2023 RLLR 85
Citation: 2023 RLLR 85
Tribunal: Refugee Protection Division
Date of Decision: July 6, 2023
Panel: Osehise Odigie
Counsel for the Claimant(s): N/A
Country: Fiji
RPD Number: VC2-09277
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX (ph), whose legal name is XXXX XXXX XXXX, a citizen of Fiji who is seeking refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act.
[2] You identify as a transgender woman, and use she/her pronouns, as well as the female name XXXX. I note your identity documentation on record reflects your birth as male. However, I will address you by your chosen name and pronouns in accordance with section 4.1 of the Chairperson’s Guideline 9 on Proceedings Before the IRB involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics. Indeed, in hearing and deciding your claim, I have considered and applied this guideline.
[3] I have considered your testimony and the other evidence in this case, and I am ready to proceed with the decision orally. You are self-represented. You have no legal representation at this hearing, so I gave you an opportunity to state on the record if you understood what the hearing was about. You confirmed your understanding of the process. As a result, I ensured various procedural safeguards were in place, such as going over the procedure of the hearing in detail, and including the issues in the claim. Throughout the explanations, I continued to check in with you, and you continued to advise that you understood the process of the hearing.
DETERMINATION
[4] I find that you are Convention refugee pursuant to section 96 of the Act, and you have a well-founded fear of persecution in Fiji by being a member of a particular social group of being a transgender woman for the following reasons.
ALLEGATIONS
[5] You are 27 years old. You self-identify as a transgender woman. You were born male, but always identified with feminine interests from a young age and have been subjected to mental and physical abuse for it. You have experienced harassment from your family and society while living in Fiji. You were bullied in school and had continued difficulties, which resulted in you relocating to Suva, the capital city, in 2014, after high school, where you state that you continued to experience abuse. You allege that you have had to endure constant threats and abuse from family and society because of your failure to adhere to gender norms. You state that you are not safe in Fiji.
[6] You came to Canada in XXXX 2022, and you made a claim soon after. You allege that if you return to Fiji, you will not be able to exercise your basic human rights, as you will not be able to live life as you want, or dress as you want. You fear that you will be killed for being transgender.
Identity
[7] Your identity has been established by a copy of your passport from Fiji and your testimony today.
Nexus
[8] I have established this claim under section 96 of the Immigration and Refugee Protection Act, as I conclude that the risk you face constitutes persecution based on at least one (1) of the grounds prescribed in the Refugee Convention. Specifically, your membership in a particular social group, being a transgender woman in Fiji.
[9] I speak to Credibility. You testified it in a straightforward and honest manner. You did not embellish or elaborate. When you did not understand my question, you asked for clarification. Your testimony was consistent with your Basis of Claim form, and I find you are a credible witness today. You spoke about your childhood, how you felt different growing up, which you started noticing from about 12 years of age while you were in primary school, but you fully confirmed in high school after interaction with others. You talked about how you are your father’s only son and expected to carry on the family name, and how the family wanted you to do masculine activities. However, you preferred to play with your cousins who are girls. This also happened at school, as you preferred to play traditional female sports instead of male sports.
[10] You testified that since coming to Canada, you have started XXXX XXXX for your physical appearance, and you will start XXXX XXXX towards the end of the year. You further stated that you feel free, and you do not feel at risk in Canada, as there is freedom for members of the LGBT community.
[11] I will speak to lack of corroborative documents. A claimant must provide acceptable documents establishing their identity and other elements of their claim. The claimants who do not provide acceptable documents must explain why they did not provide the documents, and what steps they took to obtain them. However, there is no general requirement for a claimant to provide corroborating documents. I note that you are self-represented, and you have no legal assistance in this process, and you testified that you were not aware about obtaining documentation. I also note that the SOGIESC Guideline under section 3.2 states that an individual’s testimony may be the only evidence of their SOGIESC, where, in a given case, corroborative or additional evidence is not reasonably available. Given the presumption of truth set out in Maldonado, the credibility of your testimony today, as well as the SOGIESC Guideline, I do not make negative inference from your lack of corroborating documents. Based on the presumption of truthfulness, your consistent testimony, and information provided by you in this claim, I accept that you are transgender and that you have a well-founded fear of persecution based on your gender identity as a transgender woman. I therefore find that your subjective fear is established by a credible testimony, and I believe what you have alleged on a balance of probabilities.
[12] Given that there are no serious credibility issues with respect to your central allegations, coupled with the consistent manner that you have testified today, as well as the documentary evidence that I set out below, I find that you have established a prospective risk of being subjected to harassment and threats or other actions related to your status as a transgender woman in Fiji. The allegation of risk is corroborated by the following documents in the National Documentation Package, which I will refer to going forward as NDP, for Fiji, which is dated May 31, 2022. The objective evidence demonstrates that individuals who are transgender face treatment in Fiji that amounts to persecution. NDP 2.1 states that the constitution prohibits discrimination on grounds of sexual orientation, gender, and gender identity and expression. Nevertheless, there have been complaints of discrimination against lesbian, gay, bisexual, transgender, queer, or intersex persons in employment, in housing, in access to care, and in other fields.
