Citation: 2020 RLLR 163
Tribunal: Refugee Protection Division
Date of Decision: January 4, 2020
Panel: Doug Armstrong
Counsel for the Claimant(s): (no information available)
Country: Colombia
RPD Number: VB9-04639
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000178-000185
— DECISION AND REASONS BY THE MEMBER
PRESIDING MEMBER:
Reasons for decision
Introduction
[1] I have considered your testimony and the other evidence in the case and I’m ready to render my decision orally. A written form of these reasons will be sent to you and your counsel. It will be a transcript of what I am saying now. The written reasons may be edited for generally readability and references to the applicable case law and the documentary evidence may also be included.
[2] These are the reason for the decision in the claim of XXXX XXXX XXXX XXXX who claims to be a citizen of Colombia and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, IRPA.
[3] In rendering my decision I have considered the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, SOGIE, and also the Gender Guidelines.
Allegations
[4] You allege that you are a transgender female, where you were born with male sex organs but you identify since 2014 as a woman and you face persecution in Colombia for this reason.
[5] In 2014, you along with other trans women in Bogota were pressured to smuggle items into prisons and you were beaten when you refused.
[6] You moved to Tulua and you experienced discrimination there. You were fired from your job in XXXX 2014 when you went to work dressed as a woman.
[7] In XXXX 2015 you were insulted, beaten and injured in Bogota when you were dressed as a woman and you often experienced verbal abuse.
[8] You believe there is little effort by the government to protect trans people from discrimination and persecution. You fear persecution if you return to Colombia.
Determination
[9] I find that you are a Convention refugee as you have established that you face a serious possibility of persecution for reason of your being a transgender woman.
Analysis
Identity
[10] I find that your identity as a national of Colombia is established by your testimony and the supporting documentation filed, including certified copies of your passport and identity card in Exhibit 1.
[11] You testified that you prefer to be known as XXXX although you have no identity documents in that name.
Credibility
[12] I find you to be a credible witness and therefore believe what you alleged in support of your claim. You testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.
[13] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness and the reference there is to Maldonado.
[14] I find that you have established on a balance of probabilities that you are a transgender woman.
Objective basis of future risk
[15] Based on your credible allegations in testimony and the documentary evidence set out below, as well as the country condition evidence, I find that you have established that you face a serious possibility of persecution by reason of your being transgender if you were to return to Colombia by both state and non-state actors.
[16] You testified that you have always been attracted to women and you started feeling like a woman yourself in 2013 or 2014. You felt like and lived as a woman from 2014 until you left to come to Canada in 2018, except that the last six months you lived as a man in Colombia in order to be able to work and make money. You saved the money to come to Canada.
[17] You explained that you prefer to live as a woman and you plan to make a physical transition from male to female, although you have not started that physical transition yet.
[18] You’ve explained that it was complicated to live as a trans woman in Colombia. You lived for about a year with a group of seven other trans woman in Bogota who operated a XXXX XXXX but they also smuggled items into the prisons and they pressured you to do the same. You refused to do that and they beat you up.
[19] You got a job in your profession of XXXX XXXX in XXXX 2014 and in XXXX 2014 you began going to work dressed as a woman. You testified that your boss began to treat you strangely and make new demands that he would not normally require. You were fired from the job within a month of starting to dress as a woman. You believe that you were fired from this job because you’re transgender and you attempted to live as a woman openly.
[20] You moved to Tulua in XXXXorXXXX XXXX 2015 but you were not able to find work in your civil engineering profession. You moved back to Bogota in XXXXor XXXX 2016.
[21] You also testified that you have experienced verbal aggression, name-calling and you’ve been physically assaulted and injured in Colombia all because you are living as a trans woman.
[22] You think the safest place to be able to live in Colombia is Bogota but you don’t believe you can live safely even there because of the fear of aggression, assault and not being able to work as a woman.
[23] You testified that Colombia has a closed culture in terms of opinion and sexual orientation.
[24] Your fears relating to the risks you face if you live openly as a transgender woman in Colombia are corroborated by documents in the NDP, that’s the National Documentation Package for Colombia, the March 29th, 2019 version.
[25] I’ve considered the documentary evidence on the treatment of sexual minorities in Colombia. The legal framework for the protection of rights of sexual minorities is relatively progressive; however, in practice SOGIE individuals face significant discrimination in many facets of life and violence from society at large.
[26] The legal protections that exist for sexual minorities are outlined in a Response to Information Request, or RIR, on the treatment of sexual minorities, which is NDP item 6.3.
[27] NDP item 2.1 from the US Department of State says in part:
“Transgender individuals cited barriers to public services when health care providers or police officers refused to accept their government-issued identification. Some transgender individuals stated it was difficult to change the gender designation on national identity documents —
INTERPRETER: Sorry, can you repeat again after what you said about health service providers?
PRESIDING MEMBER: Or police officers.
INTERPRETER: Pardon me. Thank: you.
PRESIDING MEMBER: Okay.
“Some transgender individuals stated it was difficult to change the gender designation on national identity documents and that transgender individuals whose identity cards listed them as male were still required to show proof they had performed mandatory military service or obtained the necessary waivers from that service.”
[28] NGOs or non-governmental organizations claimed discrimination and violence in prisons against persons due to their sexual orientation and gender identity remained a problem.
