Jamaica, dated 16th of April, 2021, support the claimant’s allegation that he is at heightened risk of violence, harassment, and discrimination in Jamaica because of his gender identity. Homophobia remains prevalent throughout Jamaican society, and transgender persons in particular are at high risk of harassment and violence.

[19]   I conclude that the claimant does have an objective basis for his fear of persecution. As such, the claimant has a well-founded fear of persecution.

[20]   The claimant testifies that he does not believe that the police would be able to help him escape a heightened risk of violence. Item 6.2, 6.5, and 6.7 of the National Documentation Package for Jamaica supports this allegation. Jamaica remains a deeply homophobic society, and transgender individuals face a higher risk of discrimination in the workplace, the provision of services, as well as harassment and an increased likelihood of ill-treatment and violence. While steps have been taken by the Jamaican government to address these issues in the hopes that the LGBTQ community will feel safer reporting violence or abuse to the police, in practice, these steps have not been successful. The police continue to often turn a blind eye towards persecution and may even be complicit to such persecution.

[21]   I conclude that there is compelling evidence that the state is unable or unwilling to protect the claimant against persecution. With respect to an internal flight alternative, given the pervasiveness of homophobia and anti-trans sentiments throughout Jamaica, I find there would be no reasonable internal flight alternative to the claimant in Jamaica.

[22]   My conclusion is this. Based on the evidence before me, and the testimony of the claimant, I conclude that the claimant has established a serious possibility of persecution on the Convention ground of membership in a particular social group if he were to return to Jamaica. The claimant is therefore a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act. His claim for protection is accepted.

[23]   That concludes my reasons. Sir, do you have any questions?

[24]   CLAIMANT: No, sir. Just a point — I think, in delivering your decision, you said that I started hormone replacement therapy in XXXX XXXX 2015. I actually started in XXXX XXXX 2016.

[25]   MEMBER: Thank you. My apologies. I think I got that from the Basis of Claim form, so — all right. I appreciate you correcting me. Other than that, do you have any questions?

[26]   CLAIMANT: No, sir, just — thank you.

[27]   MEMBER: I would like to thank you for answering all my questions. I do appreciate that they were personal questions, and they may have brought back some difficult memories, so I would like to thank you for being honest and open with me today. I would like to thank your counsel, who provided an excellent evidentiary record that made it very easy for me to come to a positive decision.

[28]   COUNSEL: Thank you.

[29]   MEMBER: And, if there is nothing else, sir, I wish you all the success possible in your new home.

[30]   CLAIMANT: Thank you, sir.

[31]   COUNSEL: Thank you. Have a good week.

[32]   MEMBER: The hearing is concluded. Have a good day, everybody.

[33]   CLAIMANT: You too.

[34]   COUNSEL: [inaudible].

———-REASONS CONCLUDED———-

Categories
All Countries Saudi Arabia

2021 RLLR 25

Citation: 2021 RLLR 25
Tribunal: Refugee Protection Division
Date of Decision: July 8, 2021
Panel: Deborah Coyne
Counsel for the Claimant(s): (no information)
Country: Saudi Arabia
RPD Number: TC0-12715
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000123-000126

DECISION

[1]     MEMBER: These are the reasons for decision in the claim of XXXX XXXX XXXX who claims to be a citizen of Saudi Arabia and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.  In deciding this claim, the Panel applied the Chairpersons’ Guideline 9, the proceedings before the IRB involving sexual orientation and gender identity and expression.

Allegations

[2]     The allegations are set out in the Basis of Claim form. The claimant alleges a serious possibility of persecution in Saudi Arabia because of her sexual orientation and gender identity. The claimant was born as a male but self-identifies as a female and completed the gender transition in Malaysia. She alleges that she faces serious persecution and life-threatening harm if she has to return to Saudi Arabia.

Decision

[3]     The Panel finds that the claimant faces a serious possibility of persecution should she return to Saudi Arabia because of her membership in a particular social group, specifically based on her sexual orientation and gender identity as a transgender woman. She is, therefore, a refugee pursuant to Section 96 of the IRPA.

ANALYSIS

Identity

[4]     The Panel finds that the identity of the claimant as a national of Saudi Arabia is established by the claimant’s Saudi Arabian passport in Exhibit 1.

Credibility

[5]     Based on the testimony and the documents in the file, including the detailed Basis of Claim, the Panel has noted no serious credibility issues. On a balance of probabilities, the Panel finds the following to be true: that the claimant was born as a male in Saudi Arabia in 1996. Since a very young age, the claimant was aware that she was not like other boys and that she preferred the female identity. She was abused and threatened mentally and physically by her father throughout her childhood, especially when her father took custody of him and his sister, away from their mother after their parents’ divorce. She suffered physical and mental bullying at school.

[6]     In 2019, the claimant was able to travel to Malaysia for studies and the claimant started the HRT process to transition his gender to female. Exhibit 5 includes documents from the claimant’ s XXXX in Malaysia that explains the claimant’ s treatment and progress.

[7]     The claimant’ s family found out when the claimant returned to Saudi Arabia to attend his sister’ s wedding. The claimant’s father and other relatives threatened his life and the claimant’s mother insisted that the claimant leave Saudi Arabia immediately as the pandemic was starting to shut down flights out of Saudi Arabia. The claimant was able to get a TRV to come to Canada and arrived in XXXX 2020.

[8]     The claimant submitted her claim for refugee protection and cannot return to Saudi Arabia where she fears persecution and death because of her gender identity and sexual orientation as a transgender woman.

[9]     The Panel finds that the claimant’s narrative and evidence was internally consistent and plausible. There were no contradictions or omissions that go to the core of the claim. The allegations were supported by personal documents in Exhibit 5 that the Panel finds credible, and that establishes the claimant’s identity as a transgender woman. These include letters from the doctor in Malaysia who provided the HRT treatment and related medical documents, as well as some photos.

[10]   The Panel accepts the evidence as establishing on a balance of probabilities the claimant’ s subjective fear of persecution because of her gender identity and sexual orientation if she returns to Saudi Arabia.

[11]   The objective evidence in the National Documentation Package for Saudi Arabia in Exhibit 3 indicates that LGBTQ rights are not recognized and confirms that both male and female, same sex sexual activities are illegal. Saudi citizens must comply with uncodified criminal code based on Sharia Law and within this framework, sex outside of marriage is illegal, same sex marriage is not permitted and same sex intimacy is criminalized.

[12]   In Saudi Arabia, homosexuality and being transgender is widely regarded as immoral and indecent. The law imposes severe punishments for acts of homosexuality and cross dressing such as torture, prison up to a lifetime and capital punishment. Members of the LGBTQ community are ostracised and, in some cases, exposed by their own family members.

[13]   The situation faced by transgender persons in Saudi Arabia is corroborated by news reports and reports submitted by the claimant and also in Items 2.1, 2.4, 2.9, 6.1, 6.2, and 6.3 of the NDP. The Panel finds that the claimant’s subjective fear of persecution and death as a transgender woman in Saudi Arabia is well founded.

State Protection

[14]   Since being a transgender woman is criminalized in Saudi Arabia, the Panel finds that it is clearly unreasonable for the claimant to ask for the protection from the Saudi authorities. The Panel finds the claimant has rebutted the presumption of state protection with clear and convincing evidence.

Internal Flight Alternative

[15]   The Panel has considered whether a viable Internal Flight Alternative exists for the claimant. The Panel finds that the claimant faces a serious possibility of persecution throughout Saudi Arabia because of her sexual orientation and gender identity, and, therefore, the Panel finds the claimant does not have a viable Internal Flight Alternative within Saudi Arabia.

CONCLUSION

[16]   The Panel finds that the claimant faces a serious possibility of persecution should she return to Saudi Arabia because of her membership in a particular social group, specifically based on her sexual orientation and gender identity as a transgender woman. She is, therefore, a refugee pursuant to Section 96 of the IRPA and the claim is accepted.

———- REASONS CONCLUDED ———-

Categories
All Countries Kuwait

2021 RLLR 24

Citation: 2021 RLLR 24
Tribunal: Refugee Protection Division
Date of Decision: October 28, 2021
Panel: Michael McCaffrey
Counsel for the Claimant(s): Adrienne C Smith
Country: Kuwait
RPD Number: TC1-04808
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000120-000122

DECISION

MEMBER: The hearing resumes. The same parties are present. Sir, I’m ready to give you my decision today. The decision I give you now will be provided to you in written form in the coming weeks, and may be revised for grammar and syntax, and references to the case law and documentary evidence may also be added. Do you understand that?

COUNSEL: So, XXXX XXXX (ph), you can say yes if you understand, and no if you don’t.

CLAIMANT: Yes. Yes. Yes.

[1]     MEMBER: Okay. These are the reasons of the Refugee Protection Division in file TC1-04808. XXXX is a citizen of the State of Kuwait by birth, seeks refugee protection pursuant to s. 96 and subsection 97(1) of the Immigration and Refugee Protection Act. He alleges more particularly a nexus to the Convention based on his membership in a particular social group, namely his sexual orientation and gender identity. Accordingly, as discussed with Counsel at the beginning of the hearing, I was guided by the Chairperson’s guideline number 9 dealing with such claims.

[2]     The claimant’s personal identity and nationality are established by the documentary evidence, including the certified copy of his Kuwaiti passport disclosed by the Division from the department at Exhibit 4. I’m satisfied on the balance of probabilities as to the claimant’s personal identity and that he’s a citizen of Kuwait and of no other country. The claimant did not allege that he faced a danger of torture in Kuwait. The documentary evidence does not persuade me otherwise, and therefore, I find that he does not face a danger of torture in Kuwait.

[3]     The issue before me was whether I believed the claimant. I found him to be a straightforward and trustworthy witness. He had some awareness of his sexual orientation and gender identity somewhat earlier in his life, when he was still amongst his family in Kuwait, and coming to Canada as a visa student allowed him to explore that more fully. According to the evidence and his testimony, he briefly underwent hormone replacement therapy to transition to the female gender, but has since abandoned that path and currently defines his sexual identity as non-binary — or I guess that’s the gender — I get the terms mixed. From what I know, it totally is not unusual to commence that therapy and to abort it before much progress has been made. That doesn’t concern me. I do find the — the report of the psychiatrist very helpful and informative. The claimant’s own testimony — it is somewhat unclear as to where I think he is. But I think that’s also not unusual, given that he’s only had the freedom to explore his orientation and identity in the last couple of years. It may well be that he — that when all the dust settles, some years from now, he ends up to be a heterosexual or cisgender male, but that’s not what is before me today, and I’m satisfied that if the claimant were required to return to Kuwait, that according to the documentary evidence contained both in part 6 of the Board’s index and disclosed in Exhibit 5 from Counsel, that there’s a serious possibility that the claimant would face persecution in Kuwait because of his sexual orientation and gender identity. I therefore determine that the claimant is a Convention refugee and I accept the present claim.

——————–REASONS CONCLUDED ————-

Categories
All Countries India

2021 RLLR 23

Citation: 2021 RLLR 23
Tribunal: Refugee Protection Division
Date of Decision: December 31, 2021
Panel: Devin MacDonald
Counsel for the Claimant(s): Penny Yektaeian
Country: India
RPD Number: TC1-09714
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000112-000119

REASONS FOR DECISION

[1]     The claimant XXXX XXXX (Legal name XXXX XXXX XXXX) is a woman from India who is claiming refugee protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Act.

