2024 RLLR 136
Citation: 2024 RLLR 136
Tribunal: Refugee Protection Division
Date of Decision: September 3, 2024
Panel: Peter Okakpu
Counsel for the Claimant(s): Kareem Essam Ibrahim
Country: El Salvador
RPD Number: TC3-19786
Associated RPD Number(s): N/A
ATIP Number: A-2025-00724
ATIP Pages: N/A
DECISION
[1] MEMBER:
REASONS FOR DECISION
INTRODUCTION
[2] These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX (the claimant). The claimant alleges that he is a citizen of El Salvador and claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (I-R-P-A, IRPA).
ALLEGATIONS
[3] The details of the claimant’s allegations are set out in his Basis of Claim form in Exhibits 2.
[4] In summary, the claimant fears persecution at the hands of the El Salvadorian society (agent of harm) because of his gender identity as a transgender man.
DETERMINATION
[5] The panel finds that the claimant faces a serious possibility of persecution at the hands of the agent of harm because he is a member of a particular social group being a transgender man. Therefore, the panel finds that the claimant is a Convention refugee under section 96 of the IRPA.
Analysis
[6] In making this assessment, the panel considered and applied Chairperson’s Guideline 4 on Gender Considerations in Proceedings Before the IRB. The panel also considered Chairperson’s Guideline 9 on Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics
Identity
[7] The panel finds that the claimant’s identity has been established as an El Salvadorian national on a balance of probabilities through the copy of his El Salvadorian passport on file in Exhibit 1.
Nexus
[8] The panel finds that there is a nexus between the claimant’s allegations and the refugee Convention ground of particular social group being a transgender man. Accordingly, his claim is assessed under section 96 of the IRPA.
Credibility
[9] Pursuant to the Maldonado Principle, it is presumed that sworn testimony is true unless there are sufficient reasons to trust its trustworthiness. The claimant testified in a detailed, spontaneous, and straightforward manner with regard to the central elements of his claim. There were no inconsistencies or omissions which went to the core of his claim. Therefore, the panel finds that the claimant is a credible witness.
[10] The claimant testified as to his gender identity as a transgender man. He testified as to his experiences in El Salvador. The panel finds the claimant’s testimony regarding his experiences to be persuasive and entirely consistent with his BOC narrative because it contains a level of detail one would expect from someone who was involved in the experience described.
[11] The claimant called two (2) witnesses; first he called XXXX (ph) Aguila (ph) XXXX(ph) who he has known for about 12 years and his aunt, XXXX XXXX XXXX XXXX. The two (2) witnesses testified regarding the claimant’s experiences in El Salvador and to his gender identity as a transgender man. The panel finds that the two (2) witnesses are credible as they were able to furnish fine details of the claimant’s experiences. Therefore, the panel accepts their testimonies as corroborative of the claimant’s testimony.
Failure to Claim in the U.S.
[12] The panel had concerns with the claimant’s failure to claim asylum in the U.S. where he spent 10 years. When asked, the claimant explained that he never felt at home in the U.S., and he only felt safe in Canada and wanted to rejoin and reunite with his family in Canada. The panel finds the claimant’s explanation for not making a refugee claim in the U.S. to be unreasonable because the claimant spent 10 years there. Therefore, the panel draws adverse credibility inference from this failure. However, the panel finds that the risk the claimant would face if returned to El Salvador outweighs the effects of this negative inference.
Overall Credibility Finding
[13] Overall, the panel finds that the claimant’s testimony and that of his witnesses to be straightforward and devoid of inconsistencies. Given these findings, the panel accepts the central tenets of the claimant’s claim regarding his subjective fear of persecution at the hands of the agent of harm because of his gender identity as a transgender man.
Objective Basis
[14] The evidence in the National Documentation Package (NDP) for El Salvador in Exhibit 3 and the country documentation submitted by the claimant in Exhibit 5 demonstrates that there is objective basis for the claimant’s subjective fear of persecution at the hands of the agents of harm because of his gender identity as a transgender man.
