Citation: 2021 RLLR 30
Tribunal: Refugee Protection Division
Date of Decision: February 16, 2021
Panel: Jiyoung Kim
Counsel for the Claimant(s): Ashley Erin Fisch
Country: Brazil
RPD Number: TB9-25893
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000151-000154
DECISION
[1] MEMBER: This is the decision for the claimant XXXX XXXX XXXX XXXX, File Number TB9- 25893.
[2] I’ve considered your testimony and other evidence in the case, and I’m ready to render my decision orally.
[3] You’re claiming to be a citizen of Brazil and are claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act. For making this decision and in formulating questions for the hearing, I considered Chairperson’s guideline 9 with regards to proceedings before the IRB involving claims of sexual orientation and gender identity and expression.
[4] I find that are a Convention refugee for the following reasons;
[5] You allege the following;
[6] That you are citizen of Brazil, and that if you were to return, you will – you will face persecution because you are a member of a particular social group, as a transgender person.
[7] You allege that there is no state protection for you or an internal flight alternative.
[8] Your personal identity as citizen of Brazil has been established by your oral testimony, a copy of your passport, and your birth certificate, which can be found at Exhibit 1.
[9] I find that on a balance of probabilities that identity and the country of reference have been established.
[10] I find that there is a link between what you fear and one of the five Convention ground, which is your membership in a particular social group as a transgender person. Therefore, I assessed your claim under section 96.
[11] In terms of your general credibility, I found you to be a credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim Form. Your testimony was straightforward and was in keeping with your Basis of Claim Form. There were no significant inconsistencies or omissions that went to the heart of the claim. I therefore find the following to be credible;
[12] That you are a transgender person who faces persecution in Brazil because of your gender identity.
[13] Your oral testimony today included details regarding your process in coming to a realization about your gender identity as well as a medical process, and the process of the name change. You’ve described the hormonal therapy you had been receiving in Brazil and in Canada. You testified regarding the different NGOs you’ve worked with since you came to Canada, (inaudible) served the members of the LGBTQ+ communities. You’ve also testified about why you had to go back to Brazil in 2017 as you had to go through (inaudible) legal procedure of having your name changed. And I did not draw negative credibility inference on your (inaudible) based on your explanation.
[14] You’ve also testified regarding the difficulties and hardship you face in Brazil because of your gender identity.
[15] You’ve also provided documents in support of your claim, which can be found at Exhibit 4. These include a letter and a medical document from CAMH certification of the completion of high school, (inaudible) certification and photographs of you throughout your transitioning period. There are also documents from hospital in Brazil regarding your transition as well as a XXXX report.
[16] There are also documents regarding your legal process to change your name and gender in Brazil. You’ve also submitted letters from different NGOs in Canada, including 519, Friends of Ruby, and the Cyborg Circus Projects.
[17] Your testimony and the supporting documentation all establish, on a balance of probabilities that you are a transgender person.
[18] The country condition documents in the National Documentation Package for Brazil, which can be found at Exhibit 3, and the documents that counsel submitted on your behalf, which can be found at Exhibit 5, are consistent with your allegation that there is a serious possibility that you will face persecution as a transgender person in Brazil.
[19] US Department of State’s Report, found at Exhibit 3, Item 2.1, notes that that violence against LGBTQI2S individuals as a serious concern, and that the Federal Public Ministry, who’s responsible for registering reports of crimes committed on the basis of gender or sexual orientation has been slow to respond. As of May15th there were over hundred killings of LGBTQI2S individuals in the year and that transgender individuals are particularly at risk of harm, according to the reports.
[20] 2019 report by International Lesbian, Gay, bisexual, Trans, and Intersex Association, Item 6.4 states that quote, homophobia, sexism and racism operate as a means to produce lethal violence and systemic violations of the human rights of LGBTI persons in Brazil, end quotes. Page 106. It further notes President Bolsonaro stands against LGBTQ+ community through his appointment of pastor known for her support of so-called conversion therapy as the head of public policies for human rights for men and family.
[21] The report by Human Rights Watch, Item 2.3 also addresses the homophobic statements and restriction of the rights of LGBTQ+ people facing the (inaudible) President Bolsonaro.
[22] Country condition documents submitted by counsel, Exhibit 5, also describes the level of risk and discrimination that transgender individuals face in Brazil.
[23] Having considered this objective evidence together with your consistent and credible testimony, I find on a balance of probabilities that you have a well-founded fear of persecution in Brazil.
[24] I find that adequate state protection would not be available to you if you were to seek it in Brazil as the state is the agent of persecution in this case. Therefore, I find on a balance of probabilities, that you have rebutted the presumption of state protection because state protection will not be available to you as the state will be unwilling to protect you in Brazil.
[25] As you have rebutted the presumption of state protection, and since the country documentation indicates that situation for individuals in circumstances such as yours is the same throughout the country, I find on a balance of probabilities that you do not have a viable internal flight alternative.
[26] In conclusion, after assessing all of the evidence, I find that you have established that there is a serious possibility of persecution on the Convention ground because of your membership in a particular social group as a transgender person I therefore find that you are Convention refugee and I accept your claim.
[27] Okay, thank you, that concludes the hearing.
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