ALLEGATIONS

[2]     The claimant’ s allegations are detailed in her basis of claim narrative. In short, the claimant fears persecution in India from her family, and society due to her gender identity expression as a trans woman.

[3]     The claimant’s narrative describes her self-discovery process as a trans woman in India and her experience living with gender dysphoria. The claimant also outlines many instances of transphobia, homophobia, and gendered violence that she alleges to have personally experienced in India.

[4]     The claimant alleges that she entered Canada on XXXX XXXX 2018, and began to receive hormone therapy in XXXX 2018. She alleges that she did not take steps towards making an asylum claim in Canada until April 2020 because she did not have the necessary support system in place until that time and wanted to avoid remembering traumatic events from her past.

DETERMINATION

[5]     Paragraph 170(f) of the IRPA1 provides that the Refugee Protection Division (RPD) may allow a claim for refugee protection without a hearing, unless the minister has notified the RPD of the minister’ s intention to intervene within the time limit set out in the Refugee Protection Division Rules.2 Further, subsection 162(2) of IRPA3 directs each division to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. The Immigration and Refugee Board has issued Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD).4 The claimant’s claim was identified as one to which this process could apply. Her Certificate of Readiness was received on December 17, 2021. Having carefully considered the evidence in this case, the panel finds that it meets the criteria to be decided without a hearing.

[6]     The panel finds that the claimant is a Convention refugee according to s. 96 of the Immigration and Refugee Protection Act.

ANALYSIS

Identity

[7]     The claimant’s identity as a citizen of India is established by a certified true copy of her passport issued by Indian authorities.5

Nexus

[8]     The panel finds that the claim is based on the claimant’s membership in a particular social group, as the claim is based on her gender identity. As such, the claim has nexus with the Convention and is assessed according to s. 96 of the Immigration and Refugee Protection Act.

Credibility

[9]     The claimant submitted reliable documents that credibly establish that she is a trans woman.

[10]   The claimant provided a medical report, hormone prescription records, and bloodwork from her family physician.

[11]   The medical report, dated XXXX XXXX, 2021, indicates that the doctor has provided care for the claimant since XXXX XXXX, 2018. The doctor confirms the claimant’s identity as a trans woman, states that they established the diagnosis of Gender Dysphoria for the claimant over the course of two assessments in XXXX 2018 and indicates that the claimant will require lifelong hormone therapy as treatment.6

[12]   The prescription records included in the medical report are a printout from a :flowsheet. The indicate that the family physician has prescribed hormone medications to the claimant regularly with the earliest prescription dated XXXX XXXX 2018.7

[13]   The blood test results included in the medical report indicate that the claimant’s level of estradiol has increased, and level of testosterone as dropped between the first test dated XXXX XXXX, 2018, and subsequent tests.8

[14]   The claimant provided three internet posts from an internet forum made in 2016, which is years prior to the claimant entering Canada. In the posts, the claimant expresses her identity as a trans woman and her experience with gender dysphoria.9 The posts are anonymous; however, the details of the posts are consistent with the claimant’s basis of claim narrative and in conjunction with the official medical documentation, with the panel has no reason to doubt that the claimant authored the posts. The panel finds the documents reliable and probative for the purpose of establishing the claimant’s identity and gender expression.

[15]   The panel finds that the documents cited above reliably establish on a balance of probabilities that the claimant is a transwoman, that she has a diagnosis of gender dysphoria, and that she receives ongoing treatment for her gender dysphoria in the form of hormone therapy.

[16]   The claimant provided a recording of a conversation between her and her mother in Gujrati10 and a transcript of the conversation accompanied by a translator’s declaration indicating that the audio tape was translated from Gujrati to English.11 The conversation concerns a specific instance of violence inflicted by the claimant’s parents onto the claimant. The documentation from mental health professionals indicates that the claimant has reported a long history of abuse.12

[17]   The letter from XXXX XXXX Registered Psychotherapist, indicates that at the time of letter-writing they have had eighty-seven one-hour psychotherapy sessions with the claimant and indicates that the claimant has been diagnosed with complex trauma, which is diagnosed in individuals who have repeatedly experienced traumatic events such as violence, abuse, or neglect over a sustained period of time. The author states the claimant dissociates when reminded of past abuse which results in a struggle to think or communicate clearly.

[18]   The letter is consistent with the claimant’s narrative in that her diagnosis of complex trauma is consistent with the experiences outlined in her narrative and in that the symptoms of complex trauma that the psychotherapist has noted in the claimant explain why the claimant delayed in making her claim in Canada until April 2020.

[19]   Based on the sworn statements in the claimant’s BOC narrative and the corroborating documentation, including, the claimant’s mother’s verbal confirmation of physical abuse, the panel finds that the claimant faced mistreatment including physical violence in India due to her trans identity.

[20]   The panel finds that the above facts establish a subjective fear of persecution for the claimant should she return to India.

Well-Founded Fear of Persecution

[21]   The National Documentation Package [“NDP”] indicates that the transgender community is continually harassed, stigmatize, and abused by the police, judges, their family, and society. Human rights watch indicates that transgender people face discrimination in employment and housing.13

[22]   Sources indicate that transgender individuals have difficulty accessing health care and face stigma and discrimination when attempting to access the care they require.14

[23]   An article, provided by the claimant from Scientific American states that transgender people are refused health care at public hospitals.15 Another article from Al Jazeera documents specific incidents of mistreatment that trans individuals have experienced in attempting to access health care in India. It mentions an individual who died while doctors could not decide whether to admit the patient into a male or female ward and mentions an individual who was not given treatment, or the anti-HIV medicine recommended to rape victims. The article states that trans patients often face derogatory remarks from hospital staff and face delay in treatment.16

[24]   NDP item 2.15 indicates that transgender persons face difficulties in finding rental housing and are often forced to live in remote slum areas, where access to water and sanitation facilities is poor. 17

[25]   NDP item 6.6 states that trans individuals are vulnerable to physical and sexual violence in their homes. When young trans persons begin to express their gender identity they are often subjected to emotional, verbal, physical and even sexual abuse. The documents also discuss mistreatment perpetrated by private actors against transgendered individuals in public spaces, ranging from widespread verbal harassment, denial of services, and including physical and sexual violence perpetuated by mobs against transgender women.18

[26]   The panel finds that the objective evidence establishes, on a balance of probabilities, that the claimants fear of persecution in India due to her identity as a transwoman is well-founded.

State Protection

[27]   Trans individuals in India are legally recognized by the Indian state as belonging to a third gender. Despite legal recognition, transgender protection laws in India are criticized for denying the right to self-identify and requiring a certificate of identity from authorities and by not offering adequate legal protection against sexual violence.19

[28]   Although the law bans discrimination, it does not define discrimination or provide for an enforcement mechanism to enforce the right to non-discrimination or provide any remedy when discrimination occurs.20

[29]   NDP item 6.3 states that the systemic discrimination and violence faced by queer persons in India, and the challenges they face in accessing justice and seeking remedies for human rights violations, remain at odds with the constitutional provisions concerning right to equality, non-discrimination, freedom of expression and dignity which has been recognized as the source of transgender persons’ right to self-recognition of their gender identity by the Indian Supreme Court.21

[30]   Item 6.3 indicates that trans individuals face a risk from state authorities including police. Item 6.3 indicates that many transgender persons rely on sex work as a means of livelihood and that there is also a perception that transgender persons are involved in sex work, even when they may not be. The police often use provisions designed to regulate sex work against transgender persons to arrest and detain them. Likewise, the documents indicates that trans persons are targeted by anti-beggary laws and nuisance laws by police who are supposed to be serving as agents of state protection.22

[31]   Although the NDP indicates that there are trans-specific group that focus on advocacy and support for the trans community, the evidence does not indicate that these groups function as agents of state protection transgender individuals.

[32]   The panel finds that operationally adequate state protection would not be forthcoming to the claimant in India should she return.

Internal Flight Alternative

[33]   The panel finds that the claimant is unable to relocate to another part of India as there would be nowhere in India where the claimant would be able to openly express her gender identity without facing persecution. The country evidence reveals a strong societal bias against trans woman throughout India.

CONCLUSION

[34]   Having considered the totality of the evidence in this claim, the panel finds that the claimant’s subjective fear is objectively well-founded, and that the claimant has a serious possibility of persecution upon return to India due to her membership in a particular social group. There is no viable internal flight alternative or adequate state protection for the claimant in India.

[35]   The panel finds that the claimant is a Convention refugee and accepts the claim under s. 96 of the Immigration and Refugee Protection act.

(signed) Devin MacDonald

December 31, 2021

1  Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 170(t).

2  Refugee Protection Division Rules (SOR/2012-256).

3  Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 162(2).

4 Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division, effective January 29, 2019.

5 Exhibit 1: Claim referral information from CBSA/IRCC

6 Exhibit 5: Applicant’s document package, Persona] documents, Medical report and file issued by Dr. page 7-23

7 Ibid

8 Ibid

9 Exhibit 5: Applicant’s document package, Persona] documents, P. S’s Reddit web site posts. Page 23c-23e

10 Exhibit 5: Applicant’s document package, Persona] documents, Audio transcript, at page 1b-1d

11 Exhibit 5: Applicant’ s document package, Persona] documents, Translator’ s declaration, at page 1a

12 Exhibit 5: Applicant’s document package, Persona] documents, Psychodiagnostic Evaluation at page 1-6 and Psychological assessment at page 23a-23b.

13 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.

14 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.

15 Exhibit 5: Applicant’s document package, Country Conditions, Trans and Queer people in India should demand better health care” scientificamerican.com at page 34.

16 Exhibit 5: Applicant’s document package, Country Conditions, “Indian transgender healthcare challenges” dated June 18, 2014, alzajeera.com, at pages 38-39.

17 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 2.15: United Nations Documents Related to Housing and Land Rights in India. Housing and Land Rights Network. October 2019.

18 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.6: Living with Dignity: Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India. International Commission of Jurists. June 2019.

19 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.

20 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.

21 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.3: “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity. International Commission of Jurists. February 2017.

22 National Documentation Package, India, 30 June 2021, tab 6.3: “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity. International Commission of Jurists. February 2017.

Categories
All Countries

2021 RLLR 22

Citation: 2021 RLLR 22
Tribunal: Refugee Protection Division
Date of Decision: October 29, 2021
Panel: Moyosore Sadiq-Soneye
Counsel for the Claimant(s): Gabriella B Utreras Sandoval
Country: India
RPD Number: TC1-12568
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000108-000111

DECISION

MEMBER:

Reasons for Decision

[1]     These are the reasons of the Refugee Protection Division of the Immigration and Refugee Board of Canada for the — for the decision in the claim of XXXX XXXX XXXX, who is also known as [inaudible], file number TC1-12568, held on the 29th of October, 2021.

