Citation: 2019 RLLR 158
Tribunal: Refugee Protection Division
Date of Decision: September 25, 2019
Panel: Nick Bower
Counsel for the Claimant(s): (no information)
Country: Fiji
RPD Number: VB8-04419
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000144-000154
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of XXXX XXXX aka XXXX XXXX, a citizen of Fiji who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1
[2] This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s instructions governing the streaming of less complex claims2 and paragraph 170(f) of the IRPA.
[3] In rendering my reasons, I have considered and applied the Chairperson’s guideline on claims involving sexual orientation and gender identity and expression.3
ALLEGATIONS
[4] The claimant was born in XXXX, Fiji, and lived her life in Fiji before coming to Canada.
[5] The claimant was identified as male at birth. However, since childhood, she has presented as feminine. She has been bullied for acting feminine. She has been repeatedly told to cut her hair and “act like a boy.”
[6] The claimant was pulled out of school because of her presentation, and was taken out of XXXXat XXXX XXXX because she was too feminine. In XXXX XXXX her instructor emotionally abused her and told the claimant that the instructor “didn’t want a sinner in her class.”
[7] When the claimant was 18 years old, her father beat her with a whip. She reported the assault to the police. Despite the obvious injuries, the police provided no assistance. Instead they insulted the claimant.
[8] The claimant was able to complete her education, and got a job as a XXXX XXXX with Fiji’s Ministry of XXXX. Because the claimant presented in a feminine manner, the claimant continuously faced issues at work.
[9] Beginning in XXXX 2013, the claimant began transitioning through self-medication. She dressed as a woman outside of work.
[10] The claimant was born and grew up in XXXX, a town close to the north coast of XXXX XXXX, the main island in Fiji. She went to XXXX XXXX in XXXX, the capital city. After becoming an XXXX, the claimant returned to live in XXXX, and worked in XXXX, a town nearby. Because of issues at work regarding her gender identity, the claimant was transferred to a XXXX in the XXXX XXXX, a group of small islands more than 100 kilometers distant from XXXX XXXX.
[11] The claimant saw the transfer as an opportunity, because she had increased responsibility for managing the island XXXX facility. However, she found the community there even less accepting than in XXXX XXXX. The claimant was assaulted. Her belongings were vandalized. When the claimant reported these crimes to the police, they did not provide any assistance to her.
[12] The claimant was transferred back to XXXX in XXXX 2017. The claimant learned that the XXXX community had gone to the Ministry, possibly even the Prime Minister, to state that they did not want a transgender XXXX.
[13] Back in XXXX, the claimant continued to experience ongoing mistreatment. Both co workers and XXXX misgendered and mocked the claimant. She was treated with no respect at work. When she was harassed by XXXX or members of the public, her employer did not provide any assistance; instead, HR staff and her supervisors laughed at her.
[14] Outside of work she was frequently abused; people spat at her for dressing and acting “like a girl.” She was assaulted and robbed in public. She did not receive any assistance from the police, and was even told that she “deserved it” when she reported crimes against her to the authorities. At times police have themselves sexually harassed the claimant.
[15] The claimant has been careful to dress in a manner that would not attract attention. She had to give up using public transportation because of the abuse she encountered on the bus, and began commuting to and from work daily by taxi. She lived in fear of being attacked and was constantly depressed.
[16] By XXXX 2018, the claimant had saved enough money to leave Fiji. She was issued a Canadian visa on XXXX XXXX, 2018, and an American transit visa on XXXX XXXX, 2018. She arrived in Canada on XXXX XXXX, 2018. She completed her Basis of Claim form (BOC) and sought protection on XXXX XXXX, 2018.
DETERMINATION
[17] I find that the claimant is a Convention refugee.
ANALYSIS
Identity
[18] I find that the claimant is a citizen of Fiji.
