Category: Morocco

Citation: 2021 RLLR 71
Tribunal: Refugee Protection Division
Date of Decision: June 24, 2021
Panel: Kristy Sim
Counsel for the Claimant(s): Mo Vayeghan
Country: Morocco
RPD Number: VC0-04508
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada being delivered orally on June 24^th, 2021 in the claim of XXXX XXXX. I have considered your testimony and the other evidence in the case and I’m going to give you my decision orally. You will, however, receive a written transcript of this decision in the mail. Throughout the hearing and in in making my decision, I have considered and applied Chairperson’s Guidelines Guideline 9 as this case involved sexual orientation, gender identity and expression as well as Chairperson’s Guideline 4 which relates to gender-based persecution as that also relates to the nature of the allegations and the availability of a viable IFA.

[2]       The decision I have reached is a positive one (1) and I accept your claim. I find that you are a Convention refugee, and my reasons follow.

[3]       You are a citizen of Morocco and are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[4]       To summarize your allegations which are set out in full in your Basis of Claim form at Exhibit 2. You are a 24-year-old woman originally from Rabat who identifies as a lesbian. Starting around the age of 13, you noticed that you were attracted to girls. Your family lived in various countries as you grew up due to your father’s job and when your family returned to Morocco when you were 15 years old, you began to attend what you’ve described as a liberal minded French high school. The school was a bit more open than society, but you still didn’t feel safe being open about your sexuality other than to a few friends of yours. Your first same-sex relationship was with a classmate at this school who was named XXXX and you were about 18 years old. You mostly hung out with her in her bedroom and would play video games and do other activities. Due to the criminalization of same-sex relationships, you two (2) were very careful when you went out together in public. You intended to go to school abroad because you felt the need to escape Morocco in order to not live-in fear or in secret. You came to Canada as a student in 2015, the same year that you graduated from high school; and have been on student visas in Canada since then.

[5]       You filed for refugee protection in late 2020. You explained that you did so then because you knew that you liked living in Canada, that you could see yourself with a future here and because going back to Morocco was not an option for you given your sexual orientation. You have not told your father that you are a lesbian as you are afraid of his reaction and his possibly rejecting you. Recently, your mother asked you if you would be interested in dating women and when you told her you would, she moved on with the conversation and did not ask you any further questions which led you to believe that she wasn’t really ready or open to talk about that yet. You fear that if you return to Morocco, you will face persecution, possibly even arrest as well as other risks due to your sexual orientation.

Identity

[6]       Your identity as a national of Morocco is established by your testimony as well as documents including your passport that has several visas in it which is Exhibit 1. You testified about the information in your identity documents is consistent. I have no reason to question their authenticity and so I’m satisfied of your identity.

Credibility

[7]       There is a presumption that sworn testimony is true unless there are valid reasons to doubt their truthfulness and, in your case, I find there was no serious reasons to doubt the truthfulness of your testimony. Your testimony that was direct and spontaneous. You didn’t exaggerate or tailor your evidence. There were no material inconsistencies or contradictions. You testified about coming to realize your sexual orientation and about how it felt being with a girl versus being with a boy. You credibly talked about your first same-sex relationship in Morocco when you were still in high school and how XXXX went on to study in France. You also testified about a young woman named XXXX (ph) that you dated for about a year and a half in Canada and how your relationship ended, and she returned to Malaysia. You are no longer in contact with either of these women and so I accept that you are not able to get a declaration from them or have them testify on your behalf. You testified about a dating app for women that you used and how you met XXXX (ph) who you casually dated for a while in 2020 but that due to the pandemic, that ended, and you found it difficult to socialize or date since.

