2023 RLLR 86

Citation: 2023 RLLR 86
Tribunal: Refugee Protection Division
Date of Decision: August 22, 2023
Panel: Frank Fowlie
Counsel for the Claimant(s): Oscar Fernando Rodas
Country: Colombia
RPD Number: VC2-10309
Associated RPD Number(s): VC2-10310, VC2-10311, VC2-10312
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: It is 12:54 p.m. on the 22nd of August 2023. This is the decision of the Refugee Protection Division in the following claims. VC2‑10309 XXXX XXXX XXXX XXXX, VC2‑10310 XXXX XXXX XXXX XXXX, VC2‑10311 XXXX XXXX XXXX, VC2‑10312 XXXX XXXX XXXX XXXX. All citizens of Colombia who are claiming refugee protection pursuant to section 96 and 96(1) of the Immigration and Refugee Protection Act.

ALLEGATIONS

[2]       The claimants allege that XXXX is a child, a minor under the age of 18 years, and a family member who is in the process of transitioning from male to female. XXXX is presently 17 years of age. The claimants allege that if they were to return to Colombia, that XXXX would be in danger of persecution, of a serious possibility of persecution because of her sexual identity. The claimants further allege that the remaining three (3) family members, because of the societal structure and biases within Colombia, would also face harassment amounting to persecution because of XXXX’s sexual identity. I have reviewed and applied Chairperson’s Guideline number 9 Proceedings before the IRB involving sexual orientation, gender expression, and identity. I am mindful of the socio-cultural context of a sexual minority person and family who live in a country where transitioning is not approved in general society and where social norms based on religion incite harassment and violence towards sexual minorities.

[3]       I look at Guideline 8.5.5 dealing with minors. A minor who is identified as or is perceived to be a SOGIESC individual may be particularly vulnerable for harm. Examples of the harm that may amount to persecution for a minor who identifies or is perceived to be SOGIESC may include sexual and physical violence, forced procedures, hormone therapy, sexual orientation conversions, forced confinement. Examples of discriminatory treatment experienced by minors who are identified as or perceived to be SOGIESC that may cumulatively amount to persecution in the particular circumstances of the case include family rejection, social ostracism, denial of education, expulsion from school, harassment in school and bullying. I find that section 8.5.5 is particularly on topic with respect to XXXX. And I find that she and her family members are Convention refugees pursuant to section 96 of the Act for the reasons that follow.

ANALYSIS

Nexus

[4]       In order for a claimant to have a successful refugee claim, there has to be a nexus to one (1) of the five (5) grounds found in the United Nations Convention on the status of refugees. In this case, I find that XXXX is a member of a particular social group, being a person in transition. I also find that her parents and brother are members of a particular social group, being close family members of a person undergoing transition. As such, I have assessed this claim in accordance with section 96 of the Act.

Identity

[5]       In Exhibit 1, I am able to find passports and supporting visas from the United States and Canada for the claimants, and I believe that they are — have established their personal identity as citizens of Nigeria (sic).

Credibility

[6]       The claimants testified today in a very straightforward manner. I heard from the mother and father of XXXX and of XXXX. There was no relevant inconsistencies between the testimony that they provided and the other evidence before me, which include the several Basis of Claim forms and a lengthy narrative. XXXX testified in a manner that showed intelligence and courage as a 17-year-old in dealing with very serious and detrimental problems concerning her sexual identity. She testified that as a child of about four (4) years old, she realized that she was not a boy, but rather a girl and began living her life as a girl. She is presently 17 years of age and is undergoing XXXX XXXX in Canada consistent with a person of that age receiving normal treatment in transition. I found that the other claimants, being XXXX’s parents, also testified in a straightforward manner and provided details of the things that have occurred in XXXX’s life and her own life, their own lives. I find that XXXX suffered ongoing harassment that arises — rises to the level of discrimination as she was expelled from four (4) schools. She received — she was ostracized, stigmatized, and isolated in her communities by her neighbors and close family members. She was harassed and bullied in school. And all of these cumulatively identified to me that the harassment she received as a person in transition amounts to persecution.

[7]       The parents also described the isolation, social stigma and familial ostracization that they incurred, along with their minor son, that they have been threatened not only by their neighbors, but by rebel groups who have become aware of XXXX’s sexual identity. They have at one (1) point had to commence a lawsuit against the government in Colombia in order to secure education and medical treatment for XXXX that should have normally been available to her but was only denied to her because of her sexual orientation. The — I find that — sorry, the claimants have stated that should they return to Colombia, that XXXX would continue to be the object of persecution, especially at this stage of her transition where she would have difficulty in obtaining the medical support necessary for her to complete transition and that in society she would be stigmatized and would be persecuted in trying to find medical treatment, education, and employment. I find that the family members would also be subject to harassment that is tantamount to persecution because they have received threats from neighbors and rebels. They have been stigmatized. They have been isolated from their family, and they have had to take extreme steps of going to court, which has stigmatized them within the government. Concerning their subjective fears. I find that they have a well-founded fear of returning to Colombia because the harassment would continue, and it would be cumulative to persecution.

[8]       Dealing with the objective evidence, I rely on a number of documents found in the National Documentation Package for Columbia, Item 5.13, Item 6.1, and Item 6.4. However, I refer directly to Item 2.15, which is a report from the United Nations High Commissioner on Refugees. And note the following, that the High Commissioner — sorry, the Human Rights Council, not the High Commission on Refugees, the Human Rights Council has noted that there are a number of problems and impediments in society for people of different sexual identities. And it has recommended that Colombia continue to and step up its efforts to combat stereotypes in society and prejudice against lesbian, gay, bisexual, transgender, and intersex people. The document further states that the Human Rights Committee is also concerned about instances of ill treatment of persons who are deprived of liberty, including members of the lesbian, gay, transgender, and intersex population. And that the Office of the High Commissioner of Human Rights has reported in detail about killings, attacks, threats, arrests and detention, infringements on the rights to privacy, enforced disappearances, and sexual violence affecting male and female human rights defenders, journalists, trade unionists, and people of gay, bisexual, transgender, and intersex groups, as well as socially and human rights activists. Based on the objective evidence and their subjective fear, I find that the claimants have a well-founded fear of persecution in Colombia if they were to return there.

CONCLUSION

[9]       For the foregoing reasons, I find that the claimants are Convention refugees pursuant to section 96 of the Act, and I accept their claims and I welcome them to Canada.

——— REASONS CONCLUDED ———