2023 RLLR 97

Citation: 2023 RLLR 97
Tribunal: Refugee Protection Division
Date of Decision: July 20, 2023
Panel: Vicki Macdonald
Counsel for the Claimant(s): Nicholas Woodward
Country: Poland
RPD Number: TC2-19651
Associated RPD Number(s): N/A
ATIP Number: A-2024-00593
ATIP Pages: N/A

DECISION

[1]         MEMBER: So, this is a decision in TC2-19651. You claim to be a citizen of Poland and are claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act, the IRPA. In deciding this claim, I have considered the claimant’s testimony and the totality of evidence in this case. Additionally, I have considered the social and cultural context, difficulties which claimants can face in obtaining documents, the milieu of the hearing room, and the stress of responding to oral questions, all in the course of arriving at my finding. I have also considered and applied Chairperson’s Guideline 9 on Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, SOGIESC. 

DETERMINATION

[2]         I find that you have credibly established that you are a Convention refugee pursuant to section 96 of the IRPA as you belong to a particular social group, being a transgender man. 

ALLEGATIONS

[3]         You allege the following: that you are a transgender man and that you have been socially and medically transitioning; that your parents are very conservative, traditional Catholics who strictly believe in typical — stereotypical gender roles; that growing up you knew there was an unease and discomfort inherent in presenting as female, but that you did not have the language to identify your gender dysphoria; that it was not until you came to Canada in 2018 that you began to learn more about the LGBTQ community, including trans identities; that it was only through connecting with members of the LGBTQ community at your job here in Canada that you began to research and understand your gender identity; that you started to understand your gender identity in or around XXXX 2019 but did not inform anyone until 2021, fearing harm and persecution; 

[4]         That you returned briefly to Poland in XXXX 2019 and came to the conclusion that the atmosphere was too dangerous to return to Poland for LGBTQ+ people; that after returning to Canada, you became aware of your gender identity and starting in XXXX 2021, you shared your gender identity with your husband and several close friends; that you only learned your gender identity was a ground for refugee status in 2022, and after learning this, you immediately took steps to make your claim; that since disclosing to your parents that you are a transgender man, that they have persistently misgendered you and you fear if returned to Poland, they would seek to change you; that you fear the general Polish society, police forces and fear that if it was discovered you have transitioned, that you would face harm at their hands. 

Identity

[5]         You have established your personal and national identity on a balance of probabilities through your oral testimony and submission of both your Polish passport at Exhibit 1 and your Ontario photo ID at Exhibit 4. 

Credibility and Fact Finding

[6]         In terms of general credibility, I found you to be a credible witness and therefore believe what you have alleged in your oral testimony and in your Basis of Claim form. I found you were spontaneous and detailed and that there were no contradictions in your testimony which go to the core of your claim. You established your credible testimony when you spoke regarding your realization of your gender identity, your continued fears regarding being discovered, and your euphoria as presenting properly and being recognized as the man you are. 

[7]         I find the following documents support your allegations: the Ontario photo ID and social media profiles at Exhibit 4 support your allegations regarding your social transition; the clinical assessment and letter from your XXXX as well as your prescriptions all at Exhibit 4 all establish that you have XXXX XXXX XXXX XXXX XXXX XXXX; the letter from your husband and seven (7) letters of support from your friends all at Exhibit 4 supporting your timeline of events and your social transition; the country condition news articles at Exhibit 4 supporting the allegations around similarly situated persons; the emails from your parents at Exhibit 4 supporting your allegations of their reactions to your transition. I have no reason to doubt the veracity of these documents and therefore assign them full weight. 

[8]         As a result, on a balance of probabilities, I find you have established the following: that you are a trans man; that you have socially and medically transitioned; that you have a genuine reason to believe your parents would be at best unsupportive of your transition; that you acted diligently in proceeding with your claim when you learned you could make a claim for refugee status. 

[9]         I considered and applied Guideline 9’s guidance on understanding the challenges faced by individuals with diverse sexual orientations and gender identities in establishing their orientation and gender identities in their refugee hearings. The Guideline informs the Panel that individuals with diverse SOGIESC recognize and may act on SOGIESC differently, and that an individual’s self-awareness and self-acceptance may present as gradual or non-linear in process. I kept this in mind in considering all of the evidence in the claim before me. I find that you have established your subjective fear and that this is established by your credible testimony, and I believe what you have alleged in your Basis of Claim form and your testimony on a balance of probabilities. 

