Citation: 2019 RLLR 159
Tribunal: Refugee Protection Division
Date of Decision: August 16, 2019
Panel: Janko Predovic
Counsel for the Claimant(s): Robert J Hughes
Country: Kuwait
RPD Number: VB8-05555
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000155-000162
REASONS FOR DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim for protection of XXXX XXXX aka XXXX XXXX (“XXXX XXXX XXXX” or the “claimant”) under sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “IRPA”).1
[2] The claim is being decided without a hearing, pursuant to the Immigration and Refugee Board of Canada’s Instructions governing the streaming of less complex claims at the Refugee Protection Division2 and subsection 170(f) of the IRPA.
[3] In reaching my decision in this claim, I have considered all of the evidence before me, including the Basis of Claim (BOC) form,3 the referral documents,4 the information contained within the National Documentation Package (NDP) for Kuwait,5 and the balance of the claimant’s documentary evidence and submissions.6
[4] In substantively assessing the claim, I have also considered and applied Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.7
ALLEGATIONS
[5] The following is a brief synopsis of the claimant’s narrative and allegations as set out in his BOC form.
[6] Though he was born female, the claimant self-identifies as a male and has done so since a very early age, perhaps as early as four years. When attending primary school, he felt different from his peers because he attended an all-girls school. He was called a “tomboy” among other things. Once an adolescent, he began to find himself attracted to girls and began to feel even more like he did not belong. He began to outwardly present himself in a more masculine fashion, which led to a suspension from his high school for failing to abide by gender role expectations. The claimant became depressed due to the social expectations of him and his changing body. He XXXX XXXX at 16. His mother took the claimant to XXXX in 2007 and 2008. The claimant continued seeing a XXXX until 2012.
[7] As the claimant became older, he decided to transition from female to male. He took steps to make his outward appearance match his internal gender identity and began taking hormone therapy without a doctor’s supervision. He also began planning to leave Kuwait for Canada and obtained a visa. Some visa problems prevented him from flying through the United States to Canada so the claimant then flew to Thailand instead, without informing his family. In Thailand, he underwent a mastectomy and hysterectomy.
[8] Upon returning to Kuwait, the claimant experienced trouble entering the country because his outward appearance did not accord with the gender indicated on his passport. For similar reasons of gender non-conformity, he was arrested in 2016. The claimant continued to plan leaving Kuwait for good and waited for a suitable opportunity.
[9] In 2017 the claimant flew to the UK and claimed protection immediately upon arrival. However, he withdrew that claim for protection and returned home before he could see it through when he learned that his mother had suffered a stroke. Upon returning to Kuwait, he was mistreated by his father, who effectively locked him up at home for nearly a year as a consequence of his gender non-conformity. The claimant’s family does not support his transition.
[10] In XXXX of 2018, the claimant made a final bid for freedom and made it to Canada on his still-valid Canadian visitor’s visa. He claimed protection shortly after arrival.
[11] In summary, the claimant has experienced harm in Kuwait as a consequence of his gender identity and expression. In that country, he is unable to freely express his gender identity and he has been arrested in the past on account of his masculine appearance. He fears that if he returns to Kuwait, he faces a serious possibility of persecution due to his gender identity.
DETERMINATION
[12] The claimant is a Convention refugee pursuant to s. 96 of the IRPA.
ANALYSIS
Identity
[13] The claimant’s personal identity and status as a national of Kuwait are established by the certified copies of his passports, and the Kuwaiti civil ID card, all of which are on file.8 I am satisfied on the evidence before me that the claimant is a citizen of Kuwait and no other country.
[14] I note that in closely examining the passport and civil ID photographs (in which the claimant appears as a female) in comparison with a recent photograph of the claimant attached to his file9 (in which the claimant appears clearly male), it is clear to me that the photos are of the same person, but before and after a gender transformation.
Credibility
[15] When a claimant swears to the truth of certain allegations, a presumption arises that those allegations are true unless there is reason to doubt their truthfulness.10 There is no reason to displace the presumption in the present case. The photographic evidence to which I have already referred speaks for itself to a certain degree, as it depicts a clear gender transformation from female to male.11 In addition, there are various medical notes from multiple medical professionals dating back to 2012 referencing the claimant’s gender-related medical concerns, and some of the medical procedures that he underwent to progress from female to male.12
[16] An inconsistency that I had identified in the claimant’s narrative (specifically, an error respecting the date of attempted travel to the United States) was reasonably explained in a supplementary narrative that the claimant delivered to the RPD. The claimant explained that his travel to the United States, which was impeded due to lack of a visa, was attempted in 2014 (prior to US visa issuance), not 2015 (after US visa issuance) as originally stated.13 In the face of the substantial other evidence corroborating the basis of the claim before me, and the reasonable explanation that was provided for the dates that did not quite line up, I accept that this error was due to a lapse in memory. I draw no negative inferences respecting the claimant’s general credibility as a consequence of the error.
[17] Having found the claimant generally credible, I accept the central elements of his claim for protection to be true. Specifically, I accept that the claimant was born female, has self identified as a male for most of his life, and that he has transitioned to a male physique with hormone therapy and surgery. I also accept that the claimant has a subjective fear of persecution in Kuwait on account of his gender identity and expression.
