Citation: 2020 RLLR 168
Tribunal: Refugee Protection Division
Date of Decision: December 3, 2020
Panel: Francis Chaput
Counsel for the Claimant(s): Jonathan Richard J Lage
Country: Saudi Arabia
RPD Number: MC0-01470
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000073-000078
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX, a.k.a XXXX XXXX XXXX XXXX, a.k.a. XXXX XXXX, who claims to be a citizen of Saudi Arabia, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the Act).
[2] This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the Act.
[3] Also, while analyzing and rendering this decision, the Panel applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.
DECISION
[4] The Panel finds that the claimant is a refugee, pursuant to section 96 of the Act, as there exists a serious possibility of persecution, should he return to Saudi Arabia, on account of his membership in a particular social group, specifically based on his sexual orientation and gender identity as a transgender man.
ALLEGATIONS
[5] The claimant’s allegations are found in his Basis of claim form (BOC), which was submitted on XXXX XXXX XXXX 2020. In summary, the claimant alleges the following.
[6] Born as a female, the claimant self-identifies as male.
[7] The claimant is a citizen of the Kingdom of Saudi Arabia (KSA).
[8] Since a very young age, the claimant acted like a boy and preferred playing with boys, rather than girls. When he was six years old, the claimant did not like his own hair and tried to cut it on his own. When he started school, the claimant was aware that he was different from the other girls and that a girl’s school was not his place.
[9] At the age of nine, the claimant was forced to wear the hijab and to cover his body. He was also prohibited from his family to play or even to associate with boys.
[10] Between the age of ten and sixteen, the claimant’s life became very difficult and confusing and he went into XXXX.
[11] At the age of seventeen, the claimant cut his hair. When his family discovered what he had done, his parents isolated him in his room for one year and his brother tried to kill him.
[12] It is only in his 20s that the claimant accepted his sexual orientation. He had his first relationship with a woman while studying at university. His heart was broken when his girlfriend’s family forced her to marry a man she barely knew.
[13] The claimant then began to believe that he was wrong and that his family was right. The claimant then lost himself in religion in an attempt to end his sadness. Meanwhile, the claimant’s father tried to get the claimant married. When the claimant refused, he was punished by his father and his brother. The claimant was then once more isolated, hospitalized, and forced to take estrogen, by his family in order for him to be “cured”.
[14] The claimant later became a XXXX XXXX and XXXX XXXX XXXX and became well known in the Arab world.
[15] The claimant also consulted a XXXX who told him that he had transgender issues and that he should research “LGBTQ” to help himself to come to terms with his sexual identity, which he did.
[16] The claimant then abandoned Islam because it condoned the punishment of LGBTQ persons. In 2019, the claimant’s brother attacked him for questioning Islam and threatened to kill him. The claimant’s father then confined the claimant to his room for three months. It is during these three months that the claimant came to the conclusion that he had no other choice than to leave the country.
[17] The claimant lied in order to gain permission from his family to leave the country. His father gave him permission to join his niece who was studying in the United States. At the same time, the claimant secretly applied for a Canadian visa which was issued on XXXX XXXX XXXX 2019.
[18] The claimant left the KSA on XXXX XXXX XXXX 2019, and came directly to Canada. He finally submitted his asylum claim on XXXX XXXX XXXX 2020.
[19] The claimant cannot return to the KSA where he fears to be targeted, persecuted and killed because of his gender identity and sexual orientation as a transgender man.
ANALYSIS
Identity
[20] The Panel finds that the identity of the claimant as a national of Saudi Arabia is established by the documents provided: namely his passport and birth certificate.1
Credibility
[21] Based on the documents in the file, the Panel has noted no serious credibility issues. In particular, the evidence establishes the allegations of the claimant as a transgender man as set out above. In fact, the passport and birth certificate of the claimant mention the claimant’s gender to be “female”. The claimant also submitted his temporary driver’s licence which shows the claimant’s name and his sex as being “M/H” which stands for “man/homme”.
[22] The claimant further submitted a letter from the Transgender Health Clinic where it is mentioned that the claimant, XXXX XXXX XXXX XXXX XXXX, is undergoing hormone replacement therapy since XXXX XXXX XXXX 2020, to affirm his gender as a man.
[23] The claimant also submitted a letter from the XXXX XXXX XXXX in Ottawa, where the letter was sent to the claimant under his name XXXX XXXX. The claimant also submitted another letter from XXXX XXXX and pictures of letters he received at his attention under the name of XXXXXXXX.
[24] After reviewing the documents, the Panel has no reason to doubt their authenticity. In the light of this documentary evidence, the Panel finds that the claimant was able to establish, on the balance of probabilities, that he is a transgender man.
Objective basis
[25] According to the documents found in the National documentation package on the KSA – March 21, 2020, version (CND), LGBT rights are not recognized in the KSA and both male and female same-sex sexual activities are illegal. Also, the KSA operates an uncodified criminal code based on Sharia law. Under this framework, sex outside marriage is also illegal, same-sex marriage is not permitted, and same-sex intimacy is criminalized. In the KSA, homosexuality and being transgender is widely seen as immoral and indecent activities. The law also punishes acts of homosexuality and cross-dressing with severe punishment such as torture, prison up to a lifetime, and capital punishment. Members of the LGBTQ community have also been ostracized and, in some cases, been exposed by their own family members.
[26] This situation faced by homosexuals and transgender persons in the KSA is corroborated by news articles and reports submitted by the claimants and also by the documents in the National Documentation Package under tabs 2.1, 2.4, 2.9, 6.1, 6.2 and 6.3.
[27] Given that there are no serious credibility issues with respect to the allegations of the claimant, coupled with the documentary evidence cited previously, the Panel finds that the claimant has established a prospective risk of being subjected to the following harm(s): arrest, detention, torture, and being killed.
Nature of the harm
[28] The Panel has examined this claim under section 96 of the Act, as it concludes that the risks the claimant faces constitute persecution based on at least one of the grounds prescribed in the Refugee Convention, specifically his membership in a particular social group, specifically based on his sexual orientation and gender identity as a transgender man.
State Protection
[29] The Panel finds that there is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection. Since homosexuality and being a transgender person is criminalized in the KSA, the Panel finds that it would be clearly unreasonable for the claimant to ask for protection from the KSA authorities. Thus, the Panel concludes that the claimant has rebutted the presumption of state protection.
Internal flight alternative
[30] Finally, the Panel has examined whether a viable internal flight alternative exists for the claimant. Based on the evidence on file as previously cited, I find that the claimant faces a serious possibility of persecution throughout the KSA.
Conclusion
[31] In light of the preceding, the Panel concludes that the claimant is a Convention refugee, pursuant to section 96 of the Act and accepts this claim.
(signed) Francis Chaput
December 3, 2020
1 Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada.