Citation: 2021 RLLR 39
Tribunal: Refugee Protection Division
Date of Decision: February 19, 2021
Panel: Heidy Melissa Arango
Counsel for the Claimant(s): Mabel E. Fraser
Country: El Salvador
RPD Number: MB7-23221
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000034-000040
REASONS FOR DECISION
INTRODUCTION
[1] The claimant, XXXX XXXX XXXX XXXX (also known as XXXX), is a citizen of El Salvador. She1 claims refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).2
ALLEGATIONS
[2] The claimant fears to be killed by the members of gangs if she returns to El Salvador.
[3] On XXXX XXXX XXXX 2017, the claimant was kidnaped by members of the Mara Salvatrucha (MS-13). While abducted, she was mistreated and tortured by members of the MS-13. They threatened to kill her unless her mother paid a ransom.
[4] The claimant alleges she was kidnaped because she is a transsexual person and because the gang members knew her mother works for the supreme court of justice.
[5] On XXXX XXXX XXXX 2017, the claimant left El Salvador and she entered Canada with a visitor’s visa.
[6] She claimed refugee status around November 21, 2017.
[7] Being a transgender, transsexual person, the claimant fears to be persecuted due to her gender identity should she return to El Salvador.
DETERMINATION
[8] The tribunal finds that the claimant is a Convention refugee for the following reasons.
ANALYSIS
[9] In assessing this claim, the tribunal considered the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.3
Identity
[10] The tribunal is satisfied with the identity of the claimant, which was established by a copy of her passport on file.4
[11] The tribunal notes that claimant chose to identify herself as a man when filling her Basis of Claim Form (BOC)5. The tribunal suspects that this was to keep in conformity with her passport. Nevertheless, the claimant provided documents from medical professionals regarding her medical transition from male to female. The tribunal is satisfied that the claimant is indeed transgender, transsexual.
Credibility
[12] The tribunal considers the claimant’s allegations in her BOC to be credible. The tribunal considered all the documentary evidence on file and found no significant contradictions or inconsistencies that would undermine the claimant’s credibility.
[13] As to the claimant’s gender identity, the claimant provided numerous documents to corroborate her claim. These include documents from medical professionals indicating that she is transgender.6
[14] In support of her claim, the claimant provided a letter from her psychiatrist indicating that she initiated hormonal therapy.7 The psychiatrist confirms that, after evaluating the claimant, he determined that she was a person with a transsexual gender identity.8
[15] The claimant also submitted a letter from her XXXX that indicates that during 20 sessions of XXXX with the claimant, which began on XXXX XXXX XXXX 2018, she has observed XXXX XXXX XXXX XXXX associated with XXXX XXXX and the traumatic events experienced by the claimant in her country of origin.9
[16] The claimant submitted a letter from her family physician who confirms that he has assisted her to medically transition from male to female.10
[17] Additionally, the claimant provided a police report that confirms that she was kidnapped by gang members on XXXX XXXX XXXX 2017.11
[18] The claimant provided a photo of herself to corroborate her transition from male to female.12
[19] All this is consistent with the claimant’s allegations as stated in her BOC. In light of the documentary evidence submitted, there is no doubt that the claimant is a transsexual person.
[20] Therefore, the tribunal finds the main allegations at the heart of this claim to be credible.
[21] Moreover, the objective documentation supports the claimant’s allegations that individuals in her circumstances face persecution due to their gender identity.
[22] The claimant also submitted different news articles regarding the situation of sexual minorities and violence against LGBT persons in El Salvador.13
[23] According to the most recent US Department of State Country Reports14, there is widespread discrimination and violence against lesbian, gay, bisexual, and transgender persons, even though the law prohibits discrimination on the basis of sexual orientation.
[24] According to Amnesty International, LGBTI persons in the Northern Triangle of Central America “are frequently the target of different forms of violence due to their real or perceived sexual orientation and/or gender identity, such as, for example, intimidation, threats, physical aggression, sexual violence and even murder”.15
[25] Another report by Amnesty International indicates that trans women, who are particularly stigmatized because of patriarchal social norms, are especially subjected to violence and extortion by gangs and often face greater obstacles to accessing justice due to discrimination.16 Furthermore, since the eruption of the COVID-19 pandemic in March 2020, the situation has definitely deteriorated and the measures taken by the government have put many trans women in an extremely vulnerable position.17
[26] After considering the documentary evidence submitted, the tribunal concludes the claimant has established a reasonable fear of persecution if she returns to El Salvador.