Allegations

[2]     Your allegations are set out in the claimant’s Basis of Claim form in Exhibit 2 and 4. In summary, you allege to be an Indian trans woman in the process of transitioning. Your sexual orientation is pansexual. You have experienced abuse multiple times, and you fear returning to India on the basis of your gender identity and sexual orientation, and you claim refugee protection under s. 96 and s. 97(1) of the Immigration and Refugee Protection Act. I considered and applied the Chairperson’s guideline 9, regarding claims on sexual orientation and gender identity and expression.

Determination

[3]     I find that you are a Convention refugee according to s. 96 of the Immigration and Refugee Protection Act.

Identity

[4]     Your identity as a citizen of India was established by a certified true copy of your passport, a copy of your Indian union driving licence, a copy of your birth certificate, a copy of your national identity card, set out in Exhibit 5.

Nexus

[5]     I find that this claim is based on your membership in a particular social group, as the claim is based on your gender identity and sexual orientation. Thus, you will be assessed according to s. 96 of the Immigration and Refugee Protection Act.

Credibility

[6]     Credibility is always an issue in a refugee protection hearing. You testified in a straightforward manner with no hesitation, and quite often with great emotion. You provided realistically detailed testimony of your experience as a sexual minority in India. You described the intolerance and harassment that you faced from family, the society, and even the police. You explained that your gender identity and sexual orientation alienated you from your family, and the last communication you had with them regarding your engagement with XXXX (ph) was very stressful for you. Your allegations are supported by the documentary evidence that we have. Therefore, I accept your allegations that you are who you say you are, a pansexual trans woman from India who has a forward-looking risk of facing persecution in India. You are afraid to return to India and live your life openly as a pansexual trans woman. In support of your claim, you provided multiple documents corroborating your allegations, including an updated Basis of Claim form, translated Facebook messages from XXXX (ph), your father, Facebook messages from [inaudible] XXXX (ph), your sister, a letter from XXXX (ph), your counselor, copies of medical files, including emergency department triage records, mental health assessments, mental health services reports, and a letter of recommendation for cross-gender hormone replacement therapy from XXXX XXXX (ph), a support letter from XXXX XXXX (ph), your fiancé, with accompanying ID dated , XXXX XXXX 2021, support letter from XXXX XXXX (ph), your friend, with a accompanying ID dated XXXX XXXX, 2021, support lette from XXXX XXXX XXXX (ph), dated XXXX XXXX 2021, a copy of lease with you listed as a tenant and XXXX XXXX as a tenant too, which — with two children, photos of you, XXXX, XXXX (ph), and XXXX (ph).

Articles on the Country Conditions

[7]     I find the documents provided to be highly probative because I have no reason to doubt the authenticity. They contain all marks of genuine documents, and I hereby assign them full weight in corroborating your allegations of persecution. I find that you have established on a balance of probabilities that you are a pansexual trans woman from India. You testified in detail about your personal evolution as to your self­ definition and self-awareness as to your sexuality and gender. Your Basis of Claim narrative states your experiences in India, past relationship with XXXX (ph), and current relationship with your fiancé XXXX XXXX, and much more. You spontaneously state the things that you like about XXXX XXXX , and about your relationship with the children. XXXX XXXX provided a detailed support letter. You found out your sexual orientation when you were in grade 6 or 7, and at that time, you knew that you liked boys and thought that you were gay. You have now discovered that you are pansexual, and that gender does not matter for you, but connection does, in a relationship. You became aware of this because your fiancé, XXXX XXXX is a trans man, and you realized that the connection is all the matters. You discovered your gender identity as an adult in Canada, though you had worn female clothing and makeup as a child, and you got harassed and reprimanded strongly for doing that. In addition, you provided corroborating documents about the allegations on the state of your mental health. Cumulatively, I am satisfied on a balance of probabilities that you have established subjective fear, and the objective basis and evidence support the same, and you have a well-founded fear of persecution in India on the basis of your sexual orientation as a pansexual and trans woman.

Objective Basis

[8]     Although the law in India made it legal for sexual minorities in India in late 2018, the general public have not accepted such relationships. LGBTQ2+ groups reported that they faced widespread societal discrimination and violence, particularly in rural areas. Some police committed crimes against LGBT persons and used the threat of violence to coerce victims not to report the incidents. Research has revealed that LGBTQ persons typically face sexual orientation and/or gender identity-based discrimination that affects their ability to fully enjoy civil, cultural, economic, political, and social rights. For example, housing. Its members often face extensive rights violations within the domain of housing [inaudible]. This includes discrimination in the rental market, denial of housing, segregation into poorly resourced neighbourhoods, violence and harassment from landlords, neighbours, families, and police.

[9]     Sexual minorities experience discrimination and human rights abuses at all stages of the employment process. This includes unequal access to educational opportunities, discrimination during the recruitment process, discrimination and gendered working conditions, and a Jack of job security. I had to look holistically at the experience that a trans woman who is pansexual would face in India in terms of the overall climate, both from the state and from the people, as well as the active persecution that one might face in India. I’ve also considered your personal circumstances in this case. Your clear desire to live openly, both in terms of your sexual orientation as well as your gender identity. I also considered the past abuse on your mental state. So, for these reasons, I find that you have sufficiently established from the evidence that there remains a conservative culture which in and of itself might not be enough. But the totality of the factors point in the direction that there is sufficient subjective fear and objective basis to have your claim rise to the level of persecution to satisfy the terms that I have to apply today.

State Protection

[10]   Refugee status is only available to those who can establish that state protection is unavailable to them in their country of nationality. States are generally presumed to be capable of protecting their citizens. However, this presumption may be rebutted by clear and convincing evidence that state protection would not be forthcoming to the claimant. I am satisfied that the presumption of state protection has been rebutted in your case. In reviewing the country conditions on state protection in India and its treatment to the sexual minorities, the NDP item 6.1 outlines that the attitudes and behaviour of the police is one of the biggest barriers to sexual minorities — to sexual minorities’ access to the justice system in India. Furthermore, in several cases, the police have refused to file complaints submitted by sexual minorities, owing to bias or stereotypes. You testified that you sought state protection when your father locked you up in a room for about a week after beating, abusing, and causing you injuries that have caused scars on your face. You could not access medical assistance because you were locked up. You escaped by breaking the window. However, when you reported to the two police officers, they made snide comments like ‘oh, he is one of those,’ and they collected your father’s phone number. You had thought that the officers collected your father’s phone number to take action against the inhumane treatment meted to you by your father, but they only took the number to call your father to take you back home. You got no help from the police, as they refused to file a complaint, and they released you to your father, who abused you.

[11]   Objective evidence does indicate the laws might be in place and mechanism of protection for sexual minorities may be in place. However, I find that at this time, they are not operationally adequate. The attitude of the police remains one of the biggest barriers for access to justice for sexual minorities. Given the mistreatment of sexual minorities by Indian authorities, and the evidence painting to the limited police effectiveness regarding LGBTQ crimes, I find on a balance of probabilities that adequate state protection would not be reasonably forthcoming to you in India.

Internal Flight Alternative

[12]   I have also considered whether a viable internal flight alternative exists for you. In other words, whether there is any location in India where you could live safely. Based on the country condition evidence, I find that the persecution of LGBTQ+ persons persists throughout India. I therefore find on a balance of probabilities that there is no viable internal flight alternatives for you in India.

CONCLUSION

[13]   So, for all the above reasons, having considered everything, including the SOGIE guidelines, I find that you have a well-founded fear of persecution under s. 96, and thus, I find you to be a Convention refugee under the Immigration and Refugee Protection Act, and I therefore accept your claim.

———-REASONS CONCLUDED———-

Categories
All Countries Hungary

2021 RLLR 21

Citation: 2021 RLLR 21
Tribunal: Refugee Protection Division
Date of Decision: July 8, 2021
Panel: Megan Kammerer
Counsel for the Claimant(s): Ramneek Sidhu
Country: Hungary
RPD Number: VB9-07875
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000101-000107

DECISION

[1]     MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX who also goes by the chosen name of XXXX XXXX as a citizen of Hungary who is claiming refugee protection pursuant to Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[2]     In assessing these claims, I have considered and applied the Guidelines on Sexual Orientation and Gender Identity and Expression called the SOGIE Guidelines, to ensure that appropriate accommodations were made in questioning the claimant and the overall hearing process and in substantively assessing the claim.

ALLEGATIONS

[3]     The claimant alleges that she is transgender and that as a transgender person she is subject to persecution in Hungary.

DETERMINATION

[4]     I find that the claimant has a well-founded fear of persecution and is, therefore, a Convention refugee under Section 96 of the Act.

ANALYSIS

Identity

[5]     I find that the claimant’s identity as a national of Hungary has been established on a balance of probabilities by her testimony and a copy of her passport.

Credibility

[6]     When a claimant swears to the truth of her allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness. In this case I have found no reason to doubt the claimant’s truthfulness, she testified in a straightforward and convincing manner and answered all of the questions posed to her. She was able to speak in detail about what it is like to live as a transgendered person in Hungary. The discrimination and threats that she faced in Hungary and the risks that she would face if she were to return to Hungary, particularly as she has started the process of transitioning and is currently on hormone replacement therapy.

[7]     In addition, the claimant has provided several documents which corroborate her claim. These included a number of medical and XXXX reports authored by professionals in Canada and in Hungary, which confirm that the claimant has identified as transgender since her childhood. And that the claimant is currently being treated with hormone therapy.

[8]     A statement of support from a friend that the claimant met online in the XXXX 2018. This friend states that she is aware of the claimant’s quote “dysphoria and her attempt to establish her trans identity back in her country” from their first email exchange. The friend states that the claimant disclosed that quote, “Almost every attempt to present female in her old place of living was met with threats to her life and health often with XXXX malice in the form of verbal attacks.”

[9]     The friend indicates that she helped the claimant to obtain information on the asylum process in Canada. A series of emails exchanged between the claimant and her friend which corroborate her allegations and contain a series of references to the claimant transitioning, identifying as female, and the discrimination and harassment she has experienced in Hungary. A series of photographs which captured the claimant’s physical transition. And the claimant also made a witness available to attest her gender identity but given the wealth of detailed evidence available, I did not feel it was necessary to call this witness.

[10]   I find the claimant to be credible and I believe what she has alleged in support of her claim.

Nexus

[11]   The claimant alleges that she is at risk due to her identity as a transgender individual. I find that the persecution the claimant fears has a Nexus to the Convention ground of a particular social group, namely transgendered individuals. I have thus assessed this claim under Section 96 of the Act.

Well-Founded Fear of Persecution

[12]   The claimant testified that she is afraid to return to Hungary as a visibly transgender person. She indicated that if she were to return to Hungary, she would face discrimination in nearly every facet of her life.

[13]   Ranging from the ability to seek employment, to the ability to seek medical treatment, to the ability to walk safely down the street. She spoke about being verbally assaulted on the street for her appearance and about death threats her trans friends have received.

[14]   The claimant testified that while Hungary has never been particularly accommodating for members of the LGBTI community, but that the atmosphere has deteriorated significantly in recent years to the point where she feels she can no longer live safely in Hungary.

[15]   She indicated in the past few years the government has passed laws which are designed to target LGBTI people and transgender people in particular. And that her country now does not recognize her existence.

[16]   The claimant also testified about how difficult it was to make the decision to leave her home in Hungary but how she felt she had no other options given the XXXX impact of hiding her true self and the increasingly discriminatory legislation being passed by the government.

