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2019 RLLR 45

Citation: 2019 RLLR 45
Tribunal: Refugee Protection Division
Date of Decision: November 7, 2019
Panel: Nicole Ginsberg
Country: El Salvador
RPD Number: MB8-25771
ATIP Number: A-2020-01274
ATIP Pages: 000030-000036


[1]       This is the decision of the Refugee Protection Decision in the claim for refugee protection of [XXX], file number MB8-25771. Ms. [XXX], you are claiming refugee protection in Canada pursuant to section 96 and sub-section 97(1) of the Immigration and Refugee Protection Act. I have considered your testimony and the other evidence in the case, and I am prepared to render my decision orally. A written version of this decision will be sent to you by mail at a later date.

DETERMINATION

[2]       I find that you face a serious possibility of persecution in El Salvador on the basis of your membership in a particular social group as a lesbian woman. I therefore find that you are a “Convention refugee” pursuant to section 96 of the Act and I accept your claim. In coming to this conclusion, I have considered the Chairperson’s guideline number nine on sexual orientation and gender identity and expression. My reasons are as follows.

ALLEGATIONS

[3]       Your allegations are contained in your Basis of Claim form, including the narrative your attached and the amended narrative that you submitted subsequently, both of which are found at document two of the evidence. In summary, you fear your former co-worker [XXX] (phonetic) will make good on the death threats he has been making about you as a result of being fired from your place of work. You also allege that as a lesbian who presents in a way you described as being masculine, you are not and will not be accepted by El Salvadorian society generally and your human rights are not respected there. You explained the death threats you suffered from [XXX], the danger he poses to you because of his particular profile, and the adverse treatment of same-sex relations and of LGBTQ people in El Salvador generally, including the lack of regard for LGBTQ rights by El Salvadorian authorities and the unwillingness of the authorities to protect LGBTQ persons there.

[4]       You allege that you are a lesbian and have been in a same-sex relationship with a woman, [XXX], I’ll… I’ll spell that now [XXX]. Is that correct? Ok. For over 11 years, since [XXX] 2007. Your relationship continues to this day. You allege that you have suffered harassment and ill­ treatment in El Salvador from as far back as 2004 as a result of your perceived sexual orientation and have had to live in fear that people would find out. You relayed several incidents of having endured insults and threats from strangers as a result of being perceived as a lesbian, to the extent that you have feared for your life. You explained that same-sex relationships are not accepted in El Salvadorian society generally and the authorities demonstrate an unwillingness to help LGBTQ people. You allege that you have had to keep your sexual orientation secret and that you come from a religious family that does not accept same-sex relationships. Your mother does not accept your being a lesbian, and your father told you that if he found out one of his children was homosexual, he would poison their soup.

[5]       You allege that as a [XXX] at [XXX] in La Libertad, you told an employee’s supervisor about his lack of respect for work hours and that this person, XXXX, lost his job as a result. He began harassing and insulting you based on your sexual orientation and he showed another co­worker a gun that he said he intended to use on you. You allege the death threats must be taken seriously in a country whose security situation is as precarious as El Salvador’s, particularly as an LGBTQ woman who cannot rely on the protection of the police. And, that [XXX] is known to have… to take part in criminal activity and has family political ties. You fled El Salvador on [XXX], 2018, soon after the threats from [XXX] began, and came to Canada where you made your claim for refugee protection.

ANALYSIS

IDENTITY

[6]       Your personal and national identity as a citizen of El Salvador is established on a balance of probabilities by your testimony and by the documentary evidence on file, including a copy of your El Salvadorian passport at document one.

NEXUS

[7]       Your allegations establish a nexus to the Convention ground I identified earlier and I have therefore analyzed your claim pursuant to section 96 of the Act.

CREDIBILITY

[8]       Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness. In this claim, I have no such reason. I find you to be a credible witness. You testified today to be a straightforward, open and sincere manner. You were spontaneous in your answers to my questions, and I do not find that you tried to embellish or exaggerate your allegations during your testimony. You testified credibly and in detail during the hearing about your attraction to women, how you came to realize that you were somehow different, as you say, as a child, and your attraction to women and girls in your adolescence. You testified credibly about your relationship with [XXX], how you met, how your relationship changed from being co-workers to being romantic partners, and about how you had to carry on your relationship in secret, with people believing you were roommates.

[9]       You further testified credibly about your life in Canada as an openly lesbian woman, and the freedom you have found to express yourself, in particular to dress in a way to you have described as masculine. You explained how your job at a men’s suit retailer is your dream job because you finally are able to wear a suit and tie to work everyday. You testified credibly about the treatment of lesbians and LGBTQ people in El Salvador, in law and society. Specifically, you explained that people don’t want to see LGBTQ people for who they are, and often treat them as invisible. The authorities don’t take their complaints seriously. It would be… It would not be safe to be out in the open about a same-sex relationship there or to express oneself with a gender expression not considered binary or mainstream. Your testimony was consistent with the allegations in your Basis of Claim form, and also included some more specific details that were not contained in your Basis of Claim form, but these details allowed me to better and more fully understand your claim.