[15] Item 6.5 of the NDPP is a Human Rights Watch article entitled I am Lucky to be Alive. Violence and Discrimination against LGBTQ people in El Salvador. It states that violence and discrimination against LGBTQ+ [2SLGBTQI+] people take place in the context of family rejection and social stigma and that despite some progress in attitudes towards LGBTQ people in El Salvador, social stigma remains pervasive. The report indicates that churches and families are significant sources of stigma, reports that churches practice conversion therapy attempting to change people’s gender identity or sexual orientation. It also reports that LGBTQ+ people have consistently been targeted for attacks and murder by the gangs and other sectors of society including the police and other public authorities and that El Salvador’s gangs have demonstrated virulent hatred and ill treatment of persons based on their perceived gender orientation or gender identity.
[16] The Inter-American Commission of Human Rights reports similar concerns. Item 6.5 indicates that the Salvadorian government acknowledges the violence and discrimination that confronts LGBTQ+ Salvadorans including that it has tabulated 692 cases of violence against LGBTQ+ people in the last five (5) years. The government do also acknowledge violations at the hands of security officials.
[17] The NDPP also contains abundant evidence confirming the violence faced by LGBTQ+ people in El Salvador from family, community, gangs, and state authorities.
[18] Based on the objective evidence cited above and the claimant’s testimony which establishes his subjective fear, the panel finds that the claimant being a transgender man, has demonstrated on a balance of probabilities that there is a subjective basis, there is objective basis for a well-founded forwarded facing fear of persecution should he return to El Salvador.
State Protection
[19] Except in situations where the state is in complete breakdown, states must be presumed to be capable of protecting their own citizens. To rebut this presumption, the onus is on the claimant to establish on a balance of probabilities and through clear and convincing evidence that their state’s protection is inadequate. The panel finds that this presumption has been rebutted in this case.
[20] Item 6.4 of the NDP indicates that El Salvador’s laws and policies are rarely overly hostile to LGBTQ+ people; however, in practice, El Salvador’s efforts to protect LGBTQ+ people’s rights at home have been inadequate and activists say that since President Bukele took office in 2019, initiatives put in place under the previous government aimed at promoting LGBTQ+ inclusion have been downgraded or not implemented.
[21] Item 6.2 entitled Uninformed Injustice state violence against LGBTQ people in El Salvador cites the findings made by the Georgetown Law Human Rights Institute regarding abuse against LGBTQ+ persons committed by law enforcement. While engaging in law enforcement, it is reported that members of the police and military have raped, beaten, stalked, arbitrarily searched, arbitrarily detained, extorted, intimidated, and threatened LGBTQ+ people. Police and soldiers have been known to initiate violence against people on the streets whose non-conforming social orientation or gender identity is readily apparent, and police and soldiers have escalated routine encounters such as ID checks into violence once that they learn that the person is lesbian, gay, bisexual or transgender and police and military violence towards LGBTQ+ people is often sexual or gender in nature.
[22] The panel finds that state authorities are not only unable to protect LGBTQ+ people in many cases, police and military personnel themselves are the perpetrators of violence against the LGBTQ+ community. Therefore, the panel is satisfied that the presumption of state protection is rebutted, and that the claimant has not in the past and will not be in the future be able to obtain state protection (inaudible).
Internal Flight Alternative (IFA)
[23] The panel has examined whether a viable IFA exists for the claimant. The objective evidence is also clear that social stigma, social rejection, violence, abuse at the hands of gang members and state actors is widespread throughout El Salvador. The panel therefore finds that the there is no safe and viable IFA for the claimant in El Salvador.
CONCLUSION
[24] Based on the preceding analysis, the panel finds that the claimant is a Convention refugee pursuant to section 96 of the IRPA. The claim is therefore accepted.
——— REASONS CONCLUDED ———