[17]   The claimant testified about how difficult it was XXXX and emotionally to live in Hungary where transgender issues are quote “repressed” and where she legally does not have the option of transitioning.

[18]   She testified about the process of attempting to legally transition in Hungary before legislation was passed in 2020 now making this illegal, and the impact that this process had on her mental state.

[19]   The objective country condition evidence corroborates the claimant’s evidence. The International Lesbian Gay Bisexual Trans and Intersex Association of Europe which is cited at Item 6.1 of the National Documentation Package has stated that Hungary has adopted a quote “increasingly hostile atmosphere” towards sexually minorities. Likewise a recent report authored by the Hatter Society, the Hungarian LGBT Alliance and the Transvanilla Transgender Association concludes that quote, “discrimination, harassment, and various forms of violence are part of the everyday experience for a large proportion of LGBTI persons in Hungary. These views are often shared, in some cases even encouraged, by leading politicians.”

[20]   A recent report on hate speech also cited at Item 6.1 of the National Documentation Package links the Hungarian government’s policies with the rise in discrimination and intolerance perpetrated against LGBTI persons.

[21]   The objective evidence demonstrates that the government has become increasingly homophobic, has targeted LGBTI people with homophobic and discriminatory comments, and has taken a series of escalating measures designed to severely curtail the rights of transgendered people.

[22]   In May 2019 for example, as is set out at Item 6.1 of the National Documentation Package, the speaker of the Hungarian parliament stated that there is no moral difference between the adoption of children by same-sex couples and pedophilia.

[23]   That same year, an article submitted by the claimant at Exhibit 6 shows that one (1) of the State-run public service channels dedicated a show to conversion therapy spreading the view that homosexuality is a disease and that it is only the gay lobby trying to convince young people that this was not a sickness and incurable.

[24]   As is detailed at Item 2.1 of the National Documentation Package, on December 15th 2020 parliament adopted a government submitted amendment introducing additional gender specific language into the constitution declaring that “the basis for family relations is heterosexual marriage” and “the mother is a woman, the father is a man”. It also declared that the country “protects children’s rights to an identity based on their gender at birth” and that children must be guaranteed, “upbringing based on values stemming from Hungary’s constitutional identity and Christian culture”.

[25]   Parliament also adopted government submitted legal provisions on adoption allowing only married couples consisting of a woman and a man to adopt children unless the Minister for Family Affairs grants special permission.

[26]   On May 19th 2020, Hungary’ s parliament adopted a Bill that included provisions replacing the term gender with gender at birth in the civil registry. And prohibited gender change on all official documents such as identification cards, passports, and driving licenses.

[27]   LGBTI Organizations expressed public concern that as a result transgender persons could face harsh workplace and health care discrimination or could be accused of fraud when presenting personal identity documents.

[28]   A representative of Amnesty International cited at Item 6.4 of the National Documentation Package has stated that the legislation “pushes Hungary back towards the dark ages and tramples the rights of transgender and intersex people” and will ” deepen an already intolerant and hostile environment faced by the LGBTI community”.

[29]   At Item 6.3 of the National Documentation Package, Amnesty International further states that the uncertainty and daily struggles these changes bring in accessing basic services, institutions and opportunities can lead to self-harm, suicide, and other mental health challenges for people who are unable to have their gender identity recognized.

[30]   This affects, in particular, those individuals whose appearance, gender expression or gender identity do not match their sex on official documents, since their right to privacy could be violated whenever they are required to prove their identity.

[31]   Amnesty International has also pointed out that these provisions not only severely violate the right to privacy but also expose transgendered and intersex people to additional legal, social, and institutional hurdles in violation of their economic, social and cultural rights.

[32]   Moreover, according to Amnesty International, these changes are likely to expose transgender and intersex people to discrimination in all spheres of life.

[33]   In October 2020, the Prime Minister of Hungary stated that a book that depicted fairy tales with minority Romani LGBTI and characters with disabilities was a quote, “act of provocation”.

[34]   The leader of the party tore up a copy of the book in public and a conservative campaign group collected signatures calling for a boycott. And then most recently as is set out in the evidence provided by the claimant in Exhibit 6, in XXXX 2021, Hungarian law-makers approved legislation that prohibits sharing with minors any content that portrayed homosexuality or sex reassignment on the grounds that this will help them fight pedophilia.

[35]   Amnesty International has condemned this legislation on the ground that it will further stigmatize LGBTI people and expose them to greater discrimination in what is already a hostile environment.

[36]   At Item 2.1 of the National Documentation Package, the United States Department of the State identifies threats of violence by extremists targeting lesbian, gay, bisexual, transgender, and intersex persons as one (1) of the most significant human rights issues in Hungary.

[37]   Sources at Item 6.3 of the National Documentation Package also indicate that in Hungary transgender and intersex people are often subject to discrimination with respect to employment, education, accessing goods and services, and housing.

[38]   Moreover, they often experience violations of their right to health, both in obtaining treatment related to their gender identity and in obtaining general medical care.

[39]   In addition to the legal obstacles, the often outdated approach of certain medical staff can lead to transgender and intersex people avoiding a visit to the doctor altogether.

[40]   In light of the evidence outlined above, I must determine whether the claimant faces a serious possibility of mistreatment that would amount to persecution if she returned to Hungary. There is a distinction between discrimination and persecution. Only those individuals who face a serious possibility of persecution are entitled to protection under the Act. Although persecution is not defined in the Act, the relevant case law has identified general hallmarks for criteria of persecution.

[41]   In determining the meaning of persecution, I note that the Act must be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. In order to be considered persecution, the mistreatment suffered by a claimant must be serious. In order to determine whether a particular mistreatment would qualify as serious, one must examine what interest of the claimant might be harmed and to what extent the subsistence enjoyment, expression or exercise of that interest might be compromised.

[42]   The court has equated a serious compromise of the claimant’ s interest with a “sustained or systemic violation of basic human rights”.

[43]   The second criterion of persecution is that the inflicting of harm occurs with repetition or persistence in a systematic way. Each act of mistreatment or discrimination on its own may not reach the level of persecution and I must consider the cumulative impact on the claimant. In this case, the evidence outlined above demonstrates that the government in Hungary continues to target LGBTI persons, including transgender persons by making homophobic and discriminatory comments as well as bypassing a series of increasingly homophobic and regressive laws, designed to promote a hostile atmosphere towards LGBTI persons and to curtail their rights.

[44]   This is compounded by persecutory social practices that mean that transgender persons are often notable to access basic services such as education, health care, and housing.

[45]   And that they are not able to exercise basic rights, including those outlined in international human rights instruments such as the right to security of the person and the right to privacy.

[46]   As such, considering all of the evidence before me, I find that the level of discrimination and mistreatment faced by transgender persons in Hungary amounts to persecution and that the claimant would face such a persecution if she returned to Hungary. I thus find that the claimant would face a serious possibility of persecution in Hungary.

State Protection

[47]   The next element in my analysis is whether there is adequate state protection for the claimant in Hungary. While there is a presumption of state protection, this presumption can be rebutted with clear and convincing evidence that protection would not be forthcoming to the claimant.

[48]   I note that the State is one (1) of the agents of persecution in this case and in concert with the legislation described above, has taken steps to erode mechanisms through which members of the LGBTI community can seek recourse for discrimination and hate crimes.

[49]   Sources indicate at Item 2.1 of the National Documentation Package for example that in December 2020 parliament voted to abolish the equal treatment authority which is viewed by LGBTI groups as the one (1) of the few remaining public bodies that deliver decisions against discrimination based on sexual orientation and gender identity.

[50]   Moreover, although law prohibits discrimination based on sexual orientation as well as certain forms of hate speech and prescribes increased punishment per violence against members of the LGBTI community.

[51]   NGOs representing the LGBTI community reported at Item 2.1 of the National Documentation Package that police officers continued to resist classifying incidents as hate speech and were unfamiliar with police hate crime protocols.

[52]   Sources cited at Item 6.1 of the National Documentation Package described a 2008 case where Molotov cocktail attacks against LGBTI venues were initially investigated by the police as hooliganism rather than hate crimes.

[53] Likewise, sources cited at Item 6.1 of the National Documentation Package indicate that the government does not have a coordinated strategy or action plan to counter discrimination against sexual minorities. I thus find that the presumption of state protection has been rebutted.

Internal Flight Alternative

[54]   With respect to an internal flight alternative, I do not find that the claimant can live safely in any part of Hungary. The government has stripped members of LGBTI community of their rights throughout the country. I find that discrimination and persecution against transgender people is prevalent throughout Hungary. I find that the claimant faces a serious possibility of persecution throughout the country. In my view there is no viable internal flight alternative available to the claimant.

CONCLUSION

[55]   For these reasons I find that the claimant is a Convention refugee and I accept her claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Japan

2021 RLLR 20

Citation: 2021 RLLR 20
Tribunal: Refugee Protection Division
Date of Decision: April 8, 2021
Panel: Kari Schroeder
Counsel for the Claimant(s): Albert Chiu
Country: Japan
RPD Number: VB9-09766
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000086-000089

DECISION

[1]     MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX as a citizen of Japan who is claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.

[2]     In rendering a decision today, I have applied the Chairperson’ s Guideline on Sexual Orientation and Gender Identity and Expression. The following is a brief synopsis of the claimant’s allegations.

[3]     The claimant is a transgender woman, she was diagnosed with gender identity disorder in 2009 in Japan and underwent two (2) years of psychotherapy. She had gender reassignment surgery in Thailand in 2011. The claimant has also been diagnosed with High-Functioning Autism spectrum and disorder. The claimant came to Canada in 2016 as a temporary worker. She claimed refugee protection in 2019. The claimant fears returning to Japan to face discrimination and harassment as a transgender woman.

[4]     I find that the claimant is a Convention refugee pursuant to Section 96 of the Act for the reasons that follow.

[5]     The claimant’s identity today has been established through a certified copy of her passport on file before me.

[6]     In terms of credibility, I’ll note that there is a presumption of truth applied to all refugee claimants unless there is a reason to doubt their allegations, and today I had no concerns arising from the claimant’s testimony. She testified in a direct and straightforward manner with no attempt at embellishing the evidence, there were no material discrepancies between her testimony and her Basis of Claim form. I note that the claimant has been diagnosed with autism and so she did sometimes take some time to respond to my questions, but I found this did not impact her credibility. The claimant testified that she began hormone replacement therapy in 2009 but that she had to purchase the hormones from Thailand as it was difficult to find in Japan. Similarly the claimant underwent surgery in Thailand after visiting different doctors in Japan. She testified that there were few doctors who would be able to perform the surgery for her. After she transitioned and retuned to Japan, she testified to always feeling that something was wrong, and that people treated her differently. Ultimately she did not feel safe and made the decision to leave Japan. She also faced discrimination in employment because she was transgender. I have documentary evidence before me, including medical reports confirming the gender reassignment surgery in 2011 and a copy of the two (2) birth certificates showing the change in gender. Based on the evidence before me I accept the claimant’s allegations as credible.

[7]     I find that there is a Nexus to the Convention ground in this case, namely membership in a particular social group that the claimant is a transgender woman.

