Citation: 2021 RLLR 21
Tribunal: Refugee Protection Division
Date of Decision: July 8, 2021
Panel: Megan Kammerer
Counsel for the Claimant(s): Ramneek Sidhu
Country: Hungary
RPD Number: VB9-07875
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000101-000107
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX who also goes by the chosen name of XXXX XXXX as a citizen of Hungary who is claiming refugee protection pursuant to Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.
[2] In assessing these claims, I have considered and applied the Guidelines on Sexual Orientation and Gender Identity and Expression called the SOGIE Guidelines, to ensure that appropriate accommodations were made in questioning the claimant and the overall hearing process and in substantively assessing the claim.
ALLEGATIONS
[3] The claimant alleges that she is transgender and that as a transgender person she is subject to persecution in Hungary.
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 Hungary has been established on a balance of probabilities by her testimony and a copy of her passport.
Credibility
[6] When a claimant swears to the truth of her 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, she testified in a straightforward and convincing manner and answered all of the questions posed to her. She was able to speak in detail about what it is like to live as a transgendered person in Hungary. The discrimination and threats that she faced in Hungary and the risks that she would face if she were to return to Hungary, particularly as she has started the process of transitioning and is currently on hormone replacement therapy.
[7] In addition, the claimant has provided several documents which corroborate her claim. These included a number of medical and XXXX reports authored by professionals in Canada and in Hungary, which confirm that the claimant has identified as transgender since her childhood. And that the claimant is currently being treated with hormone therapy.
[8] A statement of support from a friend that the claimant met online in the XXXX 2018. This friend states that she is aware of the claimant’s quote “dysphoria and her attempt to establish her trans identity back in her country” from their first email exchange. The friend states that the claimant disclosed that quote, “Almost every attempt to present female in her old place of living was met with threats to her life and health often with XXXX malice in the form of verbal attacks.”
[9] The friend indicates that she helped the claimant to obtain information on the asylum process in Canada. A series of emails exchanged between the claimant and her friend which corroborate her allegations and contain a series of references to the claimant transitioning, identifying as female, and the discrimination and harassment she has experienced in Hungary. A series of photographs which captured the claimant’s physical transition. And the claimant also made a witness available to attest her gender identity but given the wealth of detailed evidence available, I did not feel it was necessary to call this witness.
[10] I find the claimant to be credible and I believe what she has alleged in support of her claim.
Nexus
[11] The claimant alleges that she is at risk due to her identity as a transgender individual. I find that the persecution the claimant fears has a Nexus to the Convention ground of a particular social group, namely transgendered individuals. I have thus assessed this claim under Section 96 of the Act.
Well-Founded Fear of Persecution
[12] The claimant testified that she is afraid to return to Hungary as a visibly transgender person. She indicated that if she were to return to Hungary, she would face discrimination in nearly every facet of her life.
[13] Ranging from the ability to seek employment, to the ability to seek medical treatment, to the ability to walk safely down the street. She spoke about being verbally assaulted on the street for her appearance and about death threats her trans friends have received.
[14] The claimant testified that while Hungary has never been particularly accommodating for members of the LGBTI community, but that the atmosphere has deteriorated significantly in recent years to the point where she feels she can no longer live safely in Hungary.
[15] She indicated in the past few years the government has passed laws which are designed to target LGBTI people and transgender people in particular. And that her country now does not recognize her existence.
[16] The claimant also testified about how difficult it was to make the decision to leave her home in Hungary but how she felt she had no other options given the XXXX impact of hiding her true self and the increasingly discriminatory legislation being passed by the government.
[17] The claimant testified about how difficult it was XXXX and emotionally to live in Hungary where transgender issues are quote “repressed” and where she legally does not have the option of transitioning.
[18] She testified about the process of attempting to legally transition in Hungary before legislation was passed in 2020 now making this illegal, and the impact that this process had on her mental state.
