Citation: 2019 RLLR 149
Tribunal: Refugee Protection Division
Date of Decision: December 2, 2019
Panel: Shamshuddin Alidina
Counsel for the Claimant(s): Pawandeep Johal
Country: Romania
RPD Number: TB9-10780
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000127-000132
DECISION
MEMBER: You asked me to address you as, Sir.
I have all the evidence that I need to make a decision and I have a decision for you and if you need the decision in writing, you can ask the Refugee Board to give it to you.
If you elect to do that, I reserve the rights to make grammar error corrections, syntax error corrections and to incorporate documentary evidence and case laws where deemed necessary.
So, I’m going to address the name that is given in the file. Okay?
CLAIMANT: Of course. I understand. For legal purposes. Yes.
MEMBER: Yeah.
[1] XXXX XXXX, a citizen of Romania, claims for refugee protection pursuant to Sections 96, 97(1)(a) and 97(1)(b) of the Immigration and Refugee Protection Act, IRPA.
[2] The claimant alleges that, at the time he left Romania, he was not sure of his sexual orientation. He knew that he was not a female.
[3] After he came to Canada for education, he married a female called, XXXX XXXX. Both of them travelled as a couple to Romania and while in Romania for one week, they had difficulties. They were discriminated against and ill-treated, particularly when the claimant went to use washrooms and other
public places.
[4] His family also looked at him differently and he had difficulties with his family too, that being the fact that he was not being accepted as what he was.
[5] The claimant alleges that should he return today to Romania and be what he is, he would be persecuted. He would be discriminated in every walk of life. His identity would not be accepted. He would not be accepted in the employment fields, housing, healthcare and even the Counsel says he could not work with the kids because his identity is different.
[6] Should he seek help from the police, they would not take him seriously.
[7] He decided to seek for refugee protection because he felt that, should he return to Romania, he would be persecuted.
[8] Basically, this is a sur place claim which is the realization of the danger of being what he is, after leaving Romania.
[9] At the outset of the hearing, the claimant indicated that his identity is not being a female. He would love to change his name to XXXX as a first name and XXXX to be the second name and the last name to remain, XXXX XXXX because XXXX is neither a male name nor a female name. It can be used both, both ways.
[10] The claimant indicated that should he do that, he would not recognized in Romania. He would not be able to change that name with the Romanian authorities.
[11] He also testified that, should he do that, he would not be able to even change his documents.
[12] His same-sex marriage with XXXX would not be recognized. Although, today he is separated from her but he is in a relationship with another female.
[13] The claimant provided documentary evidence in Exhibit 6 which gives his true identity in so far as his sexuality is concerned. The claimant, for the sake of the testimony today in the hearing, said that he could be addressed as a “he” and a transgender. He says, in reality, he was a non-binary. In that, he says, he is neither a female nor a male.
[14] He testified that should he return – should he stay in Canada and be allowed to stay in Canada, he would have his breasts removed while he would remain the other female parts and that would be his identity.
[15] He testified that he would not be able to do that in Romania. They would remove all the parts of the female and make him a male or leave all the parts of the female and let him be a female. He is not comfortable with that identity of being a total male or a total female.
[16] Therefore, in Exhibit 6, the Counsel has provided us documentary evidence of the definitions of a non-binary person.
[17] The claimant testified that he had no reason to seek any protection in Canada when he arrived, since he came, simply for education. Education took a little bit longer but then his sexuality was still not known to him. He was in a state of confusion and he got married to a female.
[18] He then decided to go to Romania because his father was not well and while he was in Romania, he testified that his family began not accepting him as a binary. The society in general was not accepting him. He went to use a male washroom and he had difficulties.
[19] He returned to Canada and applied for refugee protection knowing that he could not live in Romania.
[20] Therefore, based on the evidence that is adduced, the panel finds that the claimant is neither a female nor a male. The claimant is a non-binary and the question remains what would happen to people like him who would perhaps be called a transgender if he returned to Romania. That’s the closest thing that they would do.
[21] The objective evidence is very important in this case because it’s a sur place claim so the panel examined the documentary evidence.
[22] In so far as the claimant’s testimony is concerned, the claimant indicated that should he return to Romania, his gender identity would not be accepted. That’s the first thing. His name changed to XXXX and XXXX, as a second name, would not be acceptable to the authorities.
[23] He testified that he would have serious problems looking for a job because his identity would not be accepted. He would have problems seeking healthcare in Romania. He would have difficulties obtaining housing for rent.
[24] His family has stopped accepting him as what he is.
[25] The panel in determining objective evidence went through a number of documentations that are very clear. The DOS Report indicates that the law in Romania prohibits discrimination based on sexual orientation. In this case, the claimant has a sexual orientation which is not mentioned anywhere.
[26] The NGOs reported that societal discrimination against LGBT persons was common and there were some reports of violence against them. The claimant did face violence while he was there.