[8]     I have considered whether there is an issue with subjective fear given that the claimant did not claim refugee protection right away after entering Canada. She testified that she came as a worker and her intent was to leave Japan which she did after researching many different options for many different countries. She was able to obtain an open work permit in Canada and for a time felt that she would be able to remain. However, after experiencing some difficulties with employment, including sexual harassment by her employer she realized that she may have to return to Japan, and it was at that point she visited a non-profit organization and learned about making a refugee claim. And so I find that the claimant was making attempts to remain in Canada and that her failure to claim when she arrived in Canada does not detract from her subjective fear.

[9]     I have reviewed the objective evidence before me, and I also find that it also corroborates the claimant’s allegations. While it is possible in Japan to change one’s gender legally, the requirements are complex, discriminatory and restrictive. The law requires transgender persons to be without reproductive capacity, effectively requiring surgical sterilization for most persons in order to have their gender identity legally recognized. They also must meet additional conditions, including undergoing a psychiatric evaluation and receiving a diagnosis of gender identity disorder. Which I’ll note that the World Health Organization has formally removed from the mental disorder section of the international classification of diseases. The person has to be unmarried and over the age of 20 and cannot have any children younger than the age of 20. On January 23rd the Supreme Court ruled on a suit that was filed in 2016, that ail of the above requirements were constitutional.

[10]   According to the US Department of State report, there is no law prohibiting discrimination based on sexual orientation or gender identity, there are no penalties associated with such discrimination either. In February the Tokyo District County dismissed a damage suit against one (1) university which was filed by the parents of a student who fell from the school building in 2015 after his classmates without his consent disclosed that he was gay, and the court declared that the university bore no responsibility for the death. The report also notes that the Ministry of Justice received 33 inquiries about potential human rights violations based on sexual orientation and gender identity in 2018. And LGBT advocacy organizations reported several instances of discrimination, outing, bullying, harassment, and violence. The stigma surrounding LGBT persons remained an impediment to self-reporting of discrimination or abuse.

[11]   I have several other country condition documents which have been submitted by counsel which confirm the claimant’s allegations and I’ll read some excerpts of these documents into the record. One document confirms that Japan does not prohibit discrimination explicitly based on sexual orientation or gender identity neither in employment or in other fields. Additionally, Japan does not explicitly protect LGBT individuals against violence, while hate crime and hate speech at least based on sexual orientation is criminalized in a majority of other democratic countries. Japan does not legally recognize same-sex partnerships meaning that same-sex couples are deprived of many of the pecuniary rights to which married couples are entitled. Same-sex partners are not given equal access to joint adoption and medically assisted insemination.

[12]   One document confirms that legal LGBT inclusivity in Japan has improved over the past (2) decades but at a modest pace. Since 1882 the Penal Code does not penalize consensual same-sex sexual acts and has mentioned since 2004, transgender individuals are allowed to change their gender marker in the civil registry. However, as an edit above legal gender recognition is conditioned on several discriminatory conditions such as sterilization. In recent years regional human rights courts and other rights bodies have found that these legal requirements of Japan violate international human rights law. In 2013 the United Nations Special Rapporteur noted that transgender people being required to undergo unwanted sterilization surgeries as a prerequisite to enjoying legal recognition of their preferred gender was a human rights violation and called on governments to prohibit the practice.

[13]   And so based on the review of the evidence I find that the instances of discrimination, harassment, and violence experienced by many LGBT people in Japan rise to the level of persecution. I find that the conditions imposed on transgender persons in Japan are persecutory. The claimant testified that if she returned to Japan she would feel compelled to hide her identity as she did before which in and of itself is inherently persecutory. And so based on the evidence before me I find that the claimant would face more than a mere possibility of persecution in Japan. I find that the level of discrimination she would face in employment, accessing healthcare and other services as well as the threat of harassment and violence is sufficiently serious to be persecution.

[14]   I have considered whether there is state protection available to the claimant and I find that there is not. States are presumed to be capable of protecting their citizens and this is particularly the case in a democratic country such as Japan where human rights are generally respected. The evidence shows there has been some progress made with respect to LGBT rights generally, including one (1) example in an Amnesty International report of a gay couple who had been approved as foster parents in Osaka. However, a review of the overall evidence shows that there is still little to no legal protections particularly for transgender persons in Japan. As I mentioned same-sex marriage is still illegal, there are no laws protecting LGBT persons from discrimination and so employers and healthcare providers are free to discriminate against people with diverse sexual orientation and gender identity with little recrimination. There are no laws protecting against hate speech and hate crime which is a market difference from other similarly democratic countries. And finally the conditions upon which a person is able to legally change their gender are State sanctioned and have been upheld by the Supreme Court. I therefore find that state protection would not be forthcoming to the claimant in this case.

[15]   And finally as the conditions facing LGBT people in Japan are the same throughout the country, I find that there is no internal flight alternative available to the claimant in this case.

[16]   In conclusion, I find that the claimant is a Convention refugee pursuant to Section 96 of the Act and the Immigration and Refugee Board of Canada therefore accepts her claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Lebanon

2021 RLLR 19

Citation: 2021 RLLR 19
Tribunal: Refugee Protection Division
Date of Decision: April 9, 2021
Panel: Aamna Afsar
Counsel for the Claimant(s): Kay Scorer
Country: Lebanon, Tunisia
RPD Number: VC0-01284
Associated RPD Number(s): VC0-01276
ATIP Number: A-2022-00665
ATIP Pages: 000078-000085

DECISION

[1]     MEMBER: So, XXXX XXXX XXXX and XXXX XXXX, I am accepting both of your claims for refugee protection.  I just… I need to read my decision, which sometimes takes a few minutes because I have to go through all the legal tests and the evidence and so if you just bear with me for a few minutes, and then afterwards, if you have any questions, you are more than welcome to ask them, but you have experienced Counsel representing you, so I am sure that they will be more than capable of answering all of your questions. All right.

INTRODUCTION:

[2]     These are the reasons for the decision in the claims of XXXX XXXX, who is the principal claimant, who claims to be a citizen of Lebanon and XXXX XXXX, who is the associate claimant and who claims to be a citizen of Tunisia, they are seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

ALLEGATIONS:

[3]     In their Basis of Claim forms and during their testimony at the hearing, the claimants alleged that they fear being harmed by members of society and the state in their respective countries of reference as a result of their membership in the SOGI community.

DETERMINATION:

[4]     I find that the claimants have established that they face a serious possibility of persecution in their respective countries of reference on the basis of a convention ground, which is membership in a particular social group, specifically that being members of the SOGI community and I therefore find that they are convention refugees.

DECISION:

[5]     In coming to my decision, I have considered and applied Chairperson’s guideline 4 – women refugee claimants fearing gender-related persecution and guideline number 9 – proceedings before the IRB involving sexual orientation and gender identity and expression.

ANALYSIS:

[6]     IDENTITY: I find that the claimants’ identities have been established by the documents on file, namely certified copies of their passports. I will note that some of the principal claimant’ s identification documents list his name as XXXX XXXX. That is the name the principal claimant was born with. However, the principal claimant has undergone an official legal name change. There is a certificate of legal name change from the Province of British Columbia on file that indicates that the principal claimant’ s legal name has been changed from XXXX XXXXtoXXXX XXXX XXXX.

[7]     1E AND COUNTRIES OF REFERENCE: The principal claimant is a national of Lebanon and no other country. The principal claimant has a passport from Lebanon, even though he was born and raised in Kuwait. He testified that he has Lebanese nationality because both of his parents are Lebanese nationals.

[8]     According to NDP on Kuwait, the principal claimant would not be entitled to nationality in Kuwait by birth because his father is not Kuwaiti. Nationality could be conferred through naturalisation; however, it is not automatic. It requires a fulfillment of a series of criteria. This alone, however, does not lead to the granting of nationality. Once the criteria are fulfilled, then the granting of nationality remains discretionary on the part of the authorities in Kuwait. When I consider the Williams test in conjunction with the evidence before me, I find that the principal claimant is not… is not currently a national of Kuwait and does not have a right to citizenship in Kuwait.

[9]     The associate claimant is a national of Tunisia and no other country. She was born and raised in Tunisia and moved to Kuwait in 2005 and lived there until coming to Canada in 2019. As a result, she has no birthright to nationality in Kuwait and has not lived long enough in Kuwait to be able to apply for nationality according to the NDP, which requires a residency requirement of 20 years. Furthermore, as previously mentioned, the granting of nationality is discretionary on the authorities and therefore, even if she met the resident residency requirement, acquiring nationality would not be within her control.

[10]   The principal claimant lived in Kuwait his whole life and the associate claimant lived in Kuwait since 2005. They testified that they had temporary status linked to their employment in Kuwait that needed to be renewed yearly. They also did not have the same rights as those who are nationals of Kuwait.  The NDP on Kuwait indicates that there is no permanent residency status in Kuwait, only temporary status. Given the foregoing, when I consider the Zeng test, I find that the claimants do not have status in Kuwait sufficiently similar to that or substantially similar to that of a national of Kuwait. I therefore do not have to consider whether the claimants are excluded from refugee protection pursuant to Article 1E of the convention. As a result of the foregoing, I will assess the claimant’ s claims against Lebanon in the case of the principal claimant and Tunisia in the case of the associate claimant.

[11]   CREDIBILITY: I find that the claimants are credible. When a claimant swears a truth of certain allegations, this creates a presumption that those allegations are true, unless there would be a reason to doubt the truthfulness. This is Maldonado in 1980 Federal Court of Appeal. The presumption of truthfulness has not been rebutted in this case. The claimants testified in a straightforward manner. There were no material inconsistencies in their testimony or contradictions between their testimony and the other evidence before me. I find that the claimant’ s allegations are heavily corroborated by the personal documents on file, including witness letters and the objective country evidence.

[12]   SUBJECTIVE FEAR: I find that the claimants have established that they have a subjective fear of returning to their respective countries of reference. The claimants arrived in Canada on XXXX XXXX, 2020, and their BOCs were signed on XXXX XXXX XXXX 2020. I find that there has been no delay in their claims when they arrived in Canada. I note that, according to the principal claimant’s passport, he had multiple tourist visas to Europe and the UK and travelled to Europe between 2014 and 2018 and he did not claim asylum during those trips. I asked the principal claimant whether he had considered applying for asylum during those trips abroad and he explained that at that time, he was always with his family and that he was not free to claim asylum. I accept that this is a reasonable explanation, in spite of the fact that the claimant did not seek asylum in Europe and consequently find that because this explanation … I consequently find that this reasonably explains why the claimant did not claim asylum on those trips abroad and as a result, his failure to claim asylum does not undermine his subjective fear.

[13]   I also note that the principal claimant’s claim is in part as a result of years of mistreatment by society, including his family and as a result of his gender identity. It was in 2019, that his family were pressuring him to marry a man of their choice and assaulted the principal claimant as a result of his refusal.  It is accumulation of a life lived and this added pressure that let the claimant to flee to Canada and when I consider ail of the evidence, I find that the claimant has established that he faces a subjective fear of returning to Lebanon.