[19] The objective country condition evidence corroborates the claimant’s evidence. The International Lesbian Gay Bisexual Trans and Intersex Association of Europe which is cited at Item 6.1 of the National Documentation Package has stated that Hungary has adopted a quote “increasingly hostile atmosphere” towards sexually minorities. Likewise a recent report authored by the Hatter Society, the Hungarian LGBT Alliance and the Transvanilla Transgender Association concludes that quote, “discrimination, harassment, and various forms of violence are part of the everyday experience for a large proportion of LGBTI persons in Hungary. These views are often shared, in some cases even encouraged, by leading politicians.”
[20] A recent report on hate speech also cited at Item 6.1 of the National Documentation Package links the Hungarian government’s policies with the rise in discrimination and intolerance perpetrated against LGBTI persons.
[21] The objective evidence demonstrates that the government has become increasingly homophobic, has targeted LGBTI people with homophobic and discriminatory comments, and has taken a series of escalating measures designed to severely curtail the rights of transgendered people.
[22] In May 2019 for example, as is set out at Item 6.1 of the National Documentation Package, the speaker of the Hungarian parliament stated that there is no moral difference between the adoption of children by same-sex couples and pedophilia.
[23] That same year, an article submitted by the claimant at Exhibit 6 shows that one (1) of the State-run public service channels dedicated a show to conversion therapy spreading the view that homosexuality is a disease and that it is only the gay lobby trying to convince young people that this was not a sickness and incurable.
[24] As is detailed at Item 2.1 of the National Documentation Package, on December 15th 2020 parliament adopted a government submitted amendment introducing additional gender specific language into the constitution declaring that “the basis for family relations is heterosexual marriage” and “the mother is a woman, the father is a man”. It also declared that the country “protects children’s rights to an identity based on their gender at birth” and that children must be guaranteed, “upbringing based on values stemming from Hungary’s constitutional identity and Christian culture”.
[25] Parliament also adopted government submitted legal provisions on adoption allowing only married couples consisting of a woman and a man to adopt children unless the Minister for Family Affairs grants special permission.
[26] On May 19th 2020, Hungary’ s parliament adopted a Bill that included provisions replacing the term gender with gender at birth in the civil registry. And prohibited gender change on all official documents such as identification cards, passports, and driving licenses.
[27] LGBTI Organizations expressed public concern that as a result transgender persons could face harsh workplace and health care discrimination or could be accused of fraud when presenting personal identity documents.
[28] A representative of Amnesty International cited at Item 6.4 of the National Documentation Package has stated that the legislation “pushes Hungary back towards the dark ages and tramples the rights of transgender and intersex people” and will ” deepen an already intolerant and hostile environment faced by the LGBTI community”.
[29] At Item 6.3 of the National Documentation Package, Amnesty International further states that the uncertainty and daily struggles these changes bring in accessing basic services, institutions and opportunities can lead to self-harm, suicide, and other mental health challenges for people who are unable to have their gender identity recognized.
[30] This affects, in particular, those individuals whose appearance, gender expression or gender identity do not match their sex on official documents, since their right to privacy could be violated whenever they are required to prove their identity.
[31] Amnesty International has also pointed out that these provisions not only severely violate the right to privacy but also expose transgendered and intersex people to additional legal, social, and institutional hurdles in violation of their economic, social and cultural rights.
[32] Moreover, according to Amnesty International, these changes are likely to expose transgender and intersex people to discrimination in all spheres of life.
[33] In October 2020, the Prime Minister of Hungary stated that a book that depicted fairy tales with minority Romani LGBTI and characters with disabilities was a quote, “act of provocation”.
[34] The leader of the party tore up a copy of the book in public and a conservative campaign group collected signatures calling for a boycott. And then most recently as is set out in the evidence provided by the claimant in Exhibit 6, in XXXX 2021, Hungarian law-makers approved legislation that prohibits sharing with minors any content that portrayed homosexuality or sex reassignment on the grounds that this will help them fight pedophilia.
[35] Amnesty International has condemned this legislation on the ground that it will further stigmatize LGBTI people and expose them to greater discrimination in what is already a hostile environment.
[36] At Item 2.1 of the National Documentation Package, the United States Department of the State identifies threats of violence by extremists targeting lesbian, gay, bisexual, transgender, and intersex persons as one (1) of the most significant human rights issues in Hungary.
