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
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 They both identify as members of the LGBTQ community and have been active members of that community with different groups while in Canada.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 CONCLUSION: Based on the analysis above, I conclude that the claimants are convention refugees and accordingly, I accept their claims.
 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.
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