[14]   The associate claimant similarly travelled outside of Tunisia, including a trip to France in 2019. Again, I find that the associate claimant’s claim is as a result of a cumulative experience and not necessarily an acute event. When I consider the whole of the evidence, the circumstances of the associate claimant, the fact that she has not returned to Tunisia and claimed asylum within days of entering Canada, I find that her failure to claim asylum in France in 2019 does not undermine her subjective fear. I find, as a result, she has established that she faces a subjective fear or has a subjective fear of returning to Tunisia. The facts established on the balance of probabilities, given that I find that the claimants are credible, I find that they have established the principal claimant is a transgendered man. The associate claimant identifies herself as a straight girl or straight woman, who is a relationship with the transgendered man. The claimants met in Kuwait in 2017 and soon began a romantic relationship. They have been in a committed relationship ever since and they plan to marry.

[15]   They both identify as members of the LGBTQ community and have been active members of that community with different groups while in Canada.

[16]   NEXUS: I find that the claimants have established a nexus with their fear of harm on a convention ground of membership in a particular social group, members of the SOGI community. I will therefore assess their claims pursuant to section 96 of IRPA.

[17]   SECTION 96 ANALYSIS: Pursuant to section 96 of IRPA, a convention refugee is a person who is outside of their country of nationality, has a well-founded fear of being persecuted on the basis of one of the five convention grounds and where they cannot avail themselves of the protection of their country. For the following reasons, I find that the claimant’s meet these criteria and are therefore convention refugees.

[18]   WELL-FOUNDED FEAR OF PERSECUTION: Objective evidence, in considering the objective evidence in relation to the claimant’s profiles, I find that the claimants face a serious possibility of harm if they return to their respective countries of reference. I will assess the country conditions separately, given that each claimant is claiming against a separate country.

[19]   I will begin with the principal claimant’s claim in relation to Lebanon. The NDP indicates unequivocally that there is intolerance in Lebanon for diverse sexual orientations or gender expressions and people within the SOGI community face criminalisation and discrimination. According to NDP 6.2, Lebanon still holds Article 534 of the Penal Code in practise, which condemns unnatural intercourse by up to one year of imprisonment. The use of this Article creates a basis for prosecuting non-normative sexual orientations and gender identities.  Members of the SOGI community face arrest. The most common patterns for arrest are based on an individual, who visually does not conform to gender norms. Criminalising homosexuality limits the right to protection for members of the SOGI community. Individuals with non-normative SOGIs can rarely seek legal protection as their identities might be revealed, which will automatically lead to investigation.

[20]   The most common pattern that individuals have to deal with is blackmail by individuals who declare to use the information to SOGI status against them. According to NDP 6.4, sexual minorities in Lebanon are less persecuted in Lebanon than elsewhere in the Middle East; however, they remain ostracised by society except in perhaps affluent areas of the capital of Beirut. However, even in Beirut, members of the gay community must operate in secrecy. The NDP indicates that homosexuality is still strongly condemned in Beirut. The founder of an LGBT NGO and activist stated that, despite the gay nightlife in Beirut, gays frequently suffer from physical and psychological abuse in private. This activist indicated that LGBT people are sometimes forced to stay at home, forced into marriage, or beaten by members of the family. According to NDP 6.3, who… that related experience of a transgendered woman, that woman indicated that she faced systemic discrimination in education, employment, housing, and the provision of healthcare in Lebanon. The NDP also indicates that transgendered women in particular also are at greater risk of arbitrary arrest, arrests and questioning at checkpoints and are… which are often accompanied by physical violence by law enforcement officials.

[21]   Transgendered women also face routine violence and the threat of violence by members of the public and are denied police protection, which compromises their ability to live in safety and positions them in a perpetual state of precarity and this discrimination against transgendered women emanates from severe social stigma and isolation. It is exacerbated by the lack of resources that are tailored for trans­ people and by their difficulty in obtaining identification documents that reflect their gender identity and expression, I appreciate that the claimant before me is a trans-male. However, I find that this NDP that does speak specifically about transgendered women, talks about … provides evidence with respect to the experience of individuals from the trans-community. When I consider the principal claimant’s personal circumstances in conjunction with his objective… with the… in conjunction with the objective evidence. I find that there is a serious possibility that you will face systemic discrimination and possibly criminal sanctions as a result of his gender identity, if he were to return to Lebanon.

[22]   I will now turn to Tunisia in relation to the forward-facing risk faced by the associate claimant. The experience of the members of the SOGI community appears to be largely the same in Tunisia relative to that of members of the SOGI community in Lebanon. According to NDP 6.1, homosexuality is taboo. It’s a taboo subject to Tunisia and as a result, people who are gay or lesbian in Tunisia keep quiet about their sexual orientation. Homosexuality is considered a disease of the West by conservative Muslims and Tunisian society associates homosexuality with pedophilia. Despite being discrete, gay people are assaulted in society and arrests since the revolution in 2011 had been on the rise.

[23]   Treatment in society includes a constant risk of arrest and blackmail, social outcast, and Joss family ties and job prospects.         Many LGBTI people experience rejection, discrimination, harassment and violence by their families and communities at every stage of their life. In mid-April of 2016, a Tunisian actor stated in the television interview that homosexuality is disease. LGBTI people live with constant fear of being arrested and prosecuted. In terms of treatment by authorities, the Minister of Human Rights and Transitional Justice in 2012 characterised homosexuality as a perversion that requires medical treatment.  Expression … expressing one’s sexuality is not a human right and that freedom of expression has limits. The Tunisian government rejected the recommendation by the UN Human Rights Council to decriminalise same-sex acts. The recommendation was viewed as incompatible with the laws and realities of Tunisian society. Consensual same-sex relations are criminalised under Article 230 of the Penal Code, which provides up to three years of imprisonment and a fine for sodomy and lesbianism.

[24]   According to Article 226 of the Penal Code, which criminalises indecency and acts deemed to be offensive to the public morals. That particular Article is used against transgender and gender non­ conforming people providing up to six months imprisonment. The true scale of the application of Article 230 is not known.  LGBTI organisations say that scores of mainly gay men are arrested every year. People are arrested because of their behaviour, their appearance and expression and when their appearance and expression seem to fit certain stereotypes of LGBTI people and “rarely because they are caught in the act.” To obtain proof of same-sex sexual activity, gay men are routinely subjected to anal examinations by forensic doctors after being arrested and upon a judge’s order. The impact of the laws that criminalise homosexuality creates a permissive atmosphere for hate crimes against people suspected of engaging in same-sex relationships or not conforming to gender norms, There is a little accountability and the police will often not investigate homophobic and transphobic crimes and will instead threaten survivors with prosecution for their perceived sexual orientation and gender identity. Many LGBTI people do not dare to report to authorities of violations and abuses they are subjected to. The authorities’ unwillingness to change these laws reflects a state-entrenched discrimination against LGBTI people.

[25]   When I consider the objective evidence in relation to the associate claimant, the associate claimant identifies as a straight girl or a straight woman. However, she is in a relationship with a transgendered male. She is also… she herself also identifies as a member of the LGBT community. I find that, according to Tunisian society, she would not be viewed as being in a normative heterosexual relationship. I find that she would also… I find that it would also be imputed that she is either not a heterosexual woman or at the very least not conforming with respect to norms relating to sexual orientation in Tunisia. In her BOC and in her testimony, she also alleges that she fears being harmed and killed by her family because she has dishonoured them. She said her brother has already threatened to kill her if she remains in a relationship with the principal claimant.

[26]   According to NDP 5.4, domestic violence is a serious problem in Tunisia and has reached alarming proportions in some neighbourhoods and areas. There does not appear to be a difference between rural and urban areas. I find that … when I consider the associate claimant’s circumstances as a whole, I find that both as a result of her imputed sexual identity and as a result of her family’s view that she has dishonoured them, that she faces a serious possibility of harm at the hands of state, society and her family members, who are personally affronted by her choice of romantic partner. Does the harm faced by the claimant amounts to persecution? I find that the harm faced by the claimants in their respective countries of reference does amount to persecution. To be considered a persecution, the mistreatment suffered or anticipated must be serious and constitute the denial of a basic human right.

[27]   Persecution can be considered the sustained or systemic violation of basic human rights. I find that for each of the claimants in their respective countries of reference, they cannot express their sexuality or their sexual orientation or their gender identity freely without facing either pervasive discrimination, criminal sanctions, or physical harm and I find that these constitute serious violations of their basic human rights and amount to persecution.

[28]   STATE PROTECTION: I find that there is clear and convincing evidence before me that the state is unable to provide the claimants with adequate protection. States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown and responsibility to provide international or surrogate protection only becomes engaged when national or state protection is unavailable to the claimants. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens. Claimant is required to approach the state for protection if protection might reasonably be forthcoming; however, a claimant is not required to risk their lives seeking an ineffective protection of the state merely to demonstrate the ineffectiveness.

[29]   In the case of both claimants, the state is in part the agent of persecution and as a result, I find that state protection would not be forthcoming. In the case of the associate claimant and her allegations of retaliation or domestic violence as a result of her family disapproving of a relationship and her family feeling that she has dishonoured them, I find that she is particularly vulnerable and would not… and state protection would not be forthcoming because if she was to seek state protection, she would be outed as a person who is in a relationship with a trans-man and as a result of the fact that the state is… give me.. . I am trying to find the right word. Given that the state also participates in the persecution of individuals from the SOGI community, I find that state protection for her would not be forthcoming and as a result, I find … and I will also note that according to NDP 5.4, domestic violence victims who go to the police, there is evidence in that NDP that the police treat those domestic violence victims deplorably and primarily because there is a lack of training and a lack of desire to conduct an objective investigation. So, I find that, as a result of the objective evidence, that the vulnerability to the associate claimant is compounded, one because of her imputed SOGI status, but also because of the fact that she is a woman who would be facing amongst various forms of persecution, a domestic violence at the hands of her family and so, I find ultimately that the claimants have rebutted the presumption of state protection with clear and convincing evidence.

[30]   INTERNAL FLIGHT ALTERNATIVE: I have considered whether a viable internal flight alternative exists for the claimants. On the evidence before me, I find that there is no viable internal flight alternative for the claimants in either Lebanon or Tunisia. For an IFA to be viable, there must be no serious possibility that the claimants would face persecution or on the balance of probabilities face a section 97(1) harm in the putative IFAs. Further conditions in the putative IFAs must be such that it would not be unreasonable in all of the circumstances including those particular to the claimant in question for the claimants to seek refuge there.

[31]   Given that there are clear laws in both countries that criminalise same-sex relationships, homosexuality and that discrimination against members of the SOGI community is pervasive in both countries, I find that there is no safe place for the claimants to go in their respective countries and as a result, they do not have a viable IFA in their respective countries of reference.  Have the claimants established that they face a well-founded fear of persecution if they return to Tunisia and in the case of the associate claimant and to Lebanon in the case of the principal claimant? As a result of their particular circumstances, the objective country evidence before me including the lack of adequate state protection and Jack of viable IFA, I find that the claimants have established that they face a well-founded fear of persecution if they return to Tunisia or to Lebanon and in conclusion … and I should state that more clearly that I find that, they face a serious… a serious possibility that they have a well-founded fear of persecution in their respective countries of reference. So, in the case of the associate claimant, that’s Tunisia. In the case of the principal claimant, it is Lebanon.

[32]   CONCLUSION: Based on the analysis above, I conclude that the claimants are convention refugees and accordingly, I accept their claims.