[8]       You provided corroborating evidence to support your testimony in the form of a photograph of yourself at a pride event in Vancouver with some friends of yours. You also provided a letter from XXXX XXXX who has been your friend since you arrived in Canada in 2015. In his letter, he attests to you taking a while to tell him about your sexual orientation despite his telling you almost immediately about his being gay. He also attests to you attending a pride event with him and to his socializing with you and XXXX. He also explained how COVID has affected your ability to socialize and date in Canada. I accept that you’re a lesbian and that you have a subjective fear of persecution in Morocco due to your sexual orientation. In addition to which I accept that you found it difficult to live in that society as a result of your agnostic beliefs and being a woman there. Your claim has a nexus to a Convention ground by reason of your membership in a particular social group due to your sexual orientation therefore, I have assessed the claim under section 96 of the Act.

[9]       The objective evidence in the National Documentation Package as well as the reports and articles that you provided at Exhibit 3, corroborate your fear of persecution on the basis of your sexual orientation. Sexual relations between people of the same sex are illegal in Morocco. There are no laws to protect LGBT persons against discrimination or hate crimes nor are they protected against being terminated from their employment on account of their sexuality. LGBT individuals also risk physical, societal and institutional violence and I’m citing NDP Item 6.3. More recently, members of the LGBT community have also faced internet-based abuse through online attacks against individuals who are presumed to be gay or lesbian who have been outed by people trolling same-sex dating sites which has led to their being ostracized by their family and community, expelled from housing, by relatives or landlords and dismissed from their employment and there, I refer to NDP Item 6.5. A research report by the IRB in 2013 cites one (1) source as saying that convictions for homosexuality are rare and that the criminal code provisions are infrequently enforced, and that homosexuality is tolerated in Morocco. That’s NDP Item 6.1. However, the same report cites an NGO which estimates that since independence in 1956, more than five (5) thousand individuals have been prosecuted for violating the criminal code provisions around same-sex relations. It also refers to lesbians being at risk of imprisonment, discrimination and violence in addition to being shunned by families or forced into heterosexual marriage.

[10]     The US State Department report notes that 122 individuals were prosecuted for same-sex sexual activity in 2019. That’s NDP Item 2.1 and there is also a 2019 report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association found at NDP Item 6.2 which documents individuals being arrested and imprisoned for being gay quite recently. The article you disclosed at Exhibit 4 page 11 also lists numerous incidents of violence and arrest of individuals for being gay or lesbian. I also note that you provided a 2020 article by a lesbian woman from Morocco who stated much as you did that “my misogynist and oppressive Muslim society taught me one (1) thing, keep your sexuality and non-conformity to yourself, do not risk your safety and do not bring shame to your family”. And that was at Exhibit 4, page 9. I’m satisfied on the evidence before me that you would face a serious possibility of persecution in Morocco on account of your sexual orientation.

State Protection

[11]     A state is presumed to be capable of protecting its citizens and to rebut this presumption, a claimant must establish on a balance of probabilities with clear and convincing evidence that the state’s protection is inadequate. In this case, it is the state that is the agent of persecution and you cannot be expected to seek the protection of a state where that state permits and even enables the persecution of LGBT individuals. I find that there’s clear and convincing evidence that the state is unwilling to protect you.

[12]     And finally, turning to internal flight alternative. For an internal flight alternative or IFA to be viable in a section 96 analysis, there must be no serious possibility of a claimant being persecuted there. Further, the conditions in the IFA must be such that it would not be unreasonable in the circumstances for a claimant to seek refuge there. The IFA is not viable of either of these two (2) conditions are not met. Based on the evidence before me, LGBT, anti-LGBT laws and attitudes exists across the country. It is well established that being compelled to conceal one’s sexual orientation constitutes a severe interference with your fundamental human rights and that a claimant cannot be compelled to do so in order to avoid the serious possibility of persecution. As such, I find that you would be unable to live safely elsewhere in Morocco and therefore there is no viable internal flight alternative.

[13]     Having considered all of the evidence, I find that there is a serious possibility of persecution if you return to Morocco and so I accept your claim under section 96 of the Act.