[19] The claimant has provided a copy of her passport identifying her as a citizen of Fiji.4 The passport was issued on XXXX XXXX, 2009, and expired on XXXX XXXX, 2019. Although by now the passport has expired, it was a valid passport when the claimant entered Canada in XXXX 2018.
[20] The claimant’s passport has a Canadian visa and an American visa. The American visa has a photograph of the claimant and identifies her nationality as Fijian.
[21] The claimant has provided a copy of her XXXX XXXX as a XXXX XXXX, issued by the Fiji XXXX XXXX in XXXX 2018.5 She has provided a copy of her Republic of Fiji learner permit, issued to the claimant when she was working on XXXX XXXX and expiring in XXXX 2017.6 These documents demonstrate the claimant’s long-term presence in Fiji.
Nexus
[22] I find that there is a nexus between the persecution alleged and the claimant’s membership in a particular social group as a transgender woman in Fiji.
Credibility
[23] Based on the documents in the file, I have noted no serious credibility issues.
[24] The claimant’s identity as a woman is clearly established by the photographs in the identification documents she has provided.
[25] The oldest photograph of the claimant in evidence before me is her photograph in her passport.7 The passport was issued in 2009, when the claimant was 19 years old. In this photograph the claimant has short hair and is wearing a men’s or unisex shirt. The passport gives the claimant’s sex as “M” for male.
[26] The next photograph of the claimant is on her learner’ s permit. Although there is no date on the permit to say when it was issued, the permit expired on XXXX XXXX, 2017. In this photograph the claimant has long hair in a feminine style. Although the copy of the permit in evidence is in black and white, it is clear that the claimant is wearing tasteful makeup. She is wearing a shirt with a wide collar that is consistent with women’s clothing. The person in this photograph is the same person as in the passport photograph. In this photograph, the claimant is clearly presenting as a woman.
[27] The permit does not include an entry for gender. However, despite the claimant’s obvious feminine appearance, her name on the permit is “XXXX XXXX XXXX XXXX.”
[28] The next photograph in time is the photograph in the claimant’s XXXX XXXX XXXX, which was valid beginning on XXXX XXXX, 2018. The claimant’s hairstyle has changed slightly from the photograph in her learner’s permit; her long hair is hanging to her left, rather than her right. Again, the claimant clearly presents as a woman in this photograph.
[29] The most recent photograph of the claimant in evidence before me is attached to her Generic Application Form, and is dated XXXX XXXX, 2018.8 This photograph is in color. The claimant is wearing feminine makeup (lipstick, eye liner and eye shadow), applied in a competent manner. She is wearing feminine clothing and jewelry. The claimant in the photograph clearly presents as a woman.
[30] I recognize that, when I describe the claimant’s appearance in these photographs as feminine, I am interpreting her presentation using North American assumptions. From the photographs, the claimant presents as a woman – in North America. Her appearance in the photographs – her hair, clothing, and makeup – are all consistent with how professional women in North America are expected by society to present.
[31] I have considered whether the claimant’s presentation might be interpreted as more masculine by Fiji’s community standards. There is no evidence before me to suggest that Fijian style is so different that the claimant would be seen as masculine in Fiji.
[32] The claimant has provided evidence in her BOC that she has declared as true, with the same force and effect as if made under oath.9 When a claimant swears to the truth of her allegations, those allegations are presumed to be true unless there is a reason to doubt their truthfulness.10 I see no reason to doubt the truthfulness of the claimant’s allegations.
[33] The claimant is clear, throughout her BOC and attached narrative, that she wears women’s clothing and presents as feminine. Even recognizing that I am approaching her photographs using North American presumptions, in her photographs, the claimant is feminine in appearance.
[34] The claimant has provided a copy of a complaint she made to the police in XXXX 2018.11 In the “Background Information” section, the claimant is referred to as “he.” However, in the section for identification of the complainant, beside “Sex,” “F” has been circled and then crossed out, with “M” left circled. This is consistent with the claimant’s allegations that she presents herself to the public in Fiji as a woman.