[33]   So, to XXXX XXXX XXXX and XXXX, I wish you both the very best and thank you, Counsel, very much for your assistance and I wish everyone a very good day.

———- REASONS CONCLUDED ———-

Categories
All Countries Bahamas

2021 RLLR 18

Citation: 2021 RLLR 18
Tribunal: Refugee Protection Division
Date of Decision: June 8, 2021
Panel: David Jones
Counsel for the Claimant(s): Nicholas Woodward
Country: Bahamas
RPD Number: VC0-03417
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000074-000077

DECISION

[1]     On June 8, 2021 the Refugee Protection Division (RPD) heard the claim of XXXX XXXX XXXX aka XXXX XXXX, who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral POSITIVE decision and reasons for decision. This is the written version of the oral decision and reasons that have been edited for clarity, spelling, grammar and syntax, where appropriate. At the request of counsel for the claimant and with the direction of the presiding member, paragraph 1 of the decision was amended to correct an error in the spelling of the claimant’s name. The error in the spelling of XXXX has been corrected with thestrikethrough function and has been underlined to note the amendment of the transcript and replaced with the correct spelling of XXXX

[2]     MEMBER: This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada in the claim of XXXX XXXX XXXX, originally filed under the name XXXX XXXX XXXX (ph) who is a citizen of the Bahamas seeking refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. I also reviewed and applied the Chairperson’s Guideline on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[3]     The claimant fears persecution if she were to return to the Bahamas as a transgender person. Details of the claimant’s allegations can be found in the narrative attached to her Basis of Claim form and amendment to her narrative found at Exhibit 6. The following is a summary of allegations and testimony.

[4]     The claimant knew from a small child that her gender identity was not accurate, and she always saw herself as a girl. In 2016, the claimant came out to her family. I’m not going to detail all the incidents of abuse and discrimination described in her narrative, but I will note that it includes physical abuse from her father, receiving death threats after being in a documentary called the ‘The Underneath Transgenders in the Bahamas,’ numerous incidents of abuse at a workplace and being threatened with a knife while on a bus.

[5]     On XXXX XXXX 2019, a week after being threatened on the bus, the claimant applied for an ETA to come to Canada. The claimant did not have money to travel until she received assistance from a friend. On XXXX XXXX 2019, the claimant flew to Toronto. In June 2019 the claimant applied for refuge protection.

DETERMINATION

[6]     I find that the claimant is a Convention refugee.

ANALYSIS

Identity

[7]     The claimant’s identity as a citizen of the Bahamas has been established on a balance of probabilities by her Bahamian passport located at Exhibit 1.

[8]     The claimant was born in the Bahamas to Haitian parents. When the claimant was 18, she applied for Bahamian citizenship and in the process, she had to renounce her Haitian citizenship. A copy of her renunciation of Haitian nationality dated XXXX XXXX 2018, can be found at Exhibit 5. As such I find on a balance of probabilities that the claimant is a citizen of the Bahamas and no other country nor does she have status substantially similar to citizenship in any other country.

Nexus

[9]     The allegations establish a Nexus to a Convention ground for the claimant based on her particular social group, namely as a transgendered person.

Credibility

[10]   I find on a balance of probabilities that the claimant is a transgender person. In making that finding, I’m relying on the principle that a claimant who affirms, to tell the truth, creates a presumption of truthfulness unless there are reasons to doubt their truthfulness. In this regard, the claimant testified in a consistent and straightforward manner that was consistent with her Basis of Claim form narrative and supporting documents. The claimant was able to speak about her experience with the difference between Canada and the Bahamas, her experiences with transphobia including violence in the work, at school, at home, and out in the public. The consequences of living openly in the Bahamas, the lack of legal protection against discrimination, the transphobic attitudes of the police, and the claimant answered specific questions when asked. There are no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence. I find that the claimant was a credible witness.

[11]   The claimant also provided documents to support her claim. For example, Exhibit 5 contains eight (8) letters in support of the claimant including from the claimant’s doctor in the Bahamas as well as friends and colleagues both in the Bahamas and in Canada. Exhibit 5 also contains (inaudible) news articles of the claimant participating in a pride event, Ontario documents related to her name change and change of gender designation, and other photographs of the claimant. I have no reason to doubt the genuineness of these documents as it relates to the claimants’ gender identity and expression which is what puts her at risk. I give great weight to these documents to support the claimant’s allegations and overall claim. As such I find that the claimant has established on a balance of probabilities the facts alleged in the claim including a subjective fear of return to the Bahamas.

Objective Basis

[12]   The objective evidence supports the claimant’s fears of returning to the Bahamas. As background, the US Department of State Report for the Bahamas found at Item 2.1 in the National Documentation Package as found at Exhibit 3 indicates that the law does not provide anti-discrimination protections to LGBTI individuals on the basis of their sexual orientation, gender identity, gender expression, or characteristics and that LGBTI individuals face a social stigma and discrimination and were not adequately protected by law enforcement authorities. A response to information request found at Item 6.1 quotes a source that describes the Bahamas as a place where “hypermasculinity is valued and black men especially are expected to perform their masculinity in compliance with the hegemonic norm. Openly gay men, feminine men, or transgender people are seen as betraying manhood. These values are rigidly policed, and it is culturally acceptable to exert physical violence against men who betray these gender norms.”

[13]   That RIR cites other sources to indicate that the LGBTQ people feel being open about their gender identity or sexual orientation in the Bahamas due to fear of ostracization and physical violence. The RIR also indicates that LGBTQ people have been subject to violence including killings and that a lot of that violence goes unreported. Finally, the RIR further indicates that the police do not have any specific anti­LGBT policies. Individual officers often deride ridicule and abuse to LGBTI people who attempt to report violence against themselves and community members. The claimant also provided 14 news articles and reports found at Exhibit 5 to support her claim. These include articles about the Canadian government warning LGBTQ people about traveling to the Bahamas given the anti-LGBTQ sentiments in the country and the risk of violence. Other news articles describe specific incidents of violence including murder and attempted murder charging LGBTQ people in the Bahamas. Based on the totality of the evidence, I find that the claimant has established a well-founded fear as well as a serious forward-facing risk of persecution if she were to return to the Bahamas.

State Protection

[14]   With respect to state protection, the state is presumed capable of protecting its citizens and the claimant must establish on a balance of probabilities through clear and convincing evidence that the country’ s protection is inadequate. Given the country conditions noted above including the indifference of the authorities to crimes against LGBTIQ persons, I find that there is adequate state protection available to the claimant. The claimant’s testimony and narrative reflect the country’s conditions and its regard as the claimant has successfully attempted to obtain protection from the police and she described in her testimony that there is no one that she can seek protection from and that she has never been protected in the Bahamas. I find that the claimant has rebutted the presumption of state protection with clear and convincing evidence.

Internal Flight Alternative

[15]   Give the country conditions outlined and above and the claimant’s testimony regarding the conditions being the same throughout the Bahamas and the small size of the country. I find that the claimant would face a serious possibility of persecution throughout the country. Currently, I find there’s no internal flight alternative available to the claimant.

CONCLUSION

[16]   For the foregoing reasons, I determine the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act and the Board, therefore, accepts the claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Russia

2020 RLLR 17

Citation: 2021 RLLR 17
Tribunal: Refugee Protection Division
Date of Decision: July 9, 2021
Panel: Megan Kammerer
Counsel for the Claimant(s): Samuel E. Plett
Country: Russia
RPD Number: VC0-03444
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000066-000073

On July 9, 2021 the Refugee Protection Division (RPD) heard the claim of XXXX XXXX XXXX A.K.A. XXXX, who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral POSITIVE decision and reasons for decision. This is the written version of the oral decision and reasons that have been edited for clarity, spelling, grammar and syntax, where appropriate.

DECISION

[1]     MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, who also goes by the chosen name of, XXXX XXXX, and is referred to as “the claimant” in this decision, as a citizen of Russia, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[2]     In assessing this claim, I considered and applied the guidelines on sexual orientation and gender identity and expression; the SOGIE Guidelines, to ensure that appropriate accommodations remain in questioning the claimant, the overall hearing process, and in substantively assessing the claim.

Allegations

[3]     The claimant alleges that they identify as a non-binary transgender person. They allege that they face persecution in Russia due to both their gender identity and because they are a person born biologically male and are married to another person who is male. The claimant alleges that they fear persecution and violence from Russian authorities, members of the public, and their family.

Determination

[4]     I find that the claimant has a well-founded fear of persecution and is, therefore, a Convention refugee under section 96 of the Act.

ANALYSIS

Identity

[5]     I find that the claimant’s identity as a national of Russia has been established on a balance of probabilities by their testimony and a copy of their passport.

Credibility

[6]     When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is a reason to doubt their truthfulness. In this case, I have found no reason to doubt the claimant’s truthfulness. The claimant testified in a straightforward and convincing manner and answered all of the questions posed to them.

[7]     The claimant was able to speak in detail about their gender identity and their process of self-discovery, what it is like as a trans-gendered person in Russia, the discrimination they faced in Russia as a child, and the risks that they would face if they were to return to Russia.

[8]     In addition, the claimant has provided an extensive number of documents which corroborate their claim. These include the following: various documents which establish the ongoing spousal relationship between the claimant and their Canadian spouse, XXXX, including bene-fit payments, car insurance, property assessments, and mobile account information; various photographs depicting the claimant with their Canadian spouse, XXXX. There are a number of different photographs of different events in 2019 and 2020, including the claimant and XXXX wedding; an affidavit sworn by the claimant’s biological father, which corroborates the claimant’s allegations, and which outlines how and when the claimant disclosed their gender identity and relationship with XXXX to him in 2018; an affidavit sworn by the claimant’s stepmother, which corroborates the claimant’s allegations, which confirms that she and the claimant’ s father are aware of the claimant’s gender identity and consider it genuine, and which outlines how distressed and fearful the claimant was when they learned they may have to return to Russia; an affidavit of support from the claimant’ s mother, which generally corroborates the claimant’ s allegations and which confirms that she is aware of the claimant’s gender identity and is aware of the claimant’s relationship with XXXX; an affidavit of support from a friend of the claimant. The friend attests that she knows the claimant as a non-binary, transgender person, and provides evidence about her experiences living as a gender non-conforming person in Russia; an affidavit of support from the claimant’s former partner, XXXX XXXX (ph), which generally corroborates the claimant’s allegations, attests to the fact that they were in a romantic relationship before the claimant left Russia, and confirms that they had plans to both leave Russia, so that they could be together in another country; a letter of support from a representative of the XXXX XXXX XXXX. which provides services and supports to families in Oakville, Ontario. The representative confirms that the claimant identified themselves as non-binary when registering for this support, and that they seem pleased that other staff and volunteers were so accepting of their identity; a letter of support from a clinical psychologist who treated the claimant in the United States. Psychologist confirms that the claimant had a series of appointments in XXXX and XXXX 2019, which centred on issues of gender identity and the claimant’s fear of having to return to Russia. The psychologist confirms that during this time the claimant presented openly as transgender and that they explored the claimant’ s “journey to discover their gender identity as transgender and non-binary”. The psychologist states that in his professional opinion —

COUNSEL: Madam Member, I don’t mean to interrupt, but it looks like the claimant’s video is frozen.

