Citation: 2021 RLLR 15
Tribunal: Refugee Protection Division
Date of Decision: November 30, 2021
Panel: Janko Predovic
Counsel for the Claimant(s): Aiden Connor Campbell
Country: Chile
RPD Number: VC1-01606
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000056-000060
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada in the claim of XXXX XXXX XXXX XXXX a citizen of Chile who is seeking refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[2] In rendering my decision in this case I have considered and applied the Chairperson’s guideline on proceedings before the IRB involving sexual orientation and gender identity and expression.
Allegations:
[3] The claimant fears persecution in Chile because of their gender identity as a gender fluid non-binary queer person, as the claimant self-described today, and, of course, also their sexual orientation toward men. The claimant does not identify as a woman, but has a very feminine gender presentation.
[4] Details of the claimant’s allegations can be found in the Basis of Claim Form and attached Narrative at Exhibit Number 2.
[5] In brief, the claimant has in Chile been harassed, attacked, verbally abused, and threatened in school and in public because of their appearance, mannerisms, and expressed gender and sexual identity. They studies make-up artistry and operated a business doing make-up for select clients.
[6] They came to Canada and since then they have been involved in the LGBT community, and they have been open respecting their gender identity and expression.
[7] They fear that if they return to Chile in order to be safe they would have to, once again, return to a partial or complete concealment of their genuine gender identity and sexual orientation because Chilean society is generally hostile to the queer community, and police and the State do not effectively protect that community.
Determination:
[8] The claimant is a Convention refugee.
ANALYSIS:
Identity:
[9] The claimant’s personal identity and status as a citizen of Chile has been established by their testimony and their Chilean passport located at Exhibit Number 1. I am satisfied, on a balance of probabilities, that the claimant is a citizen of Chile only.
Nexus:
[10] The claim … the protection claim bears a nexus to the Convention, namely, membership in a particular social groups of gender fluid persons and persons with diverse sexual orientations. In this case, the claimant self-identified as gay or homosexual, and therefore I will assess the claim under Section 96.
Credibility:
[11] I find that the claimant is credible respecting their gender identity which is the crux of this case. I did not have to hear very much of the claimant’s testimony today because the documentary evidence before is quite strong insofar it supports the claimant’s identity in that respect.
[12] There are ample support letters from … from friends, family, and members of the LGBT community in Canada attesting to the claimant’s identity and their sexual orientation toward men.
[13] There are ample photographs of the claimant’s involvement in social activities within the LGBT community in Chile and in Canada. There are ample photographs corroborating the claimant’s personal interest in the beauty industry, specifically make-up artistry, which the claimant has stated in their narrative is an important aspect of their gender identity and expression.
[14] To state the obvious, the claimant presents, in person, with very long hair and a feminine appearance. Many of the photographs of the claimant in Chile depict them in public with short hair, little or no make-up, and what I would consider a limited or muted expression of their asserted gender identity.
[15] Whereas, the photos of the claimant in Canada, where the claimant has indicated they feels safe and able to safely express their identity, show the claimant with very long hair and a much more feminine appearance, such as has been presented before the panel today.
[16] I do not see this as any kind of inconsistency. Rather, I find the claimant’s long hair and more feminine appearance now suggests that since arriving in Canada the claimant has been able to freely express and appear as they want.
[17] The length of the hair suggests that the choice to appear too feminine has remained consistent since the claimant’s arrival in Canada, and lends credence to the overall narrative that the claimant has been forced to conceal their true gender identity and their preferred expression in the past while living in Chile.
[18] I draw no negative credibility inferences from the claimant’s failure to claim protection in Europe or the USA before coming to Canada. The evidence in favour of the claimant’s sorted gender identity overwhelms any negative credibility inference that may be drawn from a failure to claim protection elsewhere before coming to Canada.
[19] In summary, I accept that the claimant is a gender fluid person, that he’s attracted to men, that they are attracted to men, and I find that the claimant has a subjective fear of returning to Chile on that account.
Objective Basis:
[20] The objective evidence supports the claimant’s subjective fears of returning to Chile.
[21] The NDP found at Exhibit 3 indicates that violence and discrimination against the LGBTQ community continues to be prevalent throughout the country.
[22] For example, the US Department of State report Item 2.1 of the NDP lists violence against lesbian, gay, bisexual, transgender, and intersex persons as a significant human rights issue in the country. It indicates that incidents of violence have increased 58 percent from 2018 to 2019, and the report also describes incidents of abuse perpetrated by the police in Chile.
[23] Further, the report indicates that although there are laws prohibiting discrimination based on sexual orientation, police appear reluctant to use the full recourse of the anti-discrimination laws. And a survey found that a majority of LGBTQ … LGBTQ persons experienced discrimination in public services, especially with respect to police services, education, and healthcare.
[24] This is also reflected in a 2018 UN report at Item 2.6 of the NDP. That report expresses concerns specifically about the reports of violence perpetrated by State agents against lesbian, bisexual, and transgender women.
[25] Further, the report indicates that there is persistent discrimination against LGBTQ persons, particularly in the areas of employment, education, and health services.
[26] There’s another report by Freedom House at Item 2.4, and that indicates that while the government in Chile is taking some steps to pass anti-discrimination laws, LGBTQ persons continue to face severe and significant social bias.
[27] The claimant has also provided country condition documents to support their claim. Those are found at Exhibit Number 4.
[28] There are numerous news articles documenting recent violence, including murders against the LGBT community in Chile. Those news articles also refer to violent crimes perpetrated by the police. And there’s another article referencing arise in anti-LGBT violence in recent years. And all of this supplements and aligns with the evidence in the NDP.
[29] Of course, the claimant’s own experiences as documented in their narrative of harassment and abuse in Chile reflect the objective evidence that I’ve noted above.
[30] Base on the totality of this evidence I find that the claimant has established an objective basis for their subjective fear of persecution in Chile based on their membership in the particular social groups of gender fluid queer persons and persons of diverse sexual orientations.
State Protection:
[31] With respect to violence and discrimination against the LGBT community, the objective evidence supports my finding that there is no operationally effective State protection available to the claimant in their particular circumstances.
[32] In fact, as I’ve noted the police are often the perpetrators of violence against the LGBTQ community, and the situation has not been shown to approving. In fact, it’s been indicated to have been worsening in recent years. And so I find that the claimant has rebutted the presumption of State protection in this case.
Internal Flight Alternative:
[33] I’ve considered whether there’s an IFA available to the claimant in Chile. The evidence supports that there’s a serious possibility of persecution for the claimant throughout the whole of the country.
[34] There’s evidence of a deep rooted prejudice … prejudice against the LGBT community in Chile, and the significant violence against the community in Chile supports that finding.
[35] There’s no good evidence before me to support a finding that the situation for gender diverse individuals might be more palatable in any other part of the country, other than where the claimant is from.
[36] And based on the totality of the evidence I conclude there is no viable IFA in this case. The claimant would … would face a separate of persecution throughout the whole of the country.
CONCLUSION:
[37] For the reasons above I determine that the claimant is a Convention refugee under Section 96 of the Act, and therefore I accepted the claim before the panel today.
[38] So, congratulations to the claimant.
———- REASONS CONCLUDED ———-