Nexus
[18] For a claimant to be a Convention refugee under s. 96 of IRPA, the alleged persecution must bear a nexus to one of the five grounds enumerated in the Convention refugee definition, namely race, religion, nationality, membership in a particular social group, or political opinion.14
[19] The claimant’s fear of persecution in Kuwait is grounded in his membership in a particular social group, namely the transgender community. Therefore, I can and will assess the claim for protection under s. 96 of the IRPA.
Well-Foundedness of the Fear of Persecution
[20] The NDP for Kuwait states that Kuwait criminalizes atypical gender expression. Article 198 of the Penal Code states the following:
Whoever makes a lewd signal or act in a public place or such that one may see it or hear it from public place, or appears like the opposite sex in any way, shall be punished for a period not exceeding one year and a fine not exceeding 1000 Dinar or one either of these punishments.15 (Emphasis added.)
[21] In August 2016 in its Concluding Observations to Kuwait, the UN Human Rights Committee that oversees the International Covenant on Civil and Political Rights (ICCPR) stated that
the State party [Kuwait] should take the measures necessary to decriminalize sexual relations between consenting adults of the same sex and repeal the offence of imitating members of the opposite sex, in order to bring its legislation into line with the Covenant. It should also take measures to put an end to the social stigmatization of homosexuality and the harassment, discrimination and violence perpetrated against persons based on their real or perceived sexual orientation or gender identity.16
[22] In reviewing the document that is the source of the statement immediately above (which document is hyperlinked within NDP item 6.1 at the bottom of page 129) it is clear that the UN Human Rights Committee is also concerned about “reports of harassment, arbitrary arrest and detention and about acts of violence, abuse, torture and sexual assault against persons on the basis of their real or perceived sexual orientation or gender identity” in Kuwait.17 (Emphasis added.) These acts are persecutory, because they represent serious violation of fundamental rights, sustained or systemic, demonstrative of a failure of state protection.18
[23] Given the foregoing, and the fact that the claimant appears and self-identifies as male despite having been born female, I find that the claimant’s fear of persecution in Kuwait on account of his sexual identity and expression is objectively well-founded.
State Protection
[24] There is a presumption that a state will do what is adequate to protect its citizens and a claimant seeking refugee protection must rebut that presumption. Clear and convincing confirmation of a state’s inability to protect must be provided to rebut the presumption.
[25] In the present case, it is clear that the state is the agent of persecution. Accordingly, the presumption of state protection is rebutted and it is clear that there would not be adequate state protection available to the claimant if he sought it out.
Internal Flight Alternative (IFA)
[26] For an IFA to be viable in a s. 96 analysis, there must be no serious possibility of the claimant being persecuted there. Further, conditions in the putative IFA must be such that it would not be unreasonable in all the circumstances for the claimant to seek refuge there.
[27] Kuwait criminalizes the expression of non-conforming gender identity nationally. Given that the claimant cannot be expected to conceal his gender identity or expression in order to live free from persecution,19 and given that the claimant is visibly identifiable as gender non conforming (at least insofar as any state agent examining the claimant’s Kuwaiti identity documents would immediately realize), I find that there is nowhere that the claimant can go in Kuwait and not face a serious possibility of persecution. Accordingly, he has no IFA.
CONCLUSION
[28] The claimant is a Convention refugee and I accept his claim. I welcome him to Canada and I wish him a peaceful life in this country.
(signed) Janko Predovic
August 16, 2019
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Instructions governing the streaming of less complex claims at the Refugee Protection Division, effective date January 29, 2019.
3 Exhibit 2.
4 Exhibit 1.
5 Exhibit 3, National Documentation Package (NDP), Kuwait, March 29, 2019.
6 Exhibit 4.
7 IRB Chairperson’s Guideline 9: Proceedings be/ore the IRE Involving Sexual Orientation and Gender Identity and Expression (SOGIE), Ottawa, Canada, May 1, 2017.
8 Exhibit 1.
9 Exhibit 1.
10 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).
11 Exhibit 1.
12 Exhibit 4.
13 Exhibit 4.
14 UN High Commissioner for Refugees (UNHCR), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
15 Exhibit 3, National Documentation Package, Kuwait, 29 March 2019, tab 6.1: Kuwait. State Sponsored Homophobia 2017: A world survey of sexual orientation laws: criminalisation, protection and recognition. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Aengus Carroll; Lucas Ramón Mendos. May 2017.,p.129.
16 Exhibit 3, National Documentation Package, Kuwait, 29 March 20 I 9, tab 6. 1: Kuwait. State Sponsored Homophobia 2017: A world survey of sexual orientation laws: criminalisation, protection and recognition. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Aengus Carroll; Lucas Ramón Mendos. May 2017., p. 129.
17 Exhibit 3, National Documentation Package, Kuwait, 29 March 20 I 9, tab 6. 1: Kuwait. State Sponsored Homophobia 2017: A world survey of sexual orientation laws: criminalisation, protection and recognition. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Aengus Carroll; Lucas Ramón Mendos. May 2017., p.129.
18 Canada (Attorney General) v. Ward, [1993] 2 SCR 689, 1993 CanLII 105 (SCC)
19 V.S. v. Canada (Citizenship and Immigration), 2015 FC 1150 (CanLII) at para. 12; Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), 2004 FC 282 (CanLII) at para. 29.