MEMBER: Can you still hear me?

CLAIMANT: I can hear, yeah.

COUNSEL: Okay.

MEMBER: Okay.

COUNSEL: It’ s just your video’ s frozen.

MEMBER: I’ll continue on.

COUNSEL: Yeah.

MEMBER: I’ll continue on, but if at some point you ‘re not able to hear or you cut out, please try to let us know.

CLAIMANT: Okay.

COUNSEL: If — if — if your audio cuts out, just come to the office where I am and then I’ll let the Member know.

CLAIMANT: Will do, yeah.

COUNSEL: Thank you.

[9]     MEMBER: Okay. The psychologist states that in his professional opinion, the claimant’s expression of their gender identity as transgender and non-binary is genuine; a letter of support from the claimant’s physician in Canada, which confirms that when taking their initial health history, the claimant identified themselves as a non-binary person and mentioned potentially being interested in gender affirming therapy; a letter of support from the claimant’s former academic advisor in the United States, which generally confirms the claimant’s allegations; a letter of support from a friend of the claimant and their spouse, who attests to the fact that he often drove XXXX to the United States to meet the claimant, and that he was present at their wedding; a letter of support from a friend of the claimant, which indicates that they came out as transgender in 2019, and which indicates that the claimant is a XXXX of a XXXX called XXXX XXXX, which provides support and advocacy to transgender and non-binary individuals; a letter of support from a co-worker and friend of the claimant which confirms that he and claimant have discussed their gender identity and fear of returning to Russia as a LGBTQ+ person; and, a letter of support from a close friend of the claimant in the United States, which generally confirms the claimant’s allegations.

[10]   The claimant also indicated that their spouse, XXXX, was available to act as a witness. I did not find it necessary to ask XXXX to testify, given the extensive documentary evidence submitted and the credible nature of the claimant’s testimony. I note that the claimant did not initiate a refugee claim in the United States even though they lived in that country for several years. They explained that this is because their spouse is Canadian and that they did not want to be separated from their spouse for the length of time it would take for their claim to be processed.

[11]   The claimant also explained that the political climate in the United States at the time was negative and hostile towards LGBTQ+ persons and that they were afraid of being detained in unsafe conditions, given their status as a gender non-conforming individual. I accept this explanation and do not find that it undermines the claimant’s credibility or subjective fear.

[12]   I note as well that the claimant has visited their mother in France and did not make a refugee claim there. The claimant explained that this was because they did not want to be separated from their Canadian spouse. I accept this explanation and do not find that it undermines the claimant’s credibility or subjective fear.

[13]   I find the claimant to be credible and I believe what they have alleged in support of their claim.

Nexus

[14]   The claimant alleges that they are at risk, due to both their gender identity and their perceived sexual orientation. I find that the persecution the claimant fears has a nexus to the Convention ground of particular social group; namely, transgendered individuals and individuals who are perceived to be LGBTQ+. I have, thus, assessed this claim under section 96 of the Act.

The Claimant’s Status in the United States

[15]   The claimant lived in the United States from 2012 until 2019, during which time they were enrolled in a graduate program at the University of Massachusetts. The claimant testified that they had a student visa and has provided a copy of a certificate of eligibility for non-immigrant student status, as well as various other documents confirming their immigration status.

[16]   The claimant testified that they became scared about the possibility of having to return to Russia when they graduated from their university program because they did not have permanent status in the United States, and that they explored the possibility of obtaining and employment visa; although this was ultimately unsuccessful.

[17]   I find that the clamant does not have status substantially similar to that of a national or access to such status in the United States, and is, therefore, not excluded pursuant to Article 1(e) of the refugee Convention. I note that the claimant’s father is an American citizen and has been living in the United States since approximately 1997, and that the claimant’s mother is a citizen of France and has been living there since approximately 2010.

[18]   The objective evidence in the National Documentation Packages for both countries indicates that the claimant, as an adult, does not have a right to citizenship of either country by a virtue of the parent-child relationship.

[19]   I, thus, find that neither the United States nor France is a country of reference in this claim.

Well-Founded Fear of Persecution

[20]   The claimant identifies as a non-binary transgender person. They testified that their earliest memories are of being gender non-conforming and recounted being bullied and harassed at school for presenting as too feminine. The claimant explained that they started the process of discovering their identity when they started college in Russia through exposure to the internet and Western sources.

[21]   The claimant testified about the process of discovering their transgender identity and the role that their spouse, XXXX, played in that process. They reference the fact that they had experienced a lot of pressure to conform throughout their life and that XXXX was the first person who they could talk to about their gender identity and who supported their self-discovery.

[22]   The claimant testified about the risks they would face if they were to return to Russia. They indicated that transgender people who do not fit into gender norms are at risk of physical violence. They reference being aware of several cases where transgendered people have been killed or injured due to their gender identity. They also indicated that, in general, Russian society is very hostile to transgender people and that their family in Russia would not be accepting of their identity.

[23]   The objective evidence demonstrates that LGBTQI+ peoples, including those who are transgender and those who are perceived to be homosexual, face treatment in Russia that amounts to persecution. Although homosexuality has been decriminalised in Russia since 1993, in 2013, a law banning the promotion of “non­ traditional sexual relations” came into force.

[24]   Sources cited Item 6.1 of the National Documentation Package indicate that the law is frequently invoked to punish the exercise of free speech by LGBTQI+ persons and their supporters. The government uses a law to restrict any materials that directly or indirectly approve of persons who are non-traditional sexual relationships and to limit the rights of persons who advocate for LGBTQI+ rights or express the opinion that homosexuality is normal.

[25]   The United States Department of State Item 2.1 of the National Documentation Package identifies crimes involving violence or threats of violence against LGBTQI+ persons as one of the most significant human rights issues in Russia. There are reports of State actors committing violence against LGBTQI+ persons based on their sexual orientation or gender identity. There are also reports of government agents attacking, harassing, and threatening LGBTQI+ activists. Sources cited at Item 6.1 of the National Documentation Package further indicate that state controlled media engages in a “homophobic campaign”, which is directed against LGBTQI+ persons. Reports have identified a number of recurring themes and mainstream media coverage in Russia, including statements by public officials that portray LGBTQI+ identities as contradictory or Russian and Orthodox values and as a Western phenomenon imposed by Europe as part of an agenda to weaken and alienate Russia.

[26]   The UK Home Office at Item 6.4 of the National Documentation Package reports that politicians use transphobic hate speech, which encourages stigma and intolerance amongst the population. Sources indicate that LGBTQI+ persons in Russia face discrimination and are exposed to the threat of violence in their places of study or work when searching for housing and when attempting to access medical care. This is so, even if an individual is not officially out, but simply presents as gender non-conforming. According to one source cited at Item 6.1 of the National Documentation Package, “even if LGBT individuals are not officially out, it is enough for individuals to be suspected of being gay or lesbian for them to be the subject of verbal or physical abuse. Failing to adhere to established gender norms in dress or behaviour, being overly affectionate to someone of the same sex or living with someone of the same sex are tantamount to coming out and can thus result in the risks set out above.”

[27]   Sources indicate that medical practitioners limit or deny LGBTQI+ persons health services due to intolerance and prejudice. The Russian LGBT network representative cited at Item 2.1 of the National Documentation Package indicates that upon disclosing their sexual orientation or gender identity, LGBTQI+ individuals often encounter strong negative reactions and the presumption that they are mentally ill.

[28]   Sources cited at Item 2.1 of the National Documentation Package also indicate that transgender persons are uniquely vulnerable to discrimination. This is in part because transgender persons face difficulty updating their names and gender markers on government documents to reflect their gender identity and because the government has not established standard procedures, and many civil registry offices deny their requests. When documents fail to reflect their gender identity, transgender persons face harassment by law enforcement officers and discrimination in accessing health care, education, housing, transportation, and employment.

[29]   Moreover, the United States Department of State at Item 2.1 of the National Documentation Package, reports that the LGBTQI+ persons are particular targets of societal violence and that the police often fail to respond adequately to such incidents. For example, the Russian LGBT network reported that a transgender man was attacked while he was leaving a supermarket in the Kursk Region in April 2020. The assailant grabbed a man by the neck, beat him, and threatened to kill him. The man sustained serious injuries. Although he filed a report, the police did not investigate the incident and refused to open a criminal case.

[30]   There are numerous other similar examples of the failure of the authorities to respond when violence or credible threats of violence are made against LGBTQI+ persons, and these are cited in the National Documentation Package.

[31]   There are also reports that Item 2.1 of the National Documentation Package that the authorities have conducted involuntary physical exams of transgender persons, physically and sexual abuse transgender people, and subjected transgender individuals to detention, assault, harassment, and humiliating treatment. The UK Home Office reports at Item 6.4 of the National Documentation Package, that law enforcement personnel used violence and torture to extract confessions. As well, as is set out in the SOGIE guidelines, it is well-established in law that being compelled to conceal one’s gender identity or sexual orientation constitutes a serious interference with fundamental human rights, and a claimant cannot be expected to conceal their gender identity as a way to avoid persecution.

[32]   It is apparent that the claimant has engaged in a significant measure of behavioural self-censorship while living in Russia, they have been unable to live openly as a non-binary transgendered person in Russia. The objective evidence in the National Documentation Package is overwhelming regarding the persecution and ill-treatment of member of the LGBTQI+ community, which includes transgendered persons, such as the claimant. I find that the claimant would face a serious possibility of persecution by the government as Russia — of Russia, as well as from non-state actors, if they were to return to their country of nationality.

State Protection

[33]   I have considered whether adequate state protection is available to the claimant in Russia and conclude that it is not. A State is presumed capable of protecting its citizens to rebut this presumption, a claimant must establish on a balance of probabilities with clear and convincing evidence that their State’s protection is inadequate. In this case, I find it would be objectively unreasonable for the claimant to seek state protection in Russia because it is in part the State that the claimant fears due to its pattern of persecution and prosecution of sexual minorities.

[34]   Further, the objective evidence demonstrates that there is no government support for LGBTQI+ persons in Russia and that the law does not prohibit discrimination against LGBTQI+ persons in housing, employment, or access to government services such as health care.

[35]   I, thus, find on a balance of probabilities, that the State would be unwilling or unable to provide adequate protection to the claimant if they were returned to Russia. The presumption of state protection has been rebutted.

Internal Flight Alternative

[36]   I have also considered whether a viable Internal Flight Alternative exists for the claimant and find that it does not. The evidence before me indicates that transgendered persons are persecuted throughout Russia. I, thus, find that the claimant faces a serious possibility of persecution throughout the entire country. The claimant does not have an IFA.

CONCLUSION

[37]   For these reasons, I find that the claimant is a Convention refugee, and I accept their claim. All right. So that concludes my decision in your claim.

CLAIMANT: Thank you.

MEMBER: You — I want to thank you very much for participating in this hearing today, and I want to welcome you to Canada.

CLAIMANT: Thank you so much.

MEMBER: Yeah. Thanks as well to you, Counsel. So, what I’m going to do now, is I’ll stop the recording and then I will disconnect the proceedings.

COUNSEL: Thank you Madam Member.

———- REASONS CONCLUDED ———-