State Protection
[27] The tribunal finds that adequate state protection would not be available to the claimant in El Salvador.
[28] The objective documentary evidence indicates that the authorities also engage in violence and discrimination against LGBTI people18:
NGOs reported that public officials, including police, engaged in violence and discrimination against sexual minorities. Persons from the LGBTI community stated that the PNC and the Attorney General’s Office harassed transgender and gay individuals when they reported cases of violence against LGBTI persons, including by conducting unnecessary and invasive strip searches.
[29] Furthermore, impunity persisted despite government steps to dismiss and prosecute abusers in the security forces, executive branch, and justice system.19
[30] In fact, many LGBTI people prefer not to report to the authorities the attacks they suffer and the few people who dare go to the authorities to report a crime “are frequently re-victimized or treated with disdain, indifference and discrimination due to their gender identity and/or expression, and so they rarely follow their case up and even, sometimes, withdraw it”.20
[31] The tribunal notes that the claimant did seek protection from the authorities in XXXX 2017, after she was kidnaped, but there was no further action from the authorities.
[32] Based on the claimant’s personal circumstances, specifically a transgender person, as well as the objective country documentation, the tribunal finds that the claimant has rebutted the presumption of state protection.
Internal Flight Alternative (IFA)
[33] The tribunal also considered whether the claimant could reasonably and safely relocate to another city in El Salvador. The tribunal is of the opinion that the claimant does not have a viable IFA in El Salvador.
[34] It appears from the objective documentary evidence mentioned above that the situation of sexual minorities in El Salvador is the same throughout the country.
[35] Given the claimant’s profile, a transsexual person who has transitioned from male to female, and also considering that gangs are present all over the country, the tribunal concludes that the claimant faces a reasonable possibility of persecution throughout El Salvador.
[36] Therefore, there is no viable IFA in the claimant’s particular circumstances.
CONCLUSION
[37] For these reasons, the tribunal finds that XXXX XXXX XXXX XXXX (also known as XXXX) is a “Convention refugee” pursuant to section 96 of the IRPA.
[38] Therefore, the tribunal accepts her claim.
(signed) Heidy Melissa Arango
19 February 2021
1 The claimant is identified as male in her passport but self-identifies as female according to her allegations. The feminine has been used in this decision.
2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
3 Chairperson’s Guideline 9 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017
4 Document 1 — Package of information from the referring Canada Border Services Agency (CBSA)/Immigration, Refugees and Citizenship Canada (IRCC): Copy of the claimant’s passport.
5 Document 2 – Basis of Claim Form (BOC)
6 Document 4 – Exhibits P- 10 to P-15
7 Document 4 – Exhibit P-10: Letter from XXXX XXXX XXXX XXXX XXXX, dated XXXX XXXX, 2017.
8 Ibid.
9 Document 4 – Exhibit P-12: Letter from XXXX XXXX XXXX, dated XXXX, 2019.
10 Document 4 – Exhibit P-15: Letter from family physician. XXXX XXXX XXXX XXXX.
11 Document 4 – Exhibit P-9: Report to the Office of the Attorney General of the Republic, dated XXXX XXXX 2017.
12 Document 4 – Exhibit P-22: Photo of the claimant.
13 Document 4 – Exhibit P-16 to P-18
14 Document 3 – National Documentation Package on El Salvador, November 30, 2020 (NDP El Salvador), Tab 2.1: El Salvador. Country Reports on Human Rights Practices for 2019, United States Department of State, March 11, 2020.
15 Document 3 – NDP El Salvador, Tab 6.1: ‘No Safe Place’: Salvadorans, Guatemalans and Hondurans Seeking Asylum in Mexico Based on Their Sexual Orientation and/or Gender Identity, Amnesty International, November 27, 2017.
16 Document 3 – NDP El Salvador, Tab 6.4: For many trans women, living in El Salvador is a death sentence.
Coronavirus is making it even worse, Amnesty International, 6 November 2020.
17 Ibid.
18 Supra, note 14.
19 Ibid.
20 Supra, note 15.