Citation: 2019 RLLR 155
Tribunal: Refugee Protection Division
Date of Decision: September 5, 2019
Panel: R. Andrachuk
Counsel for the Claimant(s): Hannah Lindy
Country: Saudi Arabia
RPD Number: TB7-24971
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000097-000100
DECISION
[1] On September 5, 2019, the Refugee Protection Division (RPD) heard the claim of XXXX XXXX XXXX, who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral positive decision and Reasons for decision. This is the written version of the oral decision and Reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate.
[2] XXXX XXXX XXXX, I have considered your testimony and I am ready to render my decision orally.
[3] You claim to be a citizen of Saudi Arabia. You claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1
[4] In rendering my reasons, I have considered the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE).2
[5] Your Basis of Claim (BOC) Form3 contained your detailed allegations. I will just give a very brief summary.
[6] You allege that, although you were born in a female body, you have always felt as a male and were not interested in female things. Even throughout childhood and your high school and post-secondary education, you felt as a male and you wanted to pursue male interests. However, this was impossible for you to do in Saudi Arabia.
[7] Now, since in arriving in Canada you now dress as a male and you have a male haircut and are undergoing hormone treatment to transition to acquire male characteristics, and eventually to a male appearing body.
[8] You allege that you fear that you could not live in Saudi Arabia as your true self, as a transgender male, and that the only way you could survive there is if you looked and totally acted as a female.
[9] Your fear is directed towards the government and the police, society in general, as well as fear of your own family. You fear that, particularly your father, could never accept you as a transgender male and that in order not to bring shame to the family, he would even consider killing you.
[10] I determine, based on your evidence and the objective evidence, that you are a Convention refugee as your fear of persecution is based on membership in the particular social group of transgender individuals. I find your fears are objectively well-founded.
[11] In regards to your personal identity and identity as a citizen of Saudi Arabia, I find that you have established your identity by your testimony and supporting documentation, particularly a certified true copy of your passport,4 the original of which is with the Canada Border Services Agency (CBSA).
[12] The issues in this case are your identity, the credibility of your identity as a transgender male, and the well-foundedness of your fear of persecution in Saudi Arabia.
[13] In regards to credibility, I find that you were a credible witness. Therefore, I accept what you have alleged in support of your claim.
[14] You have provided evidence that lead me to accept that you are living as a male and transitioning to a male body. You have submitted sufficient documents5 that you are receiving masculinizing hormonal treatment and that you are under a doctor’s supervision in the process of your transition.
[15] You also have testified that you are pursuing surgical procedures to complete your transition, and at first you are planning to undergo top surgery for the removal of your breasts.
[16] In this regard, Exhibit 46 has several documents which attest to what treatment you are undergoing. For example, you submitted prescription receipts7 for the hormone injections that you receive weekly, and two letters8 from two doctors that you are have been under their care, including transgender care and other treatments since XXXX 2017.
[17] I find that, on a balance of probabilities, you have established your identity as a transgender male.
[18] In regard to the well-foundedness of your fear, I find that there is sufficient evidence in our National Documentation Package (NDP),9 as well as in counsel’s country document package, submitted as Exhibit 5,10 which proves that your fears are well-founded.
[19] The objective documentation supports your allegations that individuals in your circumstances would face persecution in Saudi Arabia.
[20] Counsel has pointed to the Canadian travel advisory in regard to Saudi Arabia in Exhibit 5.11 The travel advisory basically states that those convicted of engaging in sexual acts between individuals of the same sex would be punished, as it is illegal to engage in those activities. And, the same travel advisory states bluntly that being transgender is illegal in Saudi Arabia.12
[21] Our National Documentation Package also indicates, particularly in the United States Department of State’s (US DOS) “Saudi Arabia 2018 Human Rights Report” that “[i]t is illegal for men ‘to behave like women’ … and visa versa.”13 It is noted also that no lesbian, gay, bisexual, transgender and queer (LGBTQ) groups operate in Saudi Arabia and there is little freedom of the press to indicate to what extent LGBTQ members may be persecuted.14
[22] The Freedom House report at item 2.4 of the NDP, echoes the US DOS report, that same sex activity is prohibited under Sharia law and that LGBTQ members are at risk of persecution or even death.15
[23] Item 6.1 points out that there is state-sponsored homophobia in Saudi Arabia and that government persecutes LGBTQ members, who are usually arrested and often tortured.16 Counsel specifically pointed out the case of the incident where 35 individuals were raided at a party and arrested for cross-dressing,17 and that two Pakistani citizens in that incident died in detention after enduring torture, including flogging.18
[24] There is also evidence in the Exhibit 519 that society, in general, ostracizes people who are LGBTQ or who do not conform to sexual norms in Saudi Arabia, and not only do they ostracize these people, they may also physically harm them.
[25] There is also documentation which confirms that not only are transgender people not tolerated in Saudi Arabia, but that there is no surgery available for transgender people to transition to what they believe is their proper sex. In addition, it appears that in Saudi Arabia, you always have to act according to the gender to which you were assigned as you gender at birth.
[26] In summary, on reviewing the objective evidence that was submitted, I find that your fear of being persecuted in Saudi Arabia is justified and that you would not be able to live as a transgender male there.
[27] Therefore, I find that you are a Convention refugee and the Refugee Protection Division accepts your claim.
1 The Immigration and Refugee Protection Act (IF.PA), S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
3 Exhibit 2, Basis of Claim (BOC) Form, received December 20, 2017.
4 Exhibit 1, Package of information from the referring CBSA/CIC, received December 20, 2017.
5 Exhibit 4, Personal Documents, pp.32-42, received August 26, 2019.
6 Exhibit 4, Personal Documents, received August 26, 2019.
7 Ibid., pp.35-37.
8 Ibid., pp.41-42.
9 Exhibit 3, National Documentation Package (NDP) for Saudi Arabia (March 29, 2019).
10 Exhibit 5, Country Documents, received August 26, 2019.
11 Ibid., pp.1-4.
12 Ibid., p.4.
13 Exhibit 3, NDP for Saudi Arabia (March 29, 2019), item 2.1, s.6 – Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity.
14 Ibid.
15 Ibid., item 2.4, s.F4.
16 Ibid., item 6.1.
17 Ibid.
18 Exhibit 5, Country Documents, pp.65-66, received September 10, 2019.
19 Exhibit 5, Country Documents, received August 26, 2019.