[13] NDP 2.3, a Freedom House report, states that lesbian, gay, bisexual, transgender, and related communities face discrimination in employment and access to health care. You have indicated that you will start hormone therapy soon. However, this will not be permitted in Fiji. NDP 6.2 states that it is not possible for transgender people to change their gender markers on identity documents, and there is no legal recognition of Fiji’s traditional third gender persons. There is some social space for trans women in Fiji. However, the work opportunities and cultural roles involve stereotypes of significant limitations. Non-heterosexual sexual orientation is especially a taboo. You would not likely be able to change your gender assigned legally in Fiji. I find that this requirement is in itself persecutory. Individuals who cannot obtain a legal change of gender are by extension unable to change their gender on their identity documents. You have also testified that you would not be able to obtain hormone treatments in Fiji.
[14] I find that you will face a significant level of stigma in Fiji, as you have in the past, if you are not identified as male on the identity documents but you present as female. I find that you will not be able to exercise your fundamental rights as an individual. I find that the level of discrimination you will face in employment, accessing health care, and other services, as well as the threats of harassment and violence, is sufficiently serious to be persecution. You cannot live openly as a transgender in Fiji without facing a serious possibility of persecution. Based on the presumption of truthfulness and your credible testimony, I accept that you are a transgender woman, and I find that you will face persecution in the society at large on this basis, and you will not be able to live safely as a transgender woman in the Fiji society. Based on the totality of evidence, I find that you have established a well-founded fear of persecution in Fiji.
[15] Now I speak to state protection. So, the next question is whether you may be able to go to the Fiji authorities for protection, and I find that you would not. According to the SOGIESC Guideline at 8.6.5, the criminalization of same-sex relationships must be carefully considered to determine whether state protection is adequate at an operational level. And it states that I, as a Member, need to examine the degree of actual implementation, the effectiveness, and durability of this legislative or other improvements in light of how state actors and general society continue to treat SOGIESC individuals. In this case, although the Fiji constitution prohibits discrimination on grounds of sexual orientation and gender identity, there is still discrimination in the society.
[16] NDP 2.3 states that LGBT+ people continue to face discrimination within Fijian society, although there is a growing movement in support of marriage equality. However, Prime Minister Bainimarama has been criticized for making prejudiced remarks in the past, and declared in August 2019 that so long as FijiFirst, a political party, remained in power, same-sex marriage would be outlawed. This indicates that there are significant obstacles for justice for SOGIESC individuals in Fiji, including, as noted, harassment, and violence, and threats of arrest from police, police refusal to file complaints submitted by LGBTI persons owing to bias or stereotypes, and the Prime Minister reiterating that as long as his political party remains in power, there would be no same-sex marriage. You have attempted to report an assault to the police in XXXX 2022, after an assault and robbery, and was made fun of, and asked embarrassing questions, and asked why you were the way you were.
[17] NDP 6.2 gives instances where SOGIESC individuals have detailed their fears, including the non-responsiveness of police to crimes in the LGBT community. NDP 10.1 states that there are allegations of human rights abuses against the police and the military, with figures showing Fiji police officers being charged with 400 serious offences in five (5) years, including murder, manslaughter, rape, and abduction. Your fears are consistent with the information in the country reports in the ND as stated above. It is clear that state protection would not be reasonably forthcoming to you as a sexual minority and as a transgender woman. I find that the presumption of state protection has been rebutted by clear and convincing evidence. There is very little protection for the rights of SOGIESC individuals in Fiji. Therefore, I find that state protection is not available to you in your particular circumstances.
[18] I have also considered whether there is a viable international flight alternative for you in Fiji. Based on the evidence regarding being a SOGEISC individual, particularly a transgender woman in Fiji, I find that a risk extends beyond your localities where you have lived and includes risk from state authorities and society at large. There is a strong societal bias against LGBTI individuals throughout Fiji. As such, there is no safety for you. I have considered the size and population of Fiji. NDP Tab 1.2 states that the total area of Fiji is about 18,000 square kilometers, and the population of Fiji is at 935,000, which is less than one (1) million people. I have also considered that you, hiding your gender identity in order to live safely, would be unreasonable in Fiji. You have already moved from your place of birth, XXXX, to the capital city in Suva, and you still experienced discrimination in different forms. Therefore, I find that you will face a serious possibility of persecution everywhere in Fiji. Accordingly, I find that there is no internal flight alternative available to you.
[19] In conclusion, for the foregoing reasons, I find that you have established that you are a Convention refugee pursuant to section 96 of the Act, and I accept your claim.
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