Citation: 2021 RLLR 17
Tribunal: Refugee Protection Division
Date of Decision: July 9, 2021
Panel: Megan Kammerer
Counsel for the Claimant(s): Samuel E. Plett
Country: Russia
RPD Number: VC0-03444
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000066-000073
On July 9, 2021 the Refugee Protection Division (RPD) heard the claim of XXXX XXXX XXXX A.K.A. 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, where appropriate.
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, who also goes by the chosen name of, XXXX XXXX, and is referred to as “the claimant” in this decision, as a citizen of Russia, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.
[2] In assessing this claim, I considered and applied the guidelines on sexual orientation and gender identity and expression; the SOGIE Guidelines, to ensure that appropriate accommodations remain in questioning the claimant, the overall hearing process, and in substantively assessing the claim.
Allegations
[3] The claimant alleges that they identify as a non-binary transgender person. They allege that they face persecution in Russia due to both their gender identity and because they are a person born biologically male and are married to another person who is male. The claimant alleges that they fear persecution and violence from Russian authorities, members of the public, and their family.
Determination
[4] I find that the claimant has a well-founded fear of persecution and is, therefore, a Convention refugee under section 96 of the Act.
ANALYSIS
Identity
[5] I find that the claimant’s identity as a national of Russia has been established on a balance of probabilities by their testimony and a copy of their passport.
Credibility
[6] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is a reason to doubt their truthfulness. In this case, I have found no reason to doubt the claimant’s truthfulness. The claimant testified in a straightforward and convincing manner and answered all of the questions posed to them.
[7] The claimant was able to speak in detail about their gender identity and their process of self-discovery, what it is like as a trans-gendered person in Russia, the discrimination they faced in Russia as a child, and the risks that they would face if they were to return to Russia.
[8] In addition, the claimant has provided an extensive number of documents which corroborate their claim. These include the following: various documents which establish the ongoing spousal relationship between the claimant and their Canadian spouse, XXXX, including bene-fit payments, car insurance, property assessments, and mobile account information; various photographs depicting the claimant with their Canadian spouse, XXXX. There are a number of different photographs of different events in 2019 and 2020, including the claimant and XXXX wedding; an affidavit sworn by the claimant’s biological father, which corroborates the claimant’s allegations, and which outlines how and when the claimant disclosed their gender identity and relationship with XXXX to him in 2018; an affidavit sworn by the claimant’s stepmother, which corroborates the claimant’s allegations, which confirms that she and the claimant’ s father are aware of the claimant’s gender identity and consider it genuine, and which outlines how distressed and fearful the claimant was when they learned they may have to return to Russia; an affidavit of support from the claimant’ s mother, which generally corroborates the claimant’ s allegations and which confirms that she is aware of the claimant’s gender identity and is aware of the claimant’s relationship with XXXX; an affidavit of support from a friend of the claimant. The friend attests that she knows the claimant as a non-binary, transgender person, and provides evidence about her experiences living as a gender non-conforming person in Russia; an affidavit of support from the claimant’s former partner, XXXX XXXX (ph), which generally corroborates the claimant’s allegations, attests to the fact that they were in a romantic relationship before the claimant left Russia, and confirms that they had plans to both leave Russia, so that they could be together in another country; a letter of support from a representative of the XXXX XXXX XXXX. which provides services and supports to families in Oakville, Ontario. The representative confirms that the claimant identified themselves as non-binary when registering for this support, and that they seem pleased that other staff and volunteers were so accepting of their identity; a letter of support from a clinical psychologist who treated the claimant in the United States. Psychologist confirms that the claimant had a series of appointments in XXXX and XXXX 2019, which centred on issues of gender identity and the claimant’s fear of having to return to Russia. The psychologist confirms that during this time the claimant presented openly as transgender and that they explored the claimant’ s “journey to discover their gender identity as transgender and non-binary”. The psychologist states that in his professional opinion —
COUNSEL: Madam Member, I don’t mean to interrupt, but it looks like the claimant’s video is frozen.
MEMBER: Can you still hear me?
CLAIMANT: I can hear, yeah.
COUNSEL: Okay.
MEMBER: Okay.
COUNSEL: It’ s just your video’ s frozen.
MEMBER: I’ll continue on.
COUNSEL: Yeah.
MEMBER: I’ll continue on, but if at some point you ‘re not able to hear or you cut out, please try to let us know.
CLAIMANT: Okay.
COUNSEL: If — if — if your audio cuts out, just come to the office where I am and then I’ll let the Member know.
CLAIMANT: Will do, yeah.
COUNSEL: Thank you.