[35] Based on all of the evidence before me, I find that the claimant’s evidence is credible. I find that the claimant has established that she is a transgender woman. She identifies as a woman and presents herself as a woman, although she was born a biological male.
Objective basis of future risk
[36] The BOC asks each claimant to identify their sex as identified in their passport. The claimant has marked “Male,” consistent with her passport. The BOC then provides the opportunity for a claimant to self-identify their sex or gender if the claimant does not identify with the sex or gender in their passport. The claimant has written that she identifies herself as “Female.” As set out above, I find that the claimant is a transgender woman.
[37] The claimant is identified as male by Fijian authorities. His passport gives his sex as male, and his learner’s permit refers to him as “Mr.”12 She is referred to as “he” in the police report, and the gender identification is amended from female to male.13 However, as is clear from the photographs, the claimant presents herself to the world as a woman, and has been doing so for years.14
[38] The claimant has set out her personal experiences in her BOC and narrative.15 She has faced constant harassment and abuse because she is a woman. She has been pulled out of school. She has been beaten by her father. She has been transferred at work against her will, for no legitimate reason. She has been subject to verbal abuse and physical violence by the community. When she has sought assistance from police or her employer, she has been met with indifference or further abuse.
[39] The constant mistreatment has left her XXXX. She has had to consider very carefully how she can present herself to the world while still trying to remain true to her identity. She has had to change her life to protect herself, to the extent that she cannot feel safe using public transit. I find that the cumulative harassment that the claimant has experienced in Fiji amounts to persecution. There is no basis to believe that she will face any better treatment if she were to return now.
[40] The claimant’s experiences are consistent with the objective evidence before me.
[41] Fiji’s constitution prohibits discrimination on the grounds of sexual orientation, gender, and gender identity and expression. Nonetheless, LGBTI persons continue to face discrimination in areas such as employment, housing, or access to health care in Fiji.16
[42] Transgendered persons in Fiji have been killed in hate crimes. In one reported case a person was charged in that death.17 However, in two other cases there were no arrests reported, and members of the LGBTI community expressed distrust of the police based on past experiences of harassment, discrimination and violence by authorities.18 Reports of the murder of a transgender woman did not acknowledge that she was trans and did not describe the murder as a hate crime.19
[43] The president of Fiji has launched a campaign to combat prejudice and violence against the LGBTI community in Fiji.20 However, in 2019 the prime minister of Fiji and religious and community leaders have made strong public statements opposing same sex marriage, with the prime minister saying it would never happen as long as his government remained in power because Fiji was a God-fearing country.21
[44] This has been a long-held position. In 2016 the prime minister also expressed opposition to same-sex marriage, characterizing the issue as “a topic pushed by NGOs … under the issue of human rights.” The prime minster is quoted as saying, regarding a woman who wants to marry another woman, “Go and have it done in Iceland and stay and live there.”22
[45] The strong public condemnation of same-sex marriage and its illegality effectively prevents the claimant from marrying in Fiji. The claimant is identified by authorities as biologically male, and so she cannot marry a man. The claimant presents as and appears to be a woman, and so will be subject to societal abuse if she takes another woman as her spouse. The claimant is trapped in the middle and denied the possibility of having such a relationship.
[46] There is some support expressed for LGBTI rights in Fiji. However, LGBTI persons continue to face harassment, discrimination, and potentially lethal violence. Prominent members of the government and community continue to express opposition to LGBTI rights because of strongly held conservative and traditional beliefs.23
[47] This is consistent with Fiji’s patriarchal society. Despite legal protections for women from domestic and gendered violence, a large majority of women in Fiji continue to experience violence linked to pervasive gender stereotypes and norms of male dominance. More than half of women surveyed have had partners who insisted on knowing where they were at all times, and more than a third have had to ask permission from their husbands before seeking health care for themselves. Almost half of all women surveyed, 43%, agreed that there are “good” reasons for a man to hit his wife, including for some if the woman does not complete household work to the man’s satisfaction.24
[48] Traditional support for male dominance has led in Fiji to underreporting of widespread gender violence and a persistent perception among law enforcement officials that domestic violence is a private matter. Perpetrators of gender-based violence against women frequently enjoy impunity. Hate speech against women is prevalent in society and the media.25
[49] As a woman, the claimant faces this threat of violence. As a transgendered woman in a conservative, male-dominated society, the threat she faces is even greater.
