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2019 RLLR 154

Citation: 2019 RLLR 154
Tribunal: Refugee Protection Division
Date of Decision: December 9, 2019
Panel: S. Randhawa
Counsel for the Claimant(s): El-Farouk Khaki
Country: Bahamas
RPD Number: TB7-23928
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000093-000096

[1]       PRESIDING MEMBER: I’ve asked you questions and I’ve listened to counsel’s submissions at this point and I am ready to render my decision and I have reviewed the evidence that’s before me and it’s in abundance including your testimony and I have considered counsel’s submissions.

[2]       I reserve the right to – this decision is final, but I reserve the right to edit the written version of the reasons for syntax, spelling and grammar and to add references to legal citations and footnotes of country conditions, country documentary evidence as necessary.

[3]       Now you are claiming refugee protection pursuant to Section 96 and Section 97.(1) of the Immigration and Refugee Protection Act.

[4]       You were born on XXXX XXXX XXXX XXXX, and you’re claiming to be a citizen of Bahamas.

[5]       Now your allegations are presented in your Basis of Claim Form which are the original narrative and then there is the amended narrative and then there is an amendment to the amendment.

[6]       Basically your allegations are that you are – from the beginning you were lesbian, you liked women and then basically you started as a male and you considered yourself as a male. I’m not going to repeat all the allegations that are in the part of your Basis of Claim Form.

[7]       Now my determinations are that I find you to be a Convention refugee pursuant to Section 96 of the IRPA and a person in need of protection under Section 97 and I find that you’ve established your claim on a balance of probabilities that you are indeed – you were lesbian, you’re transcending into being a transgender male.

[8]       Now I have also taken into consideration the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, that is the SOGIE Guidelines. I’m satisfied and accept your personal identity as a citizen of Bahamas since there is a true, certified copy of your Bahamas passport and you recently provided your birth certificate.

[9]       There was – I had to consider country of reference because of the reference made to your father being from Turks & Caicos (ph). However, according to the birth certificate it indicates that your father was from Bahamas. So I’m not going to address further than that on that issue. I accept that you are who you say you are. You ‘re transcending into a transgender male.

[10]     You have testified – you have clarified the facts and you have testified spontaneously. There were certain times that you corrected the counsel and me. However, when a claimant swears that certain facts are true this creates a presumption that they are indeed true unless there is a valid reason to doubt their voracity.

[11]     You identified that there was discrimination and that your family also did not accept the way you were and in the SOGIE Guidelines it’s stated that: “Some individuals with diverse SOGIE may face different risks due to additional factors such as race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education. Where appropriate, these intersectional factors should be considered when determining whether an individual has established a well-founded fear of persecution.”

[12]     In your case you did not embellish or exaggerate.

[13]     The issues identified, one of the issues was failure to claim in the U.S. You have visited U.S. two times or three – more than three times and you had a visa to go to U.S. You did not file a claim and your reasoning was that you did not know what to do. There were several ways – your counsel and I asked you why would you not ask some people and your basic answer was that you did not know, you didn’t – second time you said people – the way – when counsel asked you did you know the way people can stay permanently in U.S. you said that they were there on student visa and as student then you could stay. However, you returned back several times, but I do accept your explanation about that.

[14]     And there was a re-availment from Canada two times and your explanation was that your current partner at that time you were going to – XXXX (ph) I believe was – you were going to marry her and the marriage didn’t go through. She said she didn’t love you anymore and the marriage fell apart.

[15]     You were asked about sponsorship and you said you were not aware of it. You were asked whether – XXXX XXXX (ph) who is here (inaudible) you said that you only spent few hours with her that you didn’t know.

[16]     Now the documentary evidence which counsel quoted and the documentary evidence from NDP package which is our number BHS104686.E, it tells us about what the legal situation in Bahamas is. Sources indicate that homosexuality was decriminalized in Bahamas in 1991.

[17]     However, it also states the Bahamas is the only English-speaking Caribbean country where same­ sex acts are legal.

[18]     However, the same document states that protection against discrimination in the workplace based on sexual orientation is not addressed in the Employment Act of 2001 of Bahamas.

[19]     Now in the same document there’s a quotation from the Cari-FLAGS coordinator providing the following Caribbean context to explaining homophobia in Bahamas. “In the British Caribbean, hyper-masculinity is valued and black men especially are expected to perform their masculinity in compliance with the hegemonic norm. Openly gay men, effeminate men or transgender people are seen as betraying manhood. These values are rigidly policed and it is culturally acceptable to exert physical violence against men who betray these gender norms.”

[20]     This same document goes on to state that: “Majority of LGBT people are not ‘out’ in the traditional sense, they balance degrees of visibility and invisibility in their personal and professional circles. Physical and psychological violence is typically directed towards ‘out’ LGBT people like activists, and others who declare publicly their orientation or gender identity.”

[21]     And the same documents indicates that LGBT people in the Bahamas have been subject to violence, including killing.

[22]     There are further indication in this document which indicates that considering – now failure to claim in and of itself is – does not negate your claim. So I’m accepting your explanations for that and the documentary evidence supports your claim and you have presented your psychological reports and the reports from Sherbourne Clinic that you are advancing to your next stage of taking treatment.

[23]     So reviewing all the – considering all the evidence and your counsel’s submissions I find on a balance of probabilities that you are a transgender man, you were lesbian going to transgender and that your testimony was credible and the documentary evidence supports your claim. Therefore, I accept your claim. Good luck.

CLAIMANT: Thank you.

COUNSEL: Thank you.

PRESIDING MEMBER: Thank you.

—- REASONS CONCLUDED —–