[9] MEMBER: Okay. The psychologist states that in his professional opinion, the claimant’s expression of their gender identity as transgender and non-binary is genuine; a letter of support from the claimant’s physician in Canada, which confirms that when taking their initial health history, the claimant identified themselves as a non-binary person and mentioned potentially being interested in gender affirming therapy; a letter of support from the claimant’s former academic advisor in the United States, which generally confirms the claimant’s allegations; a letter of support from a friend of the claimant and their spouse, who attests to the fact that he often drove XXXX to the United States to meet the claimant, and that he was present at their wedding; a letter of support from a friend of the claimant, which indicates that they came out as transgender in 2019, and which indicates that the claimant is a XXXX of a XXXX called XXXX XXXX, which provides support and advocacy to transgender and non-binary individuals; a letter of support from a co-worker and friend of the claimant which confirms that he and claimant have discussed their gender identity and fear of returning to Russia as a LGBTQ+ person; and, a letter of support from a close friend of the claimant in the United States, which generally confirms the claimant’s allegations.
[10] The claimant also indicated that their spouse, XXXX, was available to act as a witness. I did not find it necessary to ask XXXX to testify, given the extensive documentary evidence submitted and the credible nature of the claimant’s testimony. I note that the claimant did not initiate a refugee claim in the United States even though they lived in that country for several years. They explained that this is because their spouse is Canadian and that they did not want to be separated from their spouse for the length of time it would take for their claim to be processed.
[11] The claimant also explained that the political climate in the United States at the time was negative and hostile towards LGBTQ+ persons and that they were afraid of being detained in unsafe conditions, given their status as a gender non-conforming individual. I accept this explanation and do not find that it undermines the claimant’s credibility or subjective fear.
[12] I note as well that the claimant has visited their mother in France and did not make a refugee claim there. The claimant explained that this was because they did not want to be separated from their Canadian spouse. I accept this explanation and do not find that it undermines the claimant’s credibility or subjective fear.
[13] I find the claimant to be credible and I believe what they have alleged in support of their claim.
Nexus
[14] The claimant alleges that they are at risk, due to both their gender identity and their perceived sexual orientation. I find that the persecution the claimant fears has a nexus to the Convention ground of particular social group; namely, transgendered individuals and individuals who are perceived to be LGBTQ+. I have, thus, assessed this claim under section 96 of the Act.
The Claimant’s Status in the United States
[15] The claimant lived in the United States from 2012 until 2019, during which time they were enrolled in a graduate program at the University of Massachusetts. The claimant testified that they had a student visa and has provided a copy of a certificate of eligibility for non-immigrant student status, as well as various other documents confirming their immigration status.
[16] The claimant testified that they became scared about the possibility of having to return to Russia when they graduated from their university program because they did not have permanent status in the United States, and that they explored the possibility of obtaining and employment visa; although this was ultimately unsuccessful.
[17] I find that the clamant does not have status substantially similar to that of a national or access to such status in the United States, and is, therefore, not excluded pursuant to Article 1(e) of the refugee Convention. I note that the claimant’s father is an American citizen and has been living in the United States since approximately 1997, and that the claimant’s mother is a citizen of France and has been living there since approximately 2010.
[18] The objective evidence in the National Documentation Packages for both countries indicates that the claimant, as an adult, does not have a right to citizenship of either country by a virtue of the parent-child relationship.
[19] I, thus, find that neither the United States nor France is a country of reference in this claim.
Well-Founded Fear of Persecution
[20] The claimant identifies as a non-binary transgender person. They testified that their earliest memories are of being gender non-conforming and recounted being bullied and harassed at school for presenting as too feminine. The claimant explained that they started the process of discovering their identity when they started college in Russia through exposure to the internet and Western sources.
[21] The claimant testified about the process of discovering their transgender identity and the role that their spouse, XXXX, played in that process. They reference the fact that they had experienced a lot of pressure to conform throughout their life and that XXXX was the first person who they could talk to about their gender identity and who supported their self-discovery.
[22] The claimant testified about the risks they would face if they were to return to Russia. They indicated that transgender people who do not fit into gender norms are at risk of physical violence. They reference being aware of several cases where transgendered people have been killed or injured due to their gender identity. They also indicated that, in general, Russian society is very hostile to transgender people and that their family in Russia would not be accepting of their identity.
[23] The objective evidence demonstrates that LGBTQI+ peoples, including those who are transgender and those who are perceived to be homosexual, face treatment in Russia that amounts to persecution. Although homosexuality has been decriminalised in Russia since 1993, in 2013, a law banning the promotion of “non traditional sexual relations” came into force.
[24] Sources cited Item 6.1 of the National Documentation Package indicate that the law is frequently invoked to punish the exercise of free speech by LGBTQI+ persons and their supporters. The government uses a law to restrict any materials that directly or indirectly approve of persons who are non-traditional sexual relationships and to limit the rights of persons who advocate for LGBTQI+ rights or express the opinion that homosexuality is normal.
[25] The United States Department of State Item 2.1 of the National Documentation Package identifies crimes involving violence or threats of violence against LGBTQI+ persons as one of the most significant human rights issues in Russia. There are reports of State actors committing violence against LGBTQI+ persons based on their sexual orientation or gender identity. There are also reports of government agents attacking, harassing, and threatening LGBTQI+ activists. Sources cited at Item 6.1 of the National Documentation Package further indicate that state controlled media engages in a “homophobic campaign”, which is directed against LGBTQI+ persons. Reports have identified a number of recurring themes and mainstream media coverage in Russia, including statements by public officials that portray LGBTQI+ identities as contradictory or Russian and Orthodox values and as a Western phenomenon imposed by Europe as part of an agenda to weaken and alienate Russia.