———- REASONS CONCLUDED ———-

Citation: 2020 RLLR 152
Tribunal: Refugee Protection Division
Date of Decision: October 27, 2020
Panel: Carolyn Rumsey
Counsel for the Claimant(s): Laura Setzer
Country: Morocco
RPD Number: MC0-02209
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000090-000094

DECISION

[1]       MEMBER: So, this is the decision of the Refugee Protection Division in the claim for refugee protection of the claimant XXXX XXXX (ph) and legal name is XXXX XXXX XXXX XXXX.

[2]       So, you are a citizen of Morocco and you are making a refugee claim pursuant to s. 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[3]       So, because of the nature of your claim, I have considered our Chairperson’s Guidelines on sexual orientation and gender identity and expression.

[4]       For the reasons that follow, I find that you have established that there is a well-founded fear of persecution for yourself in Morocco, and this is based on your sexual orientation and your gender identity, and I find that you are a Convention refugee pursuant to s. 96 of the IRPA, of the Act.

[5]       As we discussed at the beginning of the hearing, your detailed allegations are contained in your Basis of Claim form. You allege that you fear that you will be harmed or killed due to your identity as a transgender woman in Morocco, but you also mention your sexual orientation as being pansexual, and I’ve also considered this as part of your claim.

[6]       So, in terms of your identity, your personal and national identities as a citizen of Morocco are established on a balance of probabilities by your testimony but also by your documentary evidence that you have on file, and in particular, a copy of your Moroccan passport.

[7]       I had to analyze your credibility and whether I (audio cuts out) what you told me today, whether I believed what was in your narrative and in your supporting documents, and I found you to be very credible.

[8]       You spoke about your experiences in Morocco, about your experiences coming out to friends that you had in Morocco in person, but also to a community of people that you met online. And you talked about your experiences also coming out to your family and how that was more of a negative experience than coming out to your friends.

[9]       And when you spoke about your reason for choosing your name, the name that you now use to refer to yourself, I found that very compelling. You gave an explanation of why you chose your first name and your last name and the importance that it held for you and how you felt since using that name.

[10]     You also talked about your experience in Ottawa when you first came here and how you suffered from XXXXandXXXX XXXX and how this led you to seek help, to seek help from the healthcare system, and how you have been following hormone therapy and you have been moving towards a transaction, and how your feelings before this were very negative and that now you feel much more comfortable in your body. And there was something in your narrative that really stuck out for me as well. You wrote in your narrative that now strangers refer to you as female and that that has — that makes you feel very good inside. So, I found that very compelling and very moving, too.

[11]     I found that there were no contradictions or omissions or inconsistencies in your testimony. You gave very detailed responses and you testified spontaneously.

[12]     You also (audio cuts out) documents to support your story. So, you submitted a letter from your doctor, the doctor that you referred to today who prescribed you the medication that you are taking, the hormone therapy. You provided a letter from your partner, XXXX (ph), who has also acted as your support person today. You also provided a copy of your joint lease for your apartment with XXXX, your partner, and other roommates here in Ottawa. And then finally, you included a number of photographs, and these are photographs of yourself before your transition, photographs of yourself now, and photographs with your partner, XXXX, as well.

[13]     So, given your credible testimony and the documents that you have submitted and the fact that your testimony was consistent with your narrative and your port of entry forms, I find that on a balance of probabilities you have established the truth in your allegations and I believe what you have said today and in your narrative.

[14]     So, I just have to talk about the objective evidence. So, we have a National Documentation Package for Morocco and there is a section that is dedicated specifically to LGBT issues, or we call them SOGIE issues, sexual orientation, gender identity, (audio cuts out) expression issues. So, I find that this documentary evidence on the situation for LGBT persons in Morocco is very clear. The most stark point is the legislation against being a member of the LGBT community.

[15]     So, the Moroccan government deems lesbian, gay, bisexual, or transgender orientation or identity to be illegal. And this is document 6.1 in the NDP that I’m referring to right now. It also mentions that society does not look kindly upon gay and lesbian relationships, considering them to be prohibited by Islam. And this echoes, of course, what you were saying about your relationship with religion and the way that LGBT community is perceived in Morocco. The same report talks about social violence, harassment, and blackmail based on sexual orientation or gender identity, and it also says that, specifically to the gender identity, people who feel that they belong to a gender other than their official gender do not openly discuss their situation for fear of being banished by society.

