2023 RLLR 94

Citation: 2023 RLLR 94
Tribunal: Refugee Protection Division
Date of Decision: October 4, 2023
Panel: Nour El-Sabah Farhat
Counsel for the Claimant(s): Mary Alison Pridham
Country: Jamaica
RPD Number: TC2-02122
Associated RPD Number(s): N/A
ATIP Number: A-2024-00593
ATIP Pages: N/A

DECISION

[1]           MEMBER: This is the decision of the Refugee Protection Division of XXXX XXXX XXXX XXXX. The claimant is a citizen of Jamaica claiming refugee protection pursuant to section 96 and subsection 97 (1) of the Immigration and Refugee Protection Act.

ALLEGATIONS

[2]           The details of the claimant’s allegations are fully set out in the claimant’s Basis of Claim form and narrative. In short, the claimant fears persecution in Jamaica because he is a trans man. 

DETERMINATION

[3]           Having considered the quality of the evidence, the Panel finds that the claimant has satisfied the burden of establishing a serious possibility of persecution on a Convention ground based on his membership in a particular social group as a trans man. In deciding this claim, the Panel has taken into consideration the Guideline 9: proceedings before the IRB if involving sexual orientation, gender identity and expression, and sex characteristics.

ANALYSIS

Identity

[4]           With respect to the issue of identity, the claimant’s identity has been established, on a balance of probabilities, through a Jamaican passport, copy of which was provided to the Board. The claimant testified about the steps he had to take in order to renew his passport with his chosen name at the Jamaican Embassy. However, the claimant testified that it was not possible to change the identity markers in the passport, hence why the letter F is still on his passport under the mention sex. The Panel accepts the explanations of the claimant on the balance of probabilities. 

Credibility 

[5]           In assessing the credibility of the evidence presented by a claimant in support of his refugee claim, the Panel is guided by the principles established in the Federal Court of Appeals decision of Maldonado. When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary. In this case, the claimant’s narrative is detailed and intricate. At the hearing, the claimant has provided some spontaneous details in support of his allegation. For example, the reason he chose his name. Based on the evidence, the Panel finds the claimant to be a credible witness and therefore believes what he has alleged in support of his claim. 

[6]           The evidence demonstrates, in detail, the claimant’s story in regard to his gender identity and expression. The claimant made bodily changes using medical and other means to align his sex characteristics with his gender identity. The claimant provided substantial and intricate documentation to corroborate his allegation regarding his gender identity. The claimant presented reliable evidence, including medical and XXXX reports, a letter confirming his XXXX XXXX XXXX XXXX, letters of support from friends and school personnel, and pictures detailing his transition. On the face of it, the Panel has no reason to doubt the authenticity of the extensive documentary evidence the claimant has disclosed and finds, on a balance of probabilities, that the evidence supports and corroborates the allegations of the claimant. The Panel therefore assigns the evidence full weight in corroborating the claimant’s core allegations. 

[7]           The claimant arrived in Canada in XXXX 2015. He was accepted to the XXXX XXXX XXXX XXXX XXXX and graduated in 2018. After his graduation, the claimant had a work permit. However, after 2021, the claimant did not have a valid immigration status. It is important to note that the claimant was unable to apply to refugee protection because he was XXXX and physically unwell as it appears from the evidence. The Panel therefore accept that the claimant is a trans man and that he has a subjective fear of persecution if he returns to Jamaica on a balance of probabilities, because of his gender identity and expression as a trans man.

Well-Founded Fear of Persecution

[8]           The Panel finds that the objective evidence supports the claimant’s subjective fear and establishes a serious possibility of persecution for the claimant if he is forced to return to Jamaica. The Panel’s reasons are as follows: According to the objective documentary evidence, homophobia and transphobia remain high in Jamaica. LGBT people are regularly subjected to discrimination and violence. There have been consistent reports of severe discrimination and violence being committed against LGBT people in recent years, including assaults, harassment, extortion, and denial of basic human rights and services. According to the objective evidence, homophobia and transphobia in Jamaica has admittedly led to loss of employment, discrimination in the workplace and educational settings, poor health outcomes, and poverty. Accordingly, the law, in its current state, makes LGBT people in Jamaica extremely vulnerable to discrimination, abuse, violence, and extortion. For these reasons, the Panel finds that the claimant’s fear of returning to Jamaica is well-founded according to objective evidence, and that the claimant faces a serious possibility of persecution if he is forced to return to Jamaica. 

State Protection

[9]           The Panel finds that it would be objectively unreasonable for the claimant to seek the protection of Jamaica. The objective evidence indicates that the state is, at best, ineffective in ensuring the safety of its LGBT citizens. The objective documentary evidence indicates that the LGBT community is being targeted in Jamaica and that the government’s failure to protect its sexual minorities and its failure or unwillingness to hold accountable those responsible for their persecution has helped foster a climate of impunity for perpetrators. The Panel finds that the documentary evidence supports the claimant’s allegation that he would not be protected by the state. Therefore, the Panel finds the presumption of state protection is rebutted. 

Internal Flight Alternative

[10]        The Panel notes the evidence of discrimination against members of the LGBT community is prevalent throughout Jamaica. The Panel finds there is no particular city or location the claimant could live in without having to hide their personal identity in order to live without persecution. Therefore, there is no IFA for the claimant in Jamaica. 

CONCLUSION

[11]        For the foregoing reasons, the Panel concludes that the claimant faces a serious possibility of persecution if returned to Jamaica on the basis of his membership to a particular social group as a trans man, and that the claimant is a Convention refugee under section 96 of the IRPA. Therefore, his claim is accepted. Thank you very much. 

——— REASONS CONCLUDED ———