2023 RLLR 84
Citation: 2023 RLLR 84
Tribunal: Refugee Protection Division
Date of Decision: March 30, 2023
Panel: Alannah Hatch
Counsel for the Claimant(s): Nicholas Woodward
Country: Egypt, Kuwait
RPD Number: VC2-08832
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: So this is the decision of the Refugee Protection Division in the claim of XXXX XXXX, a citizen of Egypt but who was born in, and has lived her entire life, in Kuwait. So there are, therefore, two (2) countries of reference in this claim. She is claiming refugee protection pursuant to section 96 and section 97(1) of the Immigration and Refugee Protection Act.
[2] And for the purposes of clarification, the claimant’s immigration documents and identity documents are in the name she was given at birth which is XXXX XXXX XXXX XXXX XXXX. But the claimant no longer uses that name.
ALLEGATIONS
[3] The claimant’s allegations are fully set out in the Basis of Claim form and detailed narrative. In summary, the claimant fears she will be — she will face discrimination, harassment, threats, violence and possibly death from members of society, generally, and the police, in both Kuwait and Egypt, because she is a transwoman. The claimant also fears that her family, who do not currently know that she is a transwoman, may force her to undergo some sort of, “Treatment or ritual,” in order to, in her words, “Fix her.”
DETERMINATION
[4] I find that the claimant is a Convention refugee pursuant to Section 96 of the IRPA as she has a well-founded fear of persecution for a Convention ground, namely, for membership in a particular social group as she is a transwoman. And in arriving and — at this determination, I have considered and applied the Chairperson’s Guidelines pertaining to sexual orientation, gender identity and expression and sex characteristics.
Identity
[5] The claimant’s identity as a citizen of Egypt is established by the passport in Exhibit 1. And the passport shows that she was born in Kuwait and she has provided her birth certificate at Exhibit 6. The passport contains multiple residency permits for Kuwait. And I note from her Basis of Claim form that her parents and brother currently live in Kuwait. The claimant’s evidence is that she has never lived in Egypt. I accept on a balance the probabilities, the claimant has the rights and responsibilities of a permanent resident in Kuwait and, therefore, Kuwait is rightfully a country of reference in this claim. And I see no issue of exclusion, pursuant to article 1FE (sic) — 1E. I note the Minister was notified about the potential of a 1E exclusion and, by letter, which is Exhibit 5, states that they did not believe 1E was an issue in this claim.
Nexus
[6] I find that there is a nexus between the claimant’s allegations and the Convention ground of membership in a particular social group, namely transwomen, in Egypt and Kuwait. And I have, therefore, considered this claim under section 96 of IRPA.
Credibility
[7] The Federal Court has held in Maldonado, that when a claimant swears to the truth of certain allegations, it creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness. In this case, I have no reason to doubt the truthfulness of the claimant. The claimant provided a detailed narrative and extensive evidence to support her allegations that she is a transwoman. The evidence included multiple letters from friends in Canada, some of whom have known the claimant for years, and who met the claimant before she identified as a transgender woman. And she provided the letter from her boyfriend, XXXX, who has known her for approximately five (5) years and has been her partner for one (1) and a half years. She provided photographs of herself with her friends over the years, which show her both pre and post-transition. And I find the evidence provided to be credible as it supports her allegations that she identifies as a woman. She also provided a letter from a doctor who indicates she was diagnosed with XXXX XXXX and has been receiving XXXX XXXX XXXX XXXX since XXXX 2020, as well as a letter from her XXXX.
[8] I need not repeat the claimant’s Basis of Claim narrative in this decision and I found the narrative to be detailed and compelling. She explains how she was constantly teased, as a child growing up in Kuwait, for being a feminine boy and how family members approached her mother with their concerns that she might be gay. And that her mother told her she had to, “Shut down these concerns.” Her mother took her to weekly meetings, at one (1) point, for several months to, “Fix her aura.” The claimant writes that he — that she felt that she had two (2) choices in Kuwait at the time, either never act on her attraction to men and live a solitary hidden life, or to be herself and suffer severe harassment and abuse and be told she will, “Burn in hell.” The claimant states that she was XXXX throughout middle and high school and decided to come to Canada to study in 2017. In Canada, she has met a supportive group of friends who accept her and love her as she is. And she states that being in Canada has been, “Very liberating,” for her and she feels that for the first time she has a community that she can call her own.
