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2021 RLLR 12

Citation: 2021 RLLR 12
Tribunal: Refugee Protection Division
Date of Decision: November 16, 2021
Panel: J. Schmalzbauer
Counsel for the Claimant(s): Aiden Connor Campbell
Country: Pakistan
RPD Number: VC1-03717
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000038-000043

REASONS FOR DECISION

INTRODUCTION

[1]     This is the decision of the Refugee Protection Division (“RPD”) in the claim of XXXX XXXXA.K.A XXXX XXXX (the “claimant”) as a citizen of Pakistan who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act“).1

[2]     The panel, has taken into consideration and applied the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, to address the issues that are critical to women refugee claimants, including the recognition of women being a particular social group.2

[3]     The panel has applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE) as this case involves sexual orientation, gender identity and expression, and the harm individuals may face due to their nonĀ­ conformity with socially accepted gender norms.3

DETERMINATION

[4]     The panel finds that the claimant is a Convention refugee, as she does have a well-founded fear of persecution due to her membership in a particular social group.

ALLEGATIONS

[5]     The following is a brief synopsis of the allegations that the claimant put forth in the Basis of Claim (BOC) form and narrative.4 The claimant is a twenty-six-year-old citizen of Pakistan who is claiming refugee due to her risk of persecution in Pakistan due to their gender identity. The claimant also fears persecution due to her agnosticism.

[6]     The claimant submits in her allegations of her conflict of wanting live as a woman but being unable to do so in Pakistan. She also submits her lack of adherence and belief in Islam was known by her family but unacknowledged and unspoken about.

[7]     The claimant left Pakistan in XXXX 2016 to study in Canada. During her time in school in Vancouver the claimant became more open bout her gender and started coming out to friends an living as XXXX XXXX. In 2019 the claimant told her parents, but they were not supportive and reuse to accept her gender identity and has not had further communication with her father since.

[8]     The claimant now lives opening on social media but is a self-described introvert that infrequently socializes and has few friends in Vancouver. The claimant filed for protection and filed and signed her BOC September 2020.

ANALYSIS

Identity/Country of Reference Pakistan

[9]     The panel is satisfied on a balance of probabilities, in the claimant’s identity and citizenship, considering the certified copy of the current Pakistan passport.5

Well-Founded Fear of Persecution

[10]   The claimant fears persecution due to her membership in a particular social group, as a person with non-conforming gender identity. The duty of this panel is to find if there is sufficient credible or trustworthy evidence to determine that there is more than a mere possibility that this claimant would be persecuted.

[11]   LGBTIQ+ is an umbrella term for the community of lesbian, homosexual, bisexual, nonĀ­ heterosexual, transgender, non-binary, intersex, and queer people. The rights of LGBTIQ+ people are the same as human rights. There is not a single right that is inherent to transgender persons the issue lies in the ability to enjoy those rights freely and fully. The inequality of opportunities and access can manifest themselves at different levels, i.e., legal restrictions and social practices.

[12]   The country condition evidence before this panel, report that transgender woman, face discrimination in housing, education, medical care. Transgender people face harassment, mistreatment, and exclusion from society. Numerous incidents of violence, honour crimes and sexual violence is experienced by transgender people in Pakistan. Although authorities recognize transgender people including documenting individuals as a third gender as requested, there is little to no evidence that this recognition has diminished discrimination in society for this minority group.6

[13]   The panel finds, the country condition evidence clearly establishes that in Pakistan the basic human rights of persons of diverse gender identities are disregarded at all levels of society. The targeting of individuals even believed to be gay is an accepted practice by society and the state, given the increasing levels of violence and the impunity given to the perpetrators by the state. The panel further find that LBGTIQ+ persons, because of the current situation in Pakistan, are unable to live openly without fear of reprisals from the general public or the state. Persons of diverse gender identities have substantive violations against their right to life (Article 6), their right to prohibition of torture and cruelty, and inhuman or degrading treatment or punishment (Article 7), their right to liberty and security of the person (Article 9), their right to freedom from discrimination (Articles 2 and 26) and their right to freedom of assembly and association (Articles 21 and 22).7 Given the significant infringements upon the basic human rights of these individuals, the panel finds this systemic and pervasive treatment of sexual minorities in Pakistan does amount to persecution.

[14]   The panel accepts the claimant’s personal identity as a transgender woman, who lives openly here in Canada and has been open with her friends and family. The panel further notes, the claimant is outspoken with her anti-religious and gender opinions. Given the claimant’s credibility as to her identity, and the unequivocal country condition evidence of the treatment of individuals similar to the claimant, the panel finds the claimant would face more than a serious possibility of persecution.

State Protection

[15]   The panel must determine whether the claimant has access to state protection. The objective evidence before the panel is the Pakistan authorities routinely – intimidate, harass, and mock transgender complainants. There are reports of persons being illegally arrested by the police using provisions of the law that criminalize same sex relationships and they have been charged with cases related to defying the order of nature (unnatural offence against the order of nature), public nascence [sic], unnatural offences and indecent assault.8It is reported in the evidence that sexual minorities are discriminated and victimized by police.9 On the whole, the panel finds that in the case of the claimant it would be objectively unreasonable for her to approach authorities for her protection and therefore state protection is sufficiently rebutted in this case.

Internal Flight Alternative

[16]   The evidence before this panel is that discrimination and persecution of transgender persons is pervasive throughout Pakistan. Although pocket communities exist in large centres10, the panel finds these are nothing more than ghettoization of this vulnerable minority community. Considering the country condition evidence there is nowhere in Pakistan where the claimant could relocate and not continue to face more than a mere possibility of persecution for her identity, therefore the panel finds that there is no viable internal flight alternative for the claimant.

CONCLUSION

[17]   For the foregoing reasons, the panel concludes that the claimant is a Convention refugee and therefore accepts her claim. As the claim is accepted pursuant to Section 96 of the Act, there is no need to assess the claim made under Section 97(1)(b).

(signed) J. Schmalzbauer

November 16, 2021

Immigration and Refugee Protection Act. S.C. 2001, c. 27.

2 IRB Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

Ottawa, Canada, March 1993, updated November 1996.

2 Exhibit 2.

3 IRB Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), Ottawa, Canada, May 1, 2017.

4 Exhibit 2.

5 Exhibit 1.

6 National Documentation Package, Pakistan, 16 April 2021, tab 6.1: Treatment of sexual and gender minorities by society and authorities; state protection and support services available (2017-January 2019). Immigration and Refugee Board of Canada. 17 January 2019. PAK 106219.E.

7 United Nations (UN) General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

8 National Documentation Package, Pakistan, 16 April 2021, tab 6.1.

9 National Documentation Package, Pakistan, 16 April 2021, tab 2.1: Pakistan. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021.

10 National Documentation Package, Pakistan, 16 April 2021, tab 6.1.