Citation: 2021 RLLR 43
Tribunal: Refugee Protection Division
Date of Decision: January 7, 2021
Panel: Jan Mills
Counsel for the Claimant(s): Maureen Silcoff
Country: Burma
RPD Number: TB8-11538
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000101-000105
DECISION
[1] MEMBER: This is the claim for refugee protection made by XXXX XXXX XXXX XXXX, a citizen of Burma. The claimant entered Canada on XXXX XXXX XXXX 2018, having travelled directly from Burma. He made a refugee claim on arrival. At that time, the claimant was accompanied by his mother, who also made a claim. Their claims were later separated, at the request of the claimant, due to the sensitivity of his claim. The claimant is a 20-year-old transgender man who submits that he is at risk of persecution by the government and civil society because of his religion and sexual identity as transgender man.
[2] For the following reasons, I find that the claimant is a Convention refugee based on both his religion and sexual identity. In coming to my decision, I have considered the Chairperson’s SOGIE guidelines.1
[3] I accept that the claimant is a citizen of Burma, based on his passport, and I accept that he is a Muslim, based on his testimony and national identity card.
[4] The allegations are set out in the narrative portion of the claimant’s Basis of Claim. There is no need for me to go into great detail into those allegations except to say that the claimant is a Sunni Muslim who is also identified by some factions as Rohingya due to a familial relationship with a member of the Rohingya community. As a member of the Muslim community, he has been discriminated against throughout his life. This discrimination included the inability to pursue his chosen profession because of an unofficial policy of not allowing Muslims to enter the higher professions such as medicine, which he wished to do. The claimant also testified as to the fear that he experienced as a member of the Muslim community and that violence towards Muslims is not unusual.
[5] The claimant also testified as to his sexual identity as a transgender male and is fearful of the treatment he would experience in his home country should he return there. The claimant testified as a young person exploring his gender identity, he was attracted to females, and later came to realize that he identified as male. His sexual identity manifested itself in his home country as sexual orientation towards females, that was not accepted by his family or society at large. The claimant’s testimony was consistent in all material aspects, with his Basis of Claim and narrative, and I find the claimant to be a credible witness.
[6] Based on the claimant’s testimony and the documents submitted, I find that the claimant has a subjective fear of persecution should he return to Burma. In doing so, I have also considered the cumulative impact of being a young, transgender, Muslim man, whose sexual identity also makes him vulnerable, not only in society at large, but also within his own Muslim community.
[7] My definition of a Convention refugee is someone who has a well-founded fear of persecution. Fear is, by its very nature, subjective, while the well-founded nature of that fear is an objective matter. Both subjective and objective components are required to meet the definition. The definition of Convention refugee is also forward-looking, and I must consider what risk the claimant would face today if he were to return to Burma. I must also find that there is credible, trustworthy and reliable evidence that establishes, on a balance of probabilities, that there is more than a mere possibility that the claimant would be persecuted if he were to return.
[8] S. 34 of Myanmar’s constitution entitles all Myanmar citizens to freedom of conscience and the right to freely to profess and practice religion, subject to public order, morality or health. S. 361 of the constitution recognizes the special position of Buddhism as the faith professed by majority of citizens. This applies only to Theravada Buddhism. That is Item 1.9, s. 3.47 of the country documentation.
[9] There are four laws known as the Protection of Race and Religion laws which concern interfaith marriage, religious conversion, monogamy, and population control. These were originally proposed by the Committee for the Protection of Nationality and Religion, an organization led by nationalist Buddhist monks, and were passed by the government in 2015. The UN’s special rapporteur for human rights in Myanmar has criticized the laws for undermining the rights of women, children, and religious minorities, particularly Muslims. These laws remain in force.
[10] At 12.1,2 the Department of State Report, of page 3, indicates that since 1999 — and they used the word “Burma”, so I am using them interchangeably throughout the country documents — “Burma has been designated a country of particular concern under the International Religious Freedom Act of 1998 for having engaged in or tolerating particularly severe violations of religious freedom.” I also note that Myanmar is not party to the International Covenant on Civil and Political Rights. At 1.5,3 the country information indicates that there are several distinct Muslim communities living throughout Myanmar with different cultural and ethnic backgrounds. At the time of the 2014 census, Muslims made up approximately four percent of the population, and the majority lived in northern Rakhine State. Muslims are underrepresented in the public sector, there are no Muslim members of parliament, and consistent with the claimant’s testimony, Muslims have been excluded from a range of government jobs, including teaching and health professionals. Businesses owned by Muslims are reported, in order to procure contracts, to have to have a Buddhist interlocuter.
[11] Furthermore, Muslims experience a range of limitations on their ability to practice their faith freely. In recent years, authorities have blocked the rebuilding of mosques and madrassas that have been either damaged, destroyed or sealed. Muslims have also been denied access to basic rights and services. The Burma Human Rights Network documented multiple incidents of Muslims of all ethnicities being refused national registration cards. Reasons varied, ranging from the Muslim applicant being unable to provide extensive, and often difficult to obtain, documents to prove family lineage before 1824, and the refusal of immigration authorities to register a Muslim person as Bamar, the majority ethnicity.