[9] In her narrative, she describes her medical decision to XXXX XXXX such as XXXX, why she did that and how her, “Body finally felt like a part of her rather than a detached vehicle that she lives in.” She also describes changing her name to XXXX and her use of personal pronouns, she and her. I find that the claimant has established, on a balance of probabilities, that she is a transwoman.
Well-Founded Fear of Persecution
[10] I find that the claimant’s subjective fear is objectively well-founded. I will consider Kuwait first. Item 2.1 of the NDP is the United States Department of State report, which indicates, “Police incited, perpetrated, condoned and tolerated violence against LGBTQI+ persons.” Transgender persons reported cases of repeated harassment, detention, abuse and rape by police who blackmailed and raped them without fear of reprisal. Consensual same sex sexual conduct between men is illegal. The law criminalizes consensual same sex sexual activity between men, older than age 21, with imprisonment of up to seven (7) years. And these penalties are enforced. The 2.1 item describes one (1) instance of a transgender woman, in October 2021, being sent to prison for two (2) years for the crime of, “Imitating the opposite sex,” in her online activities and she was held in solidarity confinement at central prison for men. The Court of Appeal, on November 22 — 2021 amended that verdict to one (1) month imprisonment and a fine.
[11] The report further states, “Due to social convention and potential repression, LGBTQI+ organizations neither operated openly nor held any events or pride marches.” Since then, as the claimant provided an update in Exhibit 6, Kuwait’s Constitutional Court has overturned the law which imposed a fine and imprisonment for one (1) to two (2) years — one (1) to three (3) years for persons imitating the appearance of the opposite sex in public, saying it violated personal freedom. But the article notes that the judiciary is historically transphobic and cite Shariah law in its judgments denouncing, “Sex change,” as, “The work of the devil and against Islamic and Kuwaiti values.” Item 6.2 is a Human Rights Watch report from June 2020, which details a transgender woman’s treatment by police in Kuwait. She had been summoned four (4) times to the police station for the former crime of imitating women, and states she was raped and beaten senseless by police and detained seven (7) months in 2019. The Human Rights report states, “Transgender women have reported multiple forms of abuse at the hand of the police, while in detention, including degrading and humiliating treatment such as being forced to strip and being paraded around police stations, being forced to dance for officers, sexual humiliation, verbal taunts and intimidation, solitary confinement and emotional and physical abuse that could amount to torture.”
[12] Item 6.1 is the 2019 report issued by the International Lesbian, Gay, Bisexual, Trans and Intersex Association, which states that in 2013, the government banned gay men and transgender persons from even entering the country. And the director of public health announced that the country had developed, “A technology to detect such persons.” So this 2019 report was quoting an Atlantic article which was entitled, “Kuwait Thinks its Gaydar is Good Enough to Ban Gays From the Country.” I find the objective evidence corroborates the claimant’s fear that she faces a serious possibility of arrest and physical abuse at the hands of the police in Kuwait due to being a transgender woman. Furthermore, the objective evidence indicates that society does not support a person who is — who wishes to be openly gay or transgender in Kuwait. One (1) article, provided by the claimant, states that the Kuwaiti government, less than one (1) year ago, launched an extensive campaign against LGBT slogans, most notably the rainbow flag. The claimant’s evidence that she was continually harassed and insulted for being a feminine, when she was in Kuwait, and that her family tried to, “Fix her.”