Objective Basis

[10]      Item 2.1 mentions that there have been significant human rights issues regarding violence and threats of violence targeting transgender people in Poland. Although the Constitution prohibits discrimination for any reason whatsoever, it does not specifically mention grounds of sexual orientation or gender identity. Hate crime and incitement laws also do not identify a gender identity or sexual orientation as grounds of discrimination to be prohibited. There are laws in place which prohibit discrimination with respect to employment, but that these are frequently not applied, and it does not specifically prohibit discrimination based on gender identity. 

[11]      Item 2.3 highlights that although LGBTQ+ people enjoy full political rights and electoral opportunities, that homophobic rhetoric by government figures, including but not limited to the President and Minister of Education is commonplace, and the governing party has frequently used homophobic rhetoric warning of the alleged danger of LGBTQ rights to stoke intolerance across the country. This item also speaks extensively about the major setbacks in LGBTQ+ rights since 2019 as the Law and Justice Party and parts of the Catholic Church have stoked fears relating to the LGBTQ+ community. As Poland’s laws against inciting hatred do not cover crimes motivated by sexuality or gender identity, public figures remain free to use slurs that would be prosecuted if targeted at other marginalized groups. 

[12]      Item 6.1 and 6.2 also speak about this, noting that there have been some judicial intervention to remove legislation and bylaws which target LGBTQ+ people, but that political speeches and leaders continue to levy hate speech against transgender people, such as comments made by the Minister of Education and the Ombudsperson for children. The Ombudsperson for children has even called for penalties and fines to be issued against LGBTQ+ organizations. That note — item also notes that there is some legal protection afforded to transgender people in Poland — went through proceedings in July 2021, but that by and large, employers continue to openly discriminate against employers — employees and customers. 6.4 highlights that Poland continues to breach its EU obligations over LGBTQ+ rights. The Law and Justice Party, the current governing party of Poland since 2019, intensified its anti-LGBTQ+ rhetoric making LGBTQ+ rights a key battle ground in parliamentary elections. With the re-election of the party, they have doubled down and have done their best to curb any and all LGBTQ rights. 

[13]      Based on this objective evidence, I find your — and the subjective fear, I find you have a well-founded fear of persecution on the basis of your gender identity. 

State Protection

[14]      There is a presumption of state protection, but I find in the particular circumstances of this claim, that presumption is rebutted. While you have not been specifically targeted by agents of the state, there is clear objective evidence which shows that the state would, on a balance of probabilities, persecute you should you ask for protection. It is unreasonable to require you to seek protection from (inaudible) where in doing so, you would be open to further harassment and violence. Item 6.2 indicates that less than four (4) percent of LGBTQ+ people who experience hate crimes report it to the police. 

[15]      Item 6.1 details a frequent establishment of legislation which targets individuals, including the transgender community, with politicians like the Minister of Education and Ombudsperson for children seeking to instill penalties and fines against LGBTQ+ organisations. It is clear that there is an ongoing effort to suppress the community and in doing so, a frequent attack on the rights of any person belonging to that community. Moreover, as previously mentioned, 2.3 highlights that anti-discrimination laws do not include gender identity as a specific clause, and that laws do not mention gender identity as a ground on which hate speech is prohibited and the law on inciting hatred does not extend to gender identity. 

[16]      As a result, when combined with the general atmosphere in Poland, which is commonly held by security forces, I find state protection would not be available to him as the police would be unwilling to assist to you. 

Internal Flight Alternative

[17]      I have considered whether there is a viable internal flight alternative available to you. Poland is a state which is in full control of its territories. I note that there is some information at Item 6 about Warsaw’s mayor attempting to protect LGBTQ+ rights, but the evidence indicates that in doing so, there has been a substantial backlash by state officials. As the treatment of transgender people by and large does not vary across the country, I find you would face a serious possibility of persecution throughout Poland. As a result, there is no viable internal flight alternative available to you on a balance of probabilities. 

CONCLUSION

[18]      Based on the totality of evidence before me, including your credible testimony, I find you have established a serious possibility of persecution based on your membership in a particular social group as a transgender person. As a result, I find you have established that you are a Convention refugee pursuant to section 96 of the IRPA and your claim is therefore accepted. 

——— REASONS CONCLUDED ———