2022 RLLR 63

Citation: 2022 RLLR 63
Tribunal: Refugee Protection Division
Date of Decision: July 22, 2022
Panel: Brittany Silvestri
Counsel for the Claimant(s): M. Mary Akhbar
Country: Brazil
RPD Number: TC2-03806
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision on the claim for refugee protection of XXXX XXXX XXXX, RPD file number TC2-03806.

[2]       I find that you’ve satisfied the burden of establishing the serious possibility of persecution on a Convention ground.

[3]       Your allegations are found in your Basis of Claim narrative and its amendment.

[4]       In short, you fear returning to Brazil as a gay man who is XXXX XXXX. You fear for your safety due to violence against you on account of your sexual orientation.

[5]       The determinative issues in this case are credibility and subjective fear.

[6]       I find that your identity as a national of Brazil is established by your testimony and supporting documentation filed. Including two (2) passports, a police report in support of your lost passport, a national ID card, your birth certificate, and your voting card.

[7]       Furthermore, after a review of your personal disclosure, which included 14 letters of support from your friends and family in both Brazil and Canada, including the witness request for your current Canadian boyfriend, and photos of you living your life, combined with your Tinder profile, I find that you are a gay man.

[8]       I also accept that you’re XXXX XXXX, and you have had mental health challenges. You provided medical evidence, you submitted a collection of letters from doctors, as well as clinical records and lab results. These are relevant, probative, and given full weight to support the existence of both medical conditions.

[9]       I found your testimony credible, and consistent with the known country documentation.

[10]     To establish a person’s status as a Convention refugee, or a person in need of protection, one (1) must show that there was a serious possibility that they would be persecuted, or that they would be subjected, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment, or a danger of torture if removed to Brazil.

[11]     Although you were able to have relationships with men in Brazil, your mannerisms resulted in assaults and violence at the hands of your family members and the community more widely. You were excluded for most of your child and teen years. Bullied and punished for failing to meet society’s expectations of manliness. A fear of violence is something you dealt with regularly in Brazil as a gay man. This was on a constant basis.

[12]     You’ve been assaulted by strangers in public, you never reported your treatment to school or police out of fear for your safety. In Brazil, you were concerned about how to dress or how to behave on the street because you were worried about violence. You were unable to find a job because you were not masculine enough to be hired. You have been verbally attacked on public transit. You hid in your house after this event for a whole month.

[13]     You’ve had to run away from aggressors on multiple occasions. Fearing the political climate, and seeing support from the new government from your friends and family members, you worked on a way to leave Brazil.

[14]     In your oral evidence, you noted differences regarding your life as a gay man in Canada. While in Brazil, you were afraid to be involved in the LGBTQ+ Pride parades, because it was dangerous. By comparison, you and your current partner have a life in Toronto. You spoke about how you enjoyed the Pride parade in Toronto, where it felt safe and accepting. Your closing comments were that you really wanted the opportunity to live here. And to live your life, be yourself openly, not fake who you are. You wanted the opportunity to be accepted and not judged. And hear that you do not need to be afraid of that, and you’re safe. You just wanted to live your life and be who you are.

[15]     I find, taking into consideration the Chairperson’s Guideline 9, that the evidence presented in support of the allegations has established more than a mere possibility of persecution. As per paragraph 8.5.1, therein it is “well established in law that being compelled to conceal one’s SOGIESC identity constitutes a serious interference with fundamental human rights and that may, therefore, amount to persecution…a claimant cannot be expected to conceal their identity as a way to avoid persecution in their country of reference.”

[16]     In Canada, you learned you were XXXX XXXX in XXXX 2020. In XXXX 2020, you broke up with your boyfriend; you were relieved that he was XXXX XXXX. You are concerned about returning to Brazil given the increased violence following the election of the homophobic president. Your friend in Brazil was almost murdered in XXXX 2020 because he was gay. He has been unable to leave Brazil as his recovery is long. I’ll note the attack was savage. You provided newspaper articles detailing the attack. I’ll also note, at this point, you do have another friend who passed away from XXXX complications. He was unable to afford and secure XXXX XXXX. That was in XXXX 2021. You have told me that you feel you don’t have any support in Brazil, and you feel you could not secure XXXX XXXX there.

[17]     It was against this backdrop, and the government rhetoric regarding COVID-19 and XXXX, that you decided to seek out refugee protection. You did not realize that there was legal support. You were afraid that losing your claim would mean losing everything. You were also afraid to tell your father the truth about your situation.

[18]     The timing of your XXXX XXXX test in 2020, combined with the expiry of your work visa in 2020 during COVID-19, lying to your father that you had a work permit, and the fear of speaking with your father about XXXX, resulted in your mental health suffering. The delay ensued. You are now receiving mental health treatment and you feel supported. I do not draw a negative inference from your delay in claiming, considering all of the circumstances.