[37] Sources at Item 6.3 of the National Documentation Package also indicate that in Hungary transgender and intersex people are often subject to discrimination with respect to employment, education, accessing goods and services, and housing.
[38] Moreover, they often experience violations of their right to health, both in obtaining treatment related to their gender identity and in obtaining general medical care.
[39] In addition to the legal obstacles, the often outdated approach of certain medical staff can lead to transgender and intersex people avoiding a visit to the doctor altogether.
[40] In light of the evidence outlined above, I must determine whether the claimant faces a serious possibility of mistreatment that would amount to persecution if she returned to Hungary. There is a distinction between discrimination and persecution. Only those individuals who face a serious possibility of persecution are entitled to protection under the Act. Although persecution is not defined in the Act, the relevant case law has identified general hallmarks for criteria of persecution.
[41] In determining the meaning of persecution, I note that the Act must be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. In order to be considered persecution, the mistreatment suffered by a claimant must be serious. In order to determine whether a particular mistreatment would qualify as serious, one must examine what interest of the claimant might be harmed and to what extent the subsistence enjoyment, expression or exercise of that interest might be compromised.
[42] The court has equated a serious compromise of the claimant’ s interest with a “sustained or systemic violation of basic human rights”.
[43] The second criterion of persecution is that the inflicting of harm occurs with repetition or persistence in a systematic way. Each act of mistreatment or discrimination on its own may not reach the level of persecution and I must consider the cumulative impact on the claimant. In this case, the evidence outlined above demonstrates that the government in Hungary continues to target LGBTI persons, including transgender persons by making homophobic and discriminatory comments as well as bypassing a series of increasingly homophobic and regressive laws, designed to promote a hostile atmosphere towards LGBTI persons and to curtail their rights.
[44] This is compounded by persecutory social practices that mean that transgender persons are often notable to access basic services such as education, health care, and housing.
[45] And that they are not able to exercise basic rights, including those outlined in international human rights instruments such as the right to security of the person and the right to privacy.
[46] As such, considering all of the evidence before me, I find that the level of discrimination and mistreatment faced by transgender persons in Hungary amounts to persecution and that the claimant would face such a persecution if she returned to Hungary. I thus find that the claimant would face a serious possibility of persecution in Hungary.
State Protection
[47] The next element in my analysis is whether there is adequate state protection for the claimant in Hungary. While there is a presumption of state protection, this presumption can be rebutted with clear and convincing evidence that protection would not be forthcoming to the claimant.
[48] I note that the State is one (1) of the agents of persecution in this case and in concert with the legislation described above, has taken steps to erode mechanisms through which members of the LGBTI community can seek recourse for discrimination and hate crimes.
[49] Sources indicate at Item 2.1 of the National Documentation Package for example that in December 2020 parliament voted to abolish the equal treatment authority which is viewed by LGBTI groups as the one (1) of the few remaining public bodies that deliver decisions against discrimination based on sexual orientation and gender identity.
[50] Moreover, although law prohibits discrimination based on sexual orientation as well as certain forms of hate speech and prescribes increased punishment per violence against members of the LGBTI community.
[51] NGOs representing the LGBTI community reported at Item 2.1 of the National Documentation Package that police officers continued to resist classifying incidents as hate speech and were unfamiliar with police hate crime protocols.
[52] Sources cited at Item 6.1 of the National Documentation Package described a 2008 case where Molotov cocktail attacks against LGBTI venues were initially investigated by the police as hooliganism rather than hate crimes.
[53] Likewise, sources cited at Item 6.1 of the National Documentation Package indicate that the government does not have a coordinated strategy or action plan to counter discrimination against sexual minorities. I thus find that the presumption of state protection has been rebutted.
Internal Flight Alternative
[54] With respect to an internal flight alternative, I do not find that the claimant can live safely in any part of Hungary. The government has stripped members of LGBTI community of their rights throughout the country. I find that discrimination and persecution against transgender people is prevalent throughout Hungary. I find that the claimant faces a serious possibility of persecution throughout the country. In my view there is no viable internal flight alternative available to the claimant.
CONCLUSION
[55] For these reasons I find that the claimant is a Convention refugee and I accept her claim.
———- REASONS CONCLUDED ———-