2023 RLLR 75

Citation: 2023 RLLR 75
Tribunal: Refugee Protection Division
Date of Decision: September 22, 2023
Panel: Peter Okakpu
Counsel for the Claimant(s): Brianne Cameron
Country: Cuba
RPD Number: TC3-04787
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: Reasons for decision.

INTRODUCTION

[2]       These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX, the claimant. The claimant alleges that she is a citizen of Cuba and claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

ALLEGATIONS

[3]       The details of the claimant’s allegations are set out in her Basis of Claim form and attached narrative as seen in Exhibit 2. In summary, the claimant fears persecution of the Cuban society in general due to her sexual identity.

DETERMINATION

[4]       The Panel finds that the claimant has established on a balance of probabilities that she faces a serious possibility of persecution because she is a member of a particular social group, being a trans woman, if she were to return to Cuba. Therefore, the Panel finds that the claimant is a Convention refugee under section 96 of the IRPA.

ANALYSIS

[5]       In making this assessment, the Panel considered all the evidence, including the oral testimony, documentary evidence entered as exhibits. The Panel also considered the Chairperson’s Guideline 9, which is proceedings before the IRB involving sexual orientation, gender identity and expression and sex characteristics.

Nexus

[6]       The Panel finds that the claimant fears a nexus to the Convention ground of membership in a particular social group as a trans woman.

Identity

[7]       The Panel finds that the identity of the claimant is established on a balance of probabilities through the certified true copy of her Cuban passport on file as seen in Exhibit 1.

Credibility

[8]       Pursuant to the Maldonado principle, it is presumed that sworn testimony is true unless there are sufficient reason to doubt its trustworthiness. The claimant testified in a detailed, spontaneous, and straightforward manner with regard to the central elements of her claim. There were not inconsistencies or omissions which went to the core of her claim. Therefore, the Panel finds that the claimant was a credible witness. The claimant testified about how she had experienced discrimination and harassment due to her sexual identity in schools, coffee shops, and restaurants. The claimant testified credibly of the discrimination she suffered at a young age of 13 years old while still in high school at the hands of her fellow students and a teacher. The claimant further testified of how she was mistreated during her compulsory military service. She testified of how she was made to stand and scream, “Yes, sir.” for an hour so that her feminine voice would change to a masculine one (1). When asked what role she played during her one (1) year service in the military, the claimant stated that she XXXX XXXX XXXX XXXX. The Panel acknowledges that military service is compulsory in Cuba. See Exhibit 3. Given that the claimant’s duty is clearcut in nature, the Panel finds, on a balance of probabilities, that it does not raise concerns.

[9]       The claimant also testified that when, in XXXX 2015, she started wearing clothes and makeup to express herself in XXXX XXXX XXXX, she was invited to the dean’s office and was asked to either dress like a man and continue her studies or leave. The claimant testified that she chose to leave her studies and stick to being herself. She also testified that Cuban medical doctors refused to perform surgical operations necessary to facilitate her transition, despite all her efforts. Further, the claimant testified of how a contract she had concluded for opening a XXXX in a newly opened XXXX in Cuba fell through because the XXXX manager discovered that she is a transwoman (inaudible). The claimant explained that the contract was given to another man who is strict. The claimant stated that she lost time and money owing to this discrimination. The claimant testified that she had been in several relationships with men. She mentioned her three (3) years relationship with XXXX (ph), at the most recent. The Panel noted that this was omitted in her narrative. When asked why she omitted  it, the claimant responded that she thought that as a transwoman, a relationship with other men were not relevant. In her submission, the claimant’s Counsel echoed what the claimant said and added that the issue facing the Panel is the claimant’s identity. The Panel has assessed the claimant’s testimony on this and the Counsel’s submission and finds, on a balance of probabilities, that this omission is not material because it does not water down the claimant’s allegation of suffering discrimination as a result of her sexual identity.

[10]     The claimant also submitted documents in support of her claim. The Panel finds the documents in Exhibit 5 to be probative value in establishing, on a balance of probabilities, the credibility of the claimant’s allegations that she suffered persecution at the hands of the Cuban society due to her sexual identity. The documents are detailed. As such, the Panel attaches heavy weight to them. The documents are affidavit of support from claimant’s sister, XXXX XXXX XXXX (ph), affidavit of support from the claimant’s best friend, XXXX XXXX XXXX (ph), letter of support from the claimant’s family friend, XXXX XXXX XXXX (ph), and various social media posts made by the claimant showing her sexual (inaudible) and friends.