[16]     The next report in the package is 6.2. It talks about the family response to someone coming out as having a sexual orientation or gender identity that is kind of outside of the norm. They mention mob attacks, forced heterosexual marriage, confinement or eviction from family homes, psychological abuse. And the same report even mentions that even the authorities in Morocco are known to intimidate LGBTI activists. And it also says that there’s a general social hostility and this is legitimized by public officials and by the rhetoric that is anti-LGBTQ and also pervasive kind of negative medica coverage on those issues.

[17]     More specifically to transgender people, the same report indicates that they are viewed as being mentally ill and that there is a complete lack of legal gender recognition and that this restricts their access to services, so things like healthcare services and stuff like that.

[18]     There is even — there is a quote in that report that I found particularly striking and it quotes the Human Rights Minister in Morocco in 2017 as saying that (as said), “In Morocco, we have to stop talking about homosexuals because we give them value when we talk about them.” And then he said, “They are trash.” So, even coming from the government there is this anti-LGBT rhetoric, and of course, because issues concerning LGBT activities are considered illegal, that is not terrible surprising.

[19]     This report also mentions that there is a national human rights council in Morocco but that it does not address LGBTQ issues. And even more so, Morocco in Human Rights Council meetings of the UN, Morocco has voted against the adaption of resolutions that support LGBTQ issues and rights.

[20]     So, based on all of that information, I find the country condition evidence is overwhelming regarding LGBTQ persons in Morocco. And so, I find that on a balance of probabilities there is an objective basis for your fear in Morocco for that reason.

[21]     So, I had to look at two other things.

[22]     The first is state protection. So, I have to look at whether the authorities could protect you in Morocco. And given the items in the package that mention authorities’ attitudes towards LGBTQ persons and the fact LGBTQ activity is considered illegal, I find that the authorities are an agent of persecution in your case and therefore that on a balance of probabilities adequate state protection would not be available to you if you were to return to Morocco.

[23]     Finally, I also have to consider whether you could go to another part of your country and be safe there. So, that’s called internal flight alternative. Again, because — I find — because the laws that prohibit LGBTQ activity are enforced throughout Morocco and the information to me is clear that these attitudes are pervasive throughout the country, this leads me to conclude that there is nowhere that you could be safe in Morocco. So, you have a serious possibility of persecution throughout the country and therefore there is no internal flight alternative available to you.

[24]     So, to conclude, based on all of this evidence, I find that you would face a serious possibility of persecution on the basis of your particular social group as a transgender woman and as a pansexual person if you were to return to Morocco. So therefore, I find that you are a Convention refugee, and I am accepting your refugee claim under s. 96 of the Immigration and Refugee Protection Act.

[25]     COUNSEL: Thanks very much.

[26]     MEMBER: So, I just want to say thank you to XXXX XXXX XXXX. I — I really appreciate your willingness to do this in a virtual way in particular given the difficulties that we’re facing this year in 2020. So, thank you for that. Thank you for your testimony as well. I know it’s not an easy thing to do, to -­ especially to talk about these kinds of sensitive issues with a stranger, so I really appreciate that very much.

[27]     I want to say thank you to your partner, XXXX, as well for being support today this morning.

[28]     And thank you, Counsel, as well for your support.

[29]     COUNSEL: Thank you.

[30]     MEMBER: So, just one last thing to — to let you know is that if you change your mailing address, if you decide to move, just let the Board know, just keep your address updated because the decision I just read out to you, you will receive a written copy of that decision in the mail and we don’t want you to miss that.

[31]       So, congratulations and I wish you all the best. Take good care of yourself.

[32]       COUNSEL: Thanks very much.

[33]       MEMBER: Thank you. Bye-bye.

[34]       COUNSEL: Bye-bye.

– – – – – – – – – – – REASONS CONCLUDED – – – – – – – – – –