[19]     On the matter of country conditions, I rely on your country conditions documents, as well as NDP Items 2.1, 2.3, 6.2, 6.3, and 6.4. There is considerable documentary evidence regarding the treatment of LGBTQ persons in Brazil. This evidence includes the US Department of State report which refers to violence against LGBT individuals being a serious concern. The report from human Rights Watch indicates hundreds of complaints of violence, discrimination, and other abuses against the LGBTQ people. It’s received by the National Human Rights Ombudsman’s Office in the first half of 2017. And other documents, while being somewhat dated, two (2), three (3), and four (4) years old, they indicate long-standing concerns about murders of hundreds of LGBTQ persons in Brazil each and every year.

[20]     You quote the death rate to be approximately one (1) person a day. Country conditions reports commonly underestimate the true numbers, as police are not inclined to identify murders targeting LGBTQ individuals as anything other than garden variety homicides. Which, in themselves, remain exceedingly high in number in Brazil. The country conditions documents established that there are patterns. These are patterns of violence and, sadly, includes what appears to be growing violence and homicide rates for members of the LGBTQ community in Brazil.

[21]     I acknowledge that Brazil in some ways presents a study in contrast. In 2019, over 3 million attendees celebrated the June 2019 Sao Paulo Pride parade. In 2019, the Brazilian Supreme Court criminalized homophobia. While Salvador appears to be the capital of hate crimes against LGBTQ+ people, I find there is no evidence that Sao Paulo is much safer.

[22]     Now, the President has consistently voiced his own viewpoint, as a self-confessed, proud homophobe. In the country conditions, both in the New York Times and Guardian articles, they state that violent deaths of LGBTQ people in Brazil is hitting an all-time high. I’ll note that Out magazine states that gay travel websites warn LGBTQ tourists to steer clear of Brazil. The Minister of Education shut down a section of the ministry devoted to diversity and human rights. He has come out against the discussion of gender theory, which studies gender identities in the classroom.

[23]     I’ll quote directly from an article provided by Counsel: “Virtually all survey respondents – over 98 percent – believe that hate speech promoted by politicians and candidates against LGBTQ rights contributes to increased violence on social networks.” There is considerable anecdotal evidence about how many police, prosecutors, and judicial authorities are biased against the LGBTQ community. There is even less support provided to the LGBTQ community to defend themselves from online attacks.

[24]     The low level of official reporting by LGBTQ people is often a result of the prejudices they face from policing in the criminal justice system. While no specific law prohibits discrimination against LGBTQ persons in essential good and services, such as health care. In 2019, however, the STF criminalized discrimination based on sexual orientation and gender identity. Offenders face sentences of one (1) to three (3) years’ imprisonment, and a fine. Or two (2) to five (5) years’ imprisonment and a fine if the offender disseminates the incident via social media, thereby exposing the victims. All that to say, intolerance persists.

[25]     The National Human Rights Ombudsman’s Office reported to Human Rights Watch that between January and June 2020, it received 1,134 complaints of violence, discrimination, and other abuses against LGBTQ people. Data from the government’s hotline to report abuses reveals that between 2011 and 2017, there were 12,477 complaints violence against LGBTQ people in Brazil. Hate crimes in Sao Paolo, Brazil’s largest city, peaked in the months leading up to October’s presidential election. The city registered an average of 16 hate crime cases a day in August, September, and October 2019. That was more than triple the daily average for the first half of the year. According to a tally of police reports, using freedom of information requests, homophobic crimes, in particular, rose 75% during those months.

[26]     Even bearing in mind that the local metropolitan Sao Paulo population is approximately 21 million people, with a country of 207 million people, one (1) may well understand that the frequency of reports of such death would be of grave personal concern to you.

[27]     I find that your subjective fear has an objective basis. And accordingly, your fear of persecution on the basis of your membership in a particular social group, namely, gay men, is well founded.

[28]     Given the involvement of senior government officials, including the current president, in promulgating       anti-gay rhetoric, and the evidence pointing to limited police effectiveness regarding homophobic crimes, I find that you’ve rebutted the presumption of state protection in this specific case.

[29]     Also, there is no safe internal flight alternative available to you in all the circumstances.

[30]     For the above reasons, I conclude that you have a well-founded fear of persecution in Brazil, on the ground of your sexual orientation and, specifically, because of your distinct and personal circumstances, you would be unable to live openly as a gay man.

[31]     Therefore, I determine you are a Convention refugee under section 96 of the Immigration and Refugee Protection Act.

[32]     Accordingly, I accept your claim.

——— REASONS CONCLUDED ———