[11]     The Panel raised concern about the claimant’s failure to claim asylum in the US after almost two (2) months there. When asked why she did not claim asylum in the US, the claimant responded that her aim has always been to get to Canada to make an asylum claim. She also explained that her family is here in Canada, and she wanted to reunite with them. The Panel has assessed the claimant’s explanation and finds that it is reasonable because one (1) would expect a person fleeing from such level of discrimination as the claimant faced to want to get support from her family. Further, the Panel accepts that there is no sufficient evidence that would warrant a negative credibility inference from the claimant’s failure to initiate an asylum claim in the US. The Panel therefore refrains from making any negative inference therefrom. Overall, the Panel finds the claimant’s testimony to be consistent and devoid of inconsistencies. The Panel also found the aforementioned documents to have probative value. The Panel finds the claimant’s explanation for her failure to claim asylum in the United States to be reasonable. Given these findings, the Panel accepts the central tenets of the claimant’s claims as outlined above. On account of these findings of fact, the Panel finds that the claimant established, on a balance of probabilities, her subjective fear of harm from the Cuban society because of her sexual identity.

Objective Basis

[12]     The evidence in the National Documentation Package for Cuba in Exhibit 3 demonstrates that there is objective basis for the claimant’s subjective fear of persecution at the hands of the Cuban society because of her sexual identity. Item 2.1 of Exhibit 3, which was also provided by the claimant in Exhibit 5, describes the widespread discrimination, harassment, and violence against actual and perceived members of the LGBTQ+ community in Cuba. Further, the only legal permitted advocacy group for LGBT community in Cuba is headed by a member of the Castro family and the Cuban regime, which controls the narratives being openly discussed and does not allow for free expression of opinions of the LGBTQ+ community. Item 2.1 of Exhibit 3 at page 3 further states that authorities ignored applications for legal recognition from new groups, including several new religious groups, human rights organizations, and lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQ+) rights organizations. The lack of official recognition left group members open to potential charges of illegal association. NGOs reported LGBTQ+ persons continue to face social stigma and discrimination in education, health care, and employment, with employment opportunities for transgender persons generally limited to low paid and sometimes dangerous occupations. See Exhibit 3 at Item 2.1 at page 35.

[13]     Discrimination in employment occurred against members of the Afro-Cuban and LGBTQ+ populations, especially in the state owned or privately operated XXXX sector. The claimant testimony that she identifies as a transwoman puts her in the LGBTQ+ community and thus exposes her to the scenarios described above. Based on the claimant’s testimony and the objective evidence which supports the claimant’s allegation, the Panel finds that the claimant’s subjective fear is objectively well-founded.

State Protection

[14]     States are presumed to be capable of protecting all citizens except in situations where the state is in complete breakdown. To rebut this presumption, the onus is on the claimant to establish on a balance of probabilities through clear and convincing evidence that the state’s protection is inadequate. Item 2.1 of Exhibit 3 reports that although the law prohibits discrimination based on sexual orientation in employment, housing, citizenship, education, and health care, but does not extend the same protections to transgender or intersex individuals based on gender identity and expression or sex characteristics. The government generally did not enforce law effectively. The same source further states that Brenda Diaz, a transgender woman, was convicted of “public disorder and sabotage”, and sentenced to 40 years in prison for participating in an anti-government protest in August. Authorities reportedly placed Diaz in a prison facility that did not align with her gender identity, prompting calls for justice from local LGBTQ+ activists.

[15]     In view of the above clear and convincing objective evidence, the Panel finds on a balance of probabilities that since diverse sexual identity is not fully expressed in Cuba, the Cuban state is an agent of persecution, and the claimant cannot be expected to seek protection from the very entity that prosecutes her. The objective documentation constitutes clear and convincing evidence that the state is unwilling to provide adequate state protection to the claimant. Accordingly, the Panel finds that there is no state protection available to the claimant.

Internal Flight Alternative

[16]     The Panel has examined whether a viable internal flight alternative exists for the claimant. Item 2.1 of Exhibit 3 shows that Cuba has control over all its territories via its security services, intelligence services, police, and military and other measures of social control. The claimant cannot, thus, internally locate to Cuba without facing the same serious possibility of persecution on the basis of her sexual identity. Based on the evidence on file, the Panel finds that the claimant faces a serious possibility of persecution throughout Cuba, given that the authorities and Cuban society operate similarly throughout the country. The Panel finds that there are no other parts of the country where the claimant would not face a serious possibility of persecution. The Panel therefore finds that there is no viable alternative available to the claimants.

CONCLUSION

[17]     After careful consideration of all of the evidence, including the claimant’s testimony, the Panel finds that the claimant is a Convention refugee pursuant to section 96 of the IRPA. The claim is therefore accepted.

——— REASONS CONCLUDED ———