[50] Violence against women is publicly and officially condemned in Fiji. However, it is still accepted societally, and continues to occur with impunity because of traditional values. Despite the government’s stated support for some LGBTI rights, trans women in Fiji cannot realistically have better protection than other women in Fiji.
[51] Based on all of the evidence before me, I find that the claimant has established that there is an objective basis for her fear of persecution in Fiji. I am satisfied that the claimant faces a serious risk of persecution if she were to return to Fiji.
[52] For the reasons set out above, I find that the claimant has rebutted the presumption of state protection. As noted above, despite the government’s stated position, I find that the state does not provide adequate protection to LGBTI persons in Fiji. Gender-based crimes of violence based on traditions of male dominance continue to occur with impunity.
[53] The claimant has sought protection from the state. She has not received any protection. Instead, she has received insults and further abuse.
[54] Similarly, I find that the claimant does not have a viable internal flight alternative. Based on the evidence before me, I find that she faces a serious risk of persecution throughout Fiji.
[55] The level of protection provided by the state, and the attitudes of the community, are consistent throughout Fiji. Further, the claimant has relocated in Fiji. She has lived in Suva, the capital and largest city in the country, and has experienced persecution there. She has lived in a small rural community, and has experienced persecution there.
CONCLUSION
[56] For the reasons set out above, I find that the claimant XXXX XXXX, aka XXXX XXXX, is a Convention refugee pursuant to section 96 of the IRPA, and I therefore accept her claim for protection.
(signed) Nick Bower
September 25, 2019
1 S.C. 2001, C. 27.
2 Instructions governing the streaming of less complex claims at the Refugee Protection Division, effective Jan. 29, 2019.
3 Chairperson ‘s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and
Expression, effective May 1, 2017.
4 Exhibit 1.
5 Exhibit 1.
6 Exhibit 1.
7 Exhibit 1.
8 Exhibit 1.
9 Exhibit 2.
10 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (C.A.).
11 Exhibit 6, pp. 11-15.
12 Exhibit 1.
13 Exhibit 6, pp. 11-15.
14 Exhibit 1.
15 Exhibit 2.
16 Exhibit 3, National Documentation Package, Fiji, 29 March 2019, tab 2.1: Fiji. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019.
17 Exhibit 3, National Documentation Package, Fiji, 29 March 2019, tab 2.1: Fiji. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019.
18 Exhibit 6, pp. 5-6.
19 Exhibit 6, pp. 5-6.
20 Exhibit 3, National Documentation Package, Fiji, 29 March 2019, tab 2.3: Fiji. Freedom in the World 2016.
Freedom House. 2016.
21 Exhibit 6, pp. 1-2.
22 Exhibit 6, pp. 7-8.
23 Exhibit 3, National Documentation Package, Fiji, 29 March 2019, tab 2.3: Fiji. Freedom in the World 2016.
Freedom House. 2016.
24 Exhibit 3, National Documentation Package, Fiji, 29 March 2019, tab 5.1: Fiji. Social Institutions and Gender Index 2014. Organisation for Economic Co-operation and Development.
25 Exhibit 3, National Documentation Package, Fiji, 29 March 2019, tab 5.4: Concluding observations on the fifth periodic report of Fiji. United Nations. Committee on the Elimination of Discrimination against Women. 14 March 2018. CEDAW/C/FJI/CO/5.