Citation: 2020 RLLR 154
Tribunal: Refugee Protection Division
Date of Decision: January 7, 2020
Panel: Roslyn Ahara
Counsel for the Claimant(s): Pablo Andres Irribarra Valdes
Country: Hungary
RPD Number: TB8-01210
Associated RPD Number(s):
ATIP Number: A-2022-00210
ATIP Pages: 000105-000108
DECISION
[1] MEMBER: These are the reasons for decision in the claim for refugee protection of XXXX XXXX, otherwise known as XXXX XXXX who claims to be a citizen of Hungary and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[2] In deciding this claim, the Panel considered Guideline 9. The purpose of the Guideline is to promote greater understanding.
INTERPRETER: That is actually way to fast.
MEMBER: Oh yes, sorry, sorry and it’s ok if-, XXXX you understand there has- I have to read in about you know five minutes of-, she understands ok. I just want to let you know, so I am accepting you.
INTERPRETER: Thank you.
[3] In deciding this claim the Panel considered Guideline 9. The purpose of the Chairperson’ s Guideline 9 is to promote greater understanding of cases involving sexual orientation and gender identity and expression, and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms. This Guideline addresses the particular challenges individuals with diverse SOGIE may face in presenting their cases before the Board and the Panel was mindful of these issues in coming to a decision in this claim. The Panel has also considered the psychiatrist and related reports provided by the claimant in Exhibit 4.
ALLEGATIONS
[4] The claimants allegations are contained in her Basis of Claim form. The claimant alleges a fear of persecution at the hands of Hungarian government and authorities because of her sexual orientation and gender identity as a transgender woman.
DETERMINATION
[5] The Panel finds that the claimant has established a serious possibility of persecution because of her membership in a particular social group, arising from her sexual orientation and as a gender woman-, a transgender woman and is therefore a Convention refugee pursuant to Section 96 of IRPA.
IDENTITY
[6] The claimant’s identity as a national of Hungary is established by her testimony and the certified true copy of her Hungarian passport in Exhibit 1.
CREDIBILITY
[7] Overall, the Panel finds that the claimant was a credible witness on what is core to her claim, her sexual orientation and gender identity. The Panel believes what the claimant alleged in support her claim. The claimant testified in straightforward manner and there were no relevant inconsistencies in her testimony, the oral or written testimony, or contradictions. Her testimony about her experiences as a transgender was spontaneous in detail. The Panel finds on a balance of pro-, probabilities the following, one first, at an early age she identified as a female and preferred female clothing. In her teenage years she was attracted to males and endured bullying and homophobic slurs from her classmates. Second, about 2000 around age XXXX, she created a profile on a couple of dated websites, carefully identifying herself as-
INTERPRETER: Your still too fast, I’m sorry.
MEMBER: Oh yes, sorry.
INTERPRETER: In Hungarian you know we have a lot of words like that, sorry I would like to ask you to (inaudible).
MEMBER: Ok, yeah, yeah absolutely.
COUNSEL: Would you be able to summarize instead, like I think usually …
INTERPRETER: Summarize? Sure.
COUNSEL: Because we’ll have the written version of this-, the, of the written …
MEMBER: Yeah, you can get the transcript.
INTERPRETER: So, I’ll just try to do my best.
MEMBER: Ok yeah that’s-, yeah. So, speaking to the transcription we’ll resume now and some of it is just background, ok.
So, about the year 2000 at age XXXX, she created a profile on a couple of dating websites carefully identifying herself as female. She gradually communicated with and met with other individuals identifying as cross dressers. Three, there is widespread hostility in Hungary towards sexual minorities and this has made it difficult and dangerous for members of the LGBTIQ+ community to have same-sex relationships. Four, due to the homophobic and transphobic attitudes common in Hungarian society the claimant kept her sexuality and gender identity a secret as much as possible.
[8] The claimant described multiple inc-, incidents of homophobic and transphobic violence ranging from verbal abuse, threats, and harassment to severe physical attacks which the Panel finds credible. When the claimant moved to XXXX, UK for work and then returned, the Panel finds that her failure to perhaps have claimed refugee protection in UK does not detract from subjective fear or credibility with respect to her claim against Hungary. Back in her hometown of XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, she described a beating into unconsciousness by an old high school tormentor and several more beatings after that. The claimant testified that these, that the Hungary police officers were homophobic and might even make the situation of trying to stay in the closet more hostile for her, so there was no point filing reports with the police. The Panel finds this reasonable based on the objective country evidence described below. The claimant decided to move to Toronto, Canada, she arrived in XXXX 2014. She did not claim refugee protection until 2017 because she still did not feel comfortable disclosing her sexual orientation and gender identity. But at the end of2016 at a restaurant in Toronto, she noticed a cross dressing man working openly and safely as a server, so she finally connected with the LGBTQ community and 519 Community Centre and was referred to a lawyer.
[9] The claim is well documented with evidence of the claimants allegations including her social media posts. The Panel does not draw a negative inference from the claimants delay in claiming in Canada. The Panel is satisfied on balance of probabilities that the claimant is a transgender woman attracted to men and that she has a subjective fear of persecution because of her sexual orientation and gender identity if she returns to Hungary.
[10] So just a few things on the objective basis, the Panel finds that the claimant subjective fear of persecution has an objective basis based on the documentary evidence and is therefore well-founded. The documentary evidence on country conditions indicates that Hungary is a seriously dangerous place for a lesbian, gay, bisexual, trans or queer persons despite improvements on a legislative front after around 2012. According to the Háttér Support Society for LGBTQI persons in Hungary, the protection that is offered to LGBTQI persons remains only on paper and laws prohibiting hate crimes against such persons are seldom enforced.
[11] The US State Department of 2018 indicates that, despite legal protections right wing extremists continue to abuse the LGBT community. Law enforcement and other authorities often disregard the hate element of these crimes when no protocol or regular training on this subject existed. I’ve noted in particular the Response to Information Request HUN 106337 dated July 30th 2019 and titled Treatment of Sexual and Gender Minorities, including legislations, state protection and support services. This document indicates that Hungarian authorities do not provide adequate protection to LGBT persons suffering serious human rights abuses of whatever nature in Hungary because of the Hungar-, because the Hungarian government and police tend to share and support the deep-seated homophobia found in Hungarian society as a whole. And these documents indicate that rather than protect Hungary-, rather than protect, Hungarian police and authorities persecute LGBT persons, and there’s a lot more there.
[12] In the particular circumstances of this case therefore, the Panel finds that it would be objectively unreasonable for the claimant to seek protection of the Hungarian State. The Panel finds on a balance of probabilities that the claimant has rebutted the presumption of state protection with clear and convincing evidence. The Panel also finds that the objective evidence establishes the authorities operate similarly throughout Hungary as the same homophobic, transphobic attitudes are evidenced-, evident throughout. And the claimant faces a serious possibility of persecution throughout Hungary because of her sexual orientation and gender identity. Therefore, a viable internal flight alternatives are not available to the claimant.
[13] Based on the forgoing analysis, the Panel concludes that the claimant is a Convention refugee and her claim is accepted.
———- REASONS CONCLUDED ———-