[13] Considering the evidence before me regarding the treatment of LGBTQ community in Kuwait by the state and the laws in place, and her own experience growing Kuwait, I find that the claimant’s fear is objectively well-founded and there is a serious possibility she will face discrimination as a transgender woman in the form of harassment, threats and violence by members of society and the police. And possible arrest amounting to persecution.
[14] Now regarding Egypt, the 2021 US DOS human report (sic), which is at 2.1 states although law does not explicitly criminalize consensual same sex activity, LGBTQI+ persons were arrested and prosecuted in Egypt on charges such as debauchery, prostitution and violating family values. For which the law provides prison sentences of up to 10 years. According to a local rights group, there was more than 250 reports of such arrests since 213 (sic). Rights groups and activists reported harassment by police, including physical assault and forced payment of bribes to provide information concerning other LGBTQI+ individuals or to avoid arrests. There were reports of authorities using social media, dating websites and mobile phone apps to entrap persons they suspected of being gay or transgender.
[15] Rights groups reported that authorities, including the forensic medical authority, conduct forced anal examinations, which rights groups indicated primarily targeted LGBTQI+ individuals. The law allows for conducting forced anal exams in cases of debauchery. Authorities did not use anti-discrimination laws to protect such individuals. Legal discrimination and social stigma impeded LGBTQI+ persons from organizing or advocating publicly in defense of their rights. In May 2021, border guard prevented two (2) transgender Israelis from entering the Sinai for tourism because they did not appear to belong to the sex listed in their passports. According to LGBTQI+ rights organizations, in a 2020 annual report issued in January, Authorities arrested 25 individuals in 2020 and conducted forced anal exams on six (6) persons.
[16] According to Item 6.1 of the NDP, the laws against debauchery have been used liberally to imprison men in recent years and it also notes that in January 2019 a television host was sentenced to one (1) year imprisonment for just interviewing a gay man on television. Item 6.2 states, “Egyptian authorities do not only target gay and transwomen, but also bisexual men, intersex and gender non-conforming individuals. Simply put, they persecute anyone who looks as if they do not fit social norms. The violations of the rights of LGBTQI+ persons in Egypt means the deterioration of the rule of law that affects all individuals expressing ideas or behaviours that do not align the narrow and cis-heteronormative conception of what Egyptian society should resemble.”
[17] So like in Kuwait, the Egyptian authorities are targeting and attacking transgender persons and arresting them for debauchery. A television host was sentenced to a year imprisonment just interviewing someone who was gay on his show. The objective evidence overwhelmingly indicates that there is social stigma against LGBTQI+ persons in Egypt. Considering the evidence before me regarding the treatment of the community in Egypt by the state and the laws in place, I find that the claimant’s fear in Egypt is objectively well-founded and there is a serious possibility she will face discrimination as a transgender woman, including harassment, threats and violence by members of society and the police in Egypt. And possible arrest amounting to persecution.
State Protection
[18] I find that there is no adequate state protection for the claimant in either Kuwait or Egypt. The objective evidence discussed, as I have already stated, indicates that both countries have either enacted laws against LGBTQI+ persons or use other laws, such as debauchery, against the community and they enforce them. As the state is one (1) of the agents of persecution, I find that the claimant has rebutted the presumption of state protection in both countries.
Internal Flight Alternative
[19] I find that there is no viable internal flight alternative for the claimant in either Kuwait or Egypt. The respective laws against same sex relationships are in effect throughout the two (2) countries and are enforced, often violently. The homophobic attitude and treatment that the claimant experienced growing up in Kuwait by members of her own community and from members of her own family, would continue if she would were to return to her home country as a transwoman. And those attitudes will be shared in any potential IFA in Kuwait and Egypt. The claimant states that in Canada, for the first time in her life, she has a community she calls her own. I find the claimant would not have such a safe community anywhere in Egypt or Kuwait.
CONCLUSION
[20] Considering all of the foregoing, I find that the claimant has established that there is a serious possibility she will face persecution if she were to return to Kuwait or Egypt and I accept her claim.
——— REASONS CONCLUDED ———