[26] The UK Home Office at Item 6.4 of the National Documentation Package reports that politicians use transphobic hate speech, which encourages stigma and intolerance amongst the population. Sources indicate that LGBTQI+ persons in Russia face discrimination and are exposed to the threat of violence in their places of study or work when searching for housing and when attempting to access medical care. This is so, even if an individual is not officially out, but simply presents as gender non-conforming. According to one source cited at Item 6.1 of the National Documentation Package, “even if LGBT individuals are not officially out, it is enough for individuals to be suspected of being gay or lesbian for them to be the subject of verbal or physical abuse. Failing to adhere to established gender norms in dress or behaviour, being overly affectionate to someone of the same sex or living with someone of the same sex are tantamount to coming out and can thus result in the risks set out above.”
[27] Sources indicate that medical practitioners limit or deny LGBTQI+ persons health services due to intolerance and prejudice. The Russian LGBT network representative cited at Item 2.1 of the National Documentation Package indicates that upon disclosing their sexual orientation or gender identity, LGBTQI+ individuals often encounter strong negative reactions and the presumption that they are mentally ill.
[28] Sources cited at Item 2.1 of the National Documentation Package also indicate that transgender persons are uniquely vulnerable to discrimination. This is in part because transgender persons face difficulty updating their names and gender markers on government documents to reflect their gender identity and because the government has not established standard procedures, and many civil registry offices deny their requests. When documents fail to reflect their gender identity, transgender persons face harassment by law enforcement officers and discrimination in accessing health care, education, housing, transportation, and employment.
[29] Moreover, the United States Department of State at Item 2.1 of the National Documentation Package, reports that the LGBTQI+ persons are particular targets of societal violence and that the police often fail to respond adequately to such incidents. For example, the Russian LGBT network reported that a transgender man was attacked while he was leaving a supermarket in the Kursk Region in April 2020. The assailant grabbed a man by the neck, beat him, and threatened to kill him. The man sustained serious injuries. Although he filed a report, the police did not investigate the incident and refused to open a criminal case.
[30] There are numerous other similar examples of the failure of the authorities to respond when violence or credible threats of violence are made against LGBTQI+ persons, and these are cited in the National Documentation Package.
[31] There are also reports that Item 2.1 of the National Documentation Package that the authorities have conducted involuntary physical exams of transgender persons, physically and sexual abuse transgender people, and subjected transgender individuals to detention, assault, harassment, and humiliating treatment. The UK Home Office reports at Item 6.4 of the National Documentation Package, that law enforcement personnel used violence and torture to extract confessions. As well, as is set out in the SOGIE guidelines, it is well-established in law that being compelled to conceal one’s gender identity or sexual orientation constitutes a serious interference with fundamental human rights, and a claimant cannot be expected to conceal their gender identity as a way to avoid persecution.
[32] It is apparent that the claimant has engaged in a significant measure of behavioural self-censorship while living in Russia, they have been unable to live openly as a non-binary transgendered person in Russia. The objective evidence in the National Documentation Package is overwhelming regarding the persecution and ill-treatment of member of the LGBTQI+ community, which includes transgendered persons, such as the claimant. I find that the claimant would face a serious possibility of persecution by the government as Russia — of Russia, as well as from non-state actors, if they were to return to their country of nationality.
State Protection
[33] I have considered whether adequate state protection is available to the claimant in Russia and conclude that it is not. A State is presumed capable of protecting its citizens to rebut this presumption, a claimant must establish on a balance of probabilities with clear and convincing evidence that their State’s protection is inadequate. In this case, I find it would be objectively unreasonable for the claimant to seek state protection in Russia because it is in part the State that the claimant fears due to its pattern of persecution and prosecution of sexual minorities.
[34] Further, the objective evidence demonstrates that there is no government support for LGBTQI+ persons in Russia and that the law does not prohibit discrimination against LGBTQI+ persons in housing, employment, or access to government services such as health care.
[35] I, thus, find on a balance of probabilities, that the State would be unwilling or unable to provide adequate protection to the claimant if they were returned to Russia. The presumption of state protection has been rebutted.
Internal Flight Alternative
[36] I have also considered whether a viable Internal Flight Alternative exists for the claimant and find that it does not. The evidence before me indicates that transgendered persons are persecuted throughout Russia. I, thus, find that the claimant faces a serious possibility of persecution throughout the entire country. The claimant does not have an IFA.
CONCLUSION
[37] For these reasons, I find that the claimant is a Convention refugee, and I accept their claim. All right. So that concludes my decision in your claim.
CLAIMANT: Thank you.
MEMBER: You — I want to thank you very much for participating in this hearing today, and I want to welcome you to Canada.
CLAIMANT: Thank you so much.
MEMBER: Yeah. Thanks as well to you, Counsel. So, what I’m going to do now, is I’ll stop the recording and then I will disconnect the proceedings.
COUNSEL: Thank you Madam Member.
———- REASONS CONCLUDED ———-