[27] Discrimination in employment occurred against the LGBT people.
[28] Although this year, the Pride parade with some 5,000 participants was without an incident in Bucharest, there were a hundred people who took part in a counter-protest.
[29] The law governing legal gender recognition for transgender persons was vague and incomplete. In some cases, authorities refused legal gender recognition unless an individual had first undergone sex re-assignment surgery.
[30] Access to adequate XXXX services was also limited because some XXXX refuse to accept transgender patients. In this case, the claimant is neither a male nor a female nor a transgender. He is a non-binary and there is absolutely no mention about the term non-binary in any of the documentary evidence that we have before us, either from the NDP or from the claimant’ s counsel.
[31] However, the panel will cite some documents because Counsel has provided a number of documents which indicates what happens to people like the claimant in Romania. This is the news, the latest one, page 109 of Exhibit 4 and that indicates the Romania has passed no legislation recognizing or promoting gay rights since the Balkan country joined the EU 12 years ago and since it decriminalized same-sex relationships 18 years ago. As a result, gay couples and transgender people still face huge problems as they try to go about with their lives.
[32] Documentary evidence indicates in regards to Romanian LGBT millennials on page 112, in Romania – sorry, in a new report on Romania, the Counsel for Europe’s Commission Against Racism, Intolerance, expressed concern about a number of issues, notably the widespread problem of racist and intolerant hate speeches and inadequate responses of the criminal justice to hate crimes and discriminations against Roma and LGBT persons, although it notes that some progress has been made.
[33] Documentary evidence on page 115 indicates that, temporary passports were issued to Adrian Common(sp)[1] , after he was denied new passports. He was issued a temporary passport instead.
[34] Documentary evidence of April 2017 indicates, for many transgender people in Europe something as simple as changing their names or gender on a driver’s licence requires an invasive and offensive medical procedure. Of the 47 countries currently signed up to the European Convention on Human Rights, 22 countries require transgender people to undergo sterilization before allowing them to change their names or gender on a legal document.
[35] The claimant indicated he would have to do that because he is not who everybody thinks he is.
[36] Page 19 of Counsel’s objective document says, that 6 in 1 0 Romanians would not want to have a gay family member and 29% would not want a Roma relative. This is according to the survey.
[37] As such 74% of those surveyed said, they don’t trust homosexuals and 72% said they don’t trust Roma immigrants.
[38] The survey revealed a high intolerance towards homosexuals.
[39] The next page, 21, indicates that more than 2/3 of the respondents don’t agree with gay marriages and 60% disagree with the idea of civil partnerships.
[40] The present cases, this is page 41, the present cases concern two trans men who claim that their right to privacy and right to found a family have been violated. The legal framework on legal gender recognition in Romania remains uncertain subjecting trans people to [2:11:56] judicial procedures and pathologizing and invasive medical requirements when they request for recognition of their gender identity. The claimant indicate that he would have to change either totally to male or totally to female.
[41] Documentary evidence on page 46 clearly indicates that the article which argues that Christians are suffering religious discrimination at the hands of the pro-LGBT campaigners comes as the country prepares for a referendum next month which could prevent same-sex marriage by changing the Constitution to define marriage as being between a man and a woman. That’s exactly what the claimant indicated.
[42] On page 69 the documentary evidence gives the clear picture of Romania is today. Romania is regarded as one of Europe’s most homophobic countries. Same-sex sexual activity is legal but there is no legal recognition of same-sex couples. The church holds a huge influence over the population. Approximately 85% of the 19 million population belong to Romanian Orthodox Church.
[43] Anti-gay campaigns led by Coalition for Family gained 3 million signatures in the country in 2016 urging for the government to act to amend the Constitution.
[44] On page 74, the 19th March 2019 article indicates that the Senate rejected by a majority on March 8th two bills that would have allowed same-sex individuals to close a civil partnership and enjoy rights similar to those of married couples.
[45] That is, in a nutshell, the objective evidence of what the society in Romania is.
[46] Based on the documentary evidence, the panel finds that the claimant would not be able to change his name. The claimant would not be able to have his parts like, the breasts removed and the rest of the female parts kept and should he return and continue, which he says he would, to be a non-binary, he would be targeted. He would be discriminated in employment, in housing, by his family and he would not have protection, as well as, he would not be able to change his name to XXXX XXXX.
[47] All that cumulatively amounts to persecution.
[48] The panel finds that the claimant – the panel finds that there is serious possibility that the claimant would be persecuted as a non-binary, should he return to Romania.
[49] For all above reasons, XXXX XXXX, is a Convention refugee.
(Signed by) Shams Alidina
I wish to thank you, Sir, for coming.
I wish to thank the two Counsels.
The hearing is over.
——— REASONS CONCLUDED ———-