[12] Anti-Muslim sentiment is prevalent throughout the country and is circulated through social media, some state institutions and mainstream news websites. In the same Item, at 3.72, “Muslims in Yangon have described increasing restrictions on their ability to practice their faith in recent years. Public events marking Islamic days were cancelled by authorities in Yangon in 2017 due to pressure from Buddhist nationalist groups. In April 2017, authorities closed two madrassas that educated several hundred primary school students in Thaketa Township, Yangon. The reduced tolerance for Islamic faith activities has been, at least in part, propagated by a rise in anti-Muslim sentiment at both an official and societal level and its most extreme form has resulted in violent incidents against the Muslim community.”4
[13] Muslims are also not permitted to enter some villages designated by communities as ‘Muslim-free zones’. The Burma Human Rights Network documented at least 21 Buddhist villages across Myanmar from 2012-2017, whereby villagers, with support from local authorities, erected signposts warning Muslims against entering the villages. DFAT at 1.45 assesses the Muslims outside of Rakhine State to face “moderate levels of official and societal discrimination.”
[14] The country documentation, again the Department of State report on religious freedoms at 12.1, indicates that “Religious leaders and civil society activists reported that some government and military officials continued to deploy anti-Rohingya and anti-Muslim rumours and hate speech in official events.”6 While local and international experts said deeply awoken prejudices led to abuses and discrimination against religious minorities, some civil society groups have worked to improve inter-religious tolerance.
[15] Nonetheless, hate speech against Muslims continued to be widespread on social media. Recently, Facebook removed 89 Facebook accounts, as well as 5 Instagram accounts, for engaging in and coordinated authentic behaviour. An investigation found that some of this activity was linked to individuals associated with the military. According to media reports, the military conducted a coordinated effort to spread anti-Muslim and anti-Rohingya sentiment through dummy Facebook accounts and other social media.
[16] Local and international experts said [inaudible] awoken prejudices led to instances of abuse and discrimination against members of religious minorities by societal actors. [inaudible] prominent military, civil and religious leaders continued to promote the idea that Burmese Buddhists culture was under assault by Islam and Muslims and would come through the mountains of Western Burma, northern Rakhine State where the Rohingya live.
[17] While the country has taken some steps to rein in ultra-nationalist Buddhist monks, those steps fall short and the military, who largely control the government, continues to propagate anti-Muslim rhetoric. Country documentation also demonstrates that for minority communities, including Muslims, they do not trust the government to assist them.
[18] Furthermore, same-sex conduct is illegal in Myanmar and subject to up to 10 years imprisonment. LGBTQ, and in particular transgender people, are said to have been targeted by the police and subject to abuse at the hands of the authorities. Although there has been some ability to organize same-sex activities, such as a pride parade in 2019, these continue to be met with opposition from the government. That is at 6.1.7 There is a high level of societal discrimination in Myanmar, including amongst families, who often insist on forced heterosexual marriage. DFAT at 1.5 assesses a “Moderate risk of official and societal discrimination against members of the LGBTQ community.”
[19] In addition, while I cannot find any direct information regarding the availability of treatment for transgendered (sic, derogatory) people in Myanmar, the claimant’s testimony, which I accept, suggests that treatment is unregulated and dangerous and can only be accessed by those with the ability to pay for it. In my view, this is consistent with the country information indicating that same-sex conduct is illegal and societal condemnation of sexual orientation, and by extension, sexual identity — and condemnation of anything other than mainstream.
[20] The claimant has indicated that he would not subject himself to such treatment given the safety concerns. In my view, even were he to do so, I find a lack of professional, family, and social supports were he to return to his home country, make the transition particularly arduous. Furthermore, given entrenched societal views, it would be unreasonable to believe that the claimant could lead a life free from discrimination. He would not have access to identification that properly acknowledges his sexual identity, and this would likely impact his ability to work and to access appropriate healthcare. Furthermore, he would not be free to openly express his gender.
[21] In my view, the nature of the discrimination cumulatively amounts to persecution. For these reasons, I find that the claimant has a well-founded fear of persecution should he return to Burma.
[22] Since the agent of persecution regarding anti-Muslim rhetoric is, at least in part, from the military, who continue to have 25 percent of parliamentary seats, control various government portfolios, including the Ministry of Interior Defence and Border, and a veto power — that is found at Item 1.9, page 58 — and from the state in regard to sexual orientation and identity, I find there is no state protection available to the claimant, and he would face the same risk of persecution anywhere in the country. Myanmar has a centralized government and, as I indicated, the same conditions exist throughout the country. For these reasons, I find there is no viable internal flight alternative available to the claimant.
[23] Therefore, after the above reasons, I find on a balance of probabilities, that there is than a mere possibility that the claimant would be persecuted were he to return to Myanmar, or Burma, and his claim is accepted.
[24] Thank you.
1 Chairperson’s Guideline 9: Proceedings Before the IRE Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
2 Exhibit 3, National Documentation Package (NDP) for Myanmar (Burma), version 30 October 2020, item 12.1.
3 Ibid., item 1.5.
4 Ibid.
5 Ibid.
6 Ibid., item 1 2. 1.
7 Ibid., item 6.1.
8 Ibid., item 1.9.