[10]     You further provided corroborative documentary evidence in support of your allegations. Several… well… Including the following. Photos of you and your partner and your dogs, who you explained are like your children, at exhibit 1… C-1. Photos of you at pride events, also at C-1. Photos of you dressed for work at the [XXX] at which you work in Canada in the same exhibit. Letters from LGBTQ organisations in Canada concerning your involvement, including the women’s choir and a Valentine’s dance from exhibits C-2 to C-6. Sworn statements from three co­workers from [XXX] concerning the threats by [XXX] at exhibits C-15 to C-17. A letter of employment from [XXX] at C-14, declaration of cohabitation with [XXX] at C-13, and several articles concerning the situation of LGBTQ people in El Salvador at exhibit C-20 through C-23. There were… There were no relevant contradictions, inconsistencies, omissions between your Basis of Claim form, your testimony at the hearing and the documentary evidence on file.

OBJECTIVE BASIS

[11]     Your allegations are consistent with the objective country documents before me concerning the treatment of lesbians in El Salvador. For example, although we see same-sex relations are not criminalized in El Salvador, as we see from the objective documentary evidence, for example in tabs 2.1 and 6.3, there are some laws prohibiting discrimination based on sexual orientation and gender identity enforced in the country including in regards to housing, employment, nationality and access to government services. However, the objective documentary evidence is clear about the significant legal vacuums that exist for the protection of LGBTQ people in El Salvador. There is widespread stigmatisation of LGBTQ people, and no general non-discrimination law to protect marginalized people in El Salvador. That’s found at tab 6.3. The objective documentary evidence indicates that El Salvador LGBTQ people are particularly exposed to violence in El Salvador which is linked to the discrimination they face on various fronts in their family life and working life, and it’s part of society generally. This relates to not only sexual orientation but gender expression as well. This is particularly troubling in El Salvador as it is among the most violent countries in the world. This is at tab 6.1 of the National Documentation Package. There is no official government data on hate crimes or bias motivated violence against LGBTQ people in El Salvador, but the evidence is replete with examples of violence against LGBTQ people and a lack of will on the part of the State to bring perpetrators to justice. That’s found at tab 6.3. The evidence also points to grave deficiencies in the country’s justice system and a lack of access to justice for LGBTQ people.

[12]     Not only do they face obstacles in reporting crimes against them because of the widespread social stigmatisation and the lack of acceptance, including within law enforcement, perpetrators often face impunity in cases of violence, that is at tab 6.3. This document also discusses the bias against the LGBTQ community that is prevalent within the police and justice sectors themselves. One cannot forget the background against which violence against LGBTQ community members occurs in El Salvador, that has been described as the murder capital of the world with a rate of 116 murders per 100 000 people in 2015. That’s also at tab 6.3.

[13]     The claimant has also provided… or, pardon me, you have also provided documentary evidence concerning the human rights situation of the LGBTQ community in El Salvador, the lack of police protection, and incidences of violence against the community. The research pieces at tab 6.2 also discusses in detail the pattern of systemic discrimination and violence against the LGBTQ people by the Salvadorian law enforcement itself. For all of these reasons and country conditions, I find you to be credible. I therefore find you’ve established on a balance of probabilities that you are a lesbian, that you were subjected to death threats at the hands of your former co-worker [XXX], and that you have otherwise experienced harassment and mistreatment in El Salvador as a result of your sexual orientation and it can also be said as a result of your gender expression. I also find that you have demonstrated subjective fear in El Salvador, that in view of the objective country evidence, is objectively well-founded.

STATE PROTECTION

[14]     I find that you have rebutted the presumption of State protection with clear and convincing evidence that the Salvadorian state would be unable or unwilling to provide you with adequate protection. The documentary evidence is replete with information about the risks facing people of the LGBTQ community in El Salvador and the lack of State protection for such people, including a widespread pattern of systemic discrimination and violence by law enforcement itself. This is found most pointedly at tab 6.2 as well as the country documents submitted by you. In addition, I have discussed above the legal vacuums that exist to protect LGBTQ people in El Salvador, including the absence of a general non-discri… discrimination law and a lack of enforcement of violent crime and harassment against LGBTQ people. For all of these reasons, I find that you have rebutted the presumption of State protection.

INTERNAL FLIGHT ALTERNATIVE

[15]     I find that you face a serious possibility of persecution throughout El Salvador as a result of the widespread stigmatisation of same-sex relations through El Salvador, the legal vacuums and lack of willingness from police to protect LGBTQ people, and moreover, the pattern of discrimination and violence actually perpetrated against LGBTQ people by law enforcement itself. The violence and lack of regard for human rights of LGBTQ people persists throughout the country, as does the lack of State protection. You have also testified credibly that people have explained to you [XXX] criminal involvement, his political connections through his father and his pattern of impunity from offenses like drunk driving because of those connections. Moreover, you would not be expected to ignore your sexual orientation if you were to return to El Salvador. I find that if you were to live your life as a lesbian in El Salvador, particularly one who presents in a way that you describe as masculine, you would face a serious possibility of persecution at the hands of members of the public, the authorities and [XXX]. Because you have a serious possibility of persecution anywhere in El Salvador, I will not analyze the second prong of the… of the IFA. For all of these reasons, I find that there is no viable internal flight alternative for you in El Salvador.

CONCLUSION

[16]     For all of these reasons, I find that you have established on a balance of probabilities that you have a subjective fear of return to El Salvador that is objectively well-founded. Having considered all the evidence, including your testimony, I find that you, [XXX] face a serious possibility of persecution in El Salvador on the Basis of your membership in a particular social group as a lesbian. I therefore find that you are a “Convention refugee” pursuant to Section 96 of the Act and I accept your claim. So, this concludes your hearing.