[29] Despite government measures to increase the rights and protections of lesbian, gay, bisexual, transgender and intersex, or LGBTI persons, there were reports of societal abuse and discrimination as well as sexual assault. NGOs claimed transgender individuals, particularly transgender men, were often sexually assaulted in so-called corrective rape.
[30] The constitutional court pronounced in 2016 that transgender persons faced discrimination and social rejection within the LGBTI community and recommended measures to increase respect for transgender identities in the classrooms. That report also says that NGOs reported several cases of threats against LGBTI human rights defenders as well as a high level of impunity for crimes against LGBTI persons. Such organizations partially attributed impunity levels to the failure of the Attorney General’s Office to distinguish and effectively pursue crimes against LGBTI persons.
[31] NDP item 1.7, the UNHCR Eligibility Guidelines also refers to some serious levels of discrimination against SOGIE individuals:
“Individuals of diverse sexual orientations and/or gender identities, SOGIE, are victims of discrimination. Social movements demanding the recognition of the rights of gay men and lesbians have progressively made important though insufficient progress, including the recognition of the inheritance rights of same-sex couples, same-sex marriage and adoption by couples of the same sex.
Paradoxically, simultaneously with the advancement in terms of recognition of the rights of these individuals, violent incidents seem to have increased. Persons of diverse sexual orientations and/or gender identities have reportedly been exposed to torture in detention and to police violence. Furthermore, authorities often do not initiate investigations into cases of homicide and sexual violence against persons of diverse sexual orientations and/or gender identities.
A SOGIE rights organization in Colombia, Colombia Diversa, has recorded and verified 550 cases of homicide related to sexual orientation and/or gender identity in the period 2009 to 2014, including among the victims at least 86 transgender women and at least 18 SOGIE rights defenders.”
[32] That report also says that particularly with respect to armed groups:
“NGOs have said that armed groups have imposed on persons of diverse SOGIE widely accepted gender roles by threatening to use violence as a punishment for not conforming. Some NGOs have also reported that the punishments perpetrated by guerilla groups, members of paramilitary groups including inter alia threats, assassinations, forced disappearances, grave physical and psychological harm and, above all, forced displacement of lesbian, gay and transgender persons.”
[33] The Colombia LGBTI Report at NDP item 6.4 states at page nine that:
“Violence against LGBTI Colombians is pernicious and widespread. While there is no official government data that captures it, activists and individual accounts suggest a reality in which violence against LGBTI people permeates every sector of society: schools and universities, public places and city streets, families and communities.”
Nexus and nature of the harm
[34] I find that your fear of persecution has a nexus to the Convention ground as a member of a particular social group as a transgender person.
[35] The harm that you fear is serious. The documentary evidence as well as your testimony indicates that violence against SOGIE persons in particular and transgender people is quite widespread and conducted with impunity.
[36] As well, the level of discrimination by society at large is severe, particularly with respect to people who are transgender.
[37] I find based on all of the evidence before me that you face a serious possibility of persecution for reason of being a transgender woman if you return to Colombia.
State protection
[38] I have also considered whether state protection is available to you in Colombia. I find that adequate state protection would not be reasonably forthcoming in this particular case. You testified that you did not seek help from the police after the assaults and aggression that you experienced because you’ve been told that many trans women are mistreated by the police. You have not been mistreated by the police yourself but you know of other trans women who have been mistreated.
[39] I find that the documentary evidence on the treatment of sexual minorities indicates that crimes against SOGIE people is done with impunity. The US Department of State Report, item 2.1 in the NDP says that:
“As of September 18th, the Attorney General’s office was investigating at least two alleged homicides of LGBTI individuals. Investigations into crimes committed by the security forces did not appear in the Attorney General’s office system. NGO Colombia Diversa reported six cases involving eight victims of police abuse of persons due to their sexual orientation or gender identity with the majority of complaints coming from transgender individuals.”
[40] So, there is evidence that the authorities themselves are responsible for the abuse of persons for their sexual orientation or gender identity.
[41] The UNHCR Guidelines at item 1.7 in the NDP states that state authorities, especially the police, are reported to participate in violent acts against persons of diverse sexual orientation and gender identity. This document also notes at page 51:
State authorities, especially the police, are reported to participate in violent acts against persons of diverse sexual orientations and/or gender identities. In its report for the Committee Against Torture, Colombia Diversa recorded 212 incidents of police violence in the period 2008 to 2014. Moreover, police reportedly often failed to acknowledge the existence of prejudice as the primary cause of violent incidents against person of diverse sexual orientations and/or gender identities. In some cases such incidents are reportedly classified as personal violence having been caused by the behaivour of the victim. Individuals of diverse SOGIE are not included among the profiles identified by the government as specifically at risk of violence or harm and therefore are not eligible for special protection.”
[42] I find that the level of protection provided by the state in Colombia falls far short of being adequate given the impunity with which crimes against SOGIE individuals are treated and as well as recurring reports of police being involved in the abuse of these groups.
Internal flight alternative
[43] I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Colombia. I find that as a Colombian national who is transgender there is nowhere you could reasonably live safely in Colombia. The discrimination against someone like you would be severe and you face a serious possibility of persecution throughout the country.
Conclusion
[44] Based on the analysis above, I conclude that you are a Convention refugee. Accordingly, I accept your claim.
[45] Thank you for attending today and I wish you good luck.
—PROCEEDINGS CONCLUDED