2024 RLLR 149
Citation: 2024 RLLR 149
Tribunal: Refugee Protection Division
Date of Decision: August 8, 2024
Panel: Siobhan Yorgun
Counsel for the Claimant(s): A. Connie Campbell
Country: Costa Rica
RPD Number: VC3-13262
Associated RPD Number(s): N/A
ATIP Number: A-2025-00724
ATIP Pages: N/A
DECISION
XXXX XXXX XXXX XXXX is a Convention refugee. Your claim is accepted.
Summary of your Claim
[1] XXXX XXXX XXXX XXXX claims to be a citizen of Costa Rica. I note that correspondence also refers to you as XXXX or XXXX.
[2] You have asked for Canada’s protection. You allege that society at large as well as members of your family would harass, and discriminate against you, could subject you to violence, and will restrict your ability to safely express your gender identity and expression and render you unable to find safe housing or employment.
[3] This decision has been made without a hearing under the rules for less-complicated cases as your claim is sufficiently supported by your documents. I have considered Guideline 9 on Proceedings before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics in making this decision.
Identity
You proved who you are and where you are from
[4] You have established your identity on a balance of probabilities. This means I believe it’s more likely than not that you are who you say you are. You established this through your testimony and documents, specifically: your passport.
Convention Refugee
Your fear is linked to one of the grounds of persecution in the Refugee Convention
[5] There is a link between what you fear and one of the five the protection grounds listed in the Refugee Convention. Specifically, I find that your claim is connected to your: membership of a particular social group, as a trans woman.
[6] Since your claim is linked to a protected ground, I must determine whether you face a serious possibility of persecution in Costa Rica.
You proved important parts of your refugee claim
[7] I find your written and signed narrative is sufficiently detailed, coherent and credible. I find that it is more likely than not that what you say happened to you in Costa Rica did happen, including the abuse, emotional disturbances, shame and attitutdes you encountered and that you have identified as a trans woman since living in Canada, and have lived openly as such this last year. Your narrative was straightforward and detailed and there were no important omissions or inconsistencies in your written testimony or contradictions between your testimony and the other evidence before me which have not been satisfactorily explained.
[8] Your claim is supported by your personal documents, including: your local driver’s license with amended gender marker, your marriage certificate and your daughter’s birth certificate and pictures demonstrating your change in gender expression, as well as support letters from your spouse, a friend, and from trauma and queer refugee service providers: XXXX and XXXX XXXX.
[9] Based on your evidence before me, I find you have established a subjective fear of persecution, meaning that you genuinely fear you would be subject to harassment, discrimination in housing, employment and healthcare and exposure to violence because of your SOGIESC. I find that the credible evidence that goes to the core of your claim outweighs any contrasting evidence.
[10] As your claim arose sur place, after coming to an understanding about your gender identity in 2022, your return to Costa Rica in 2019, previous trip to the US and the time between your initial arrival in Canada in 2014 and your refugee claim in 2023, predate your risk and are not relevant to your claim and I find do not impact the credibility of your claim. I find you made your claim in a timely manner once your risk became apparent to you.
Your risk is supported by the country conditions evidence
[11] What happened to you in Costa Rica and what you fear might happen to you if you return to Costa Rica is supported by evidence about the country conditions:
[12] The National Documentation Package (NDP) evidence as relates to the experiences of minority SOGIESC inidividuals in Costa Rica, and trans women in particular, is limited. The United States Department of State report for Costa Rica, which is sparse, reports that there were no significant human rights abuses although it notes violence against women and girls was a serious problem and describes healthcare barriers for queer women. However, there are simply no reports relating to police or non-state actor violence against LGBTQIA+ persons in this report, other than reference to activists noting violence against trans women in sex work.[1] I note that a lack of reporting does not equate to an absence of violence. The few (older) reports under Tab 6 of the NDP refer to positive legislative and other changes but also refer to continuing cultural and structural problems faced by trans persons.[2]
[13] Fortunately, counsel provided recent, relevant country condition articles which amply demonstrate the deteriorating conditions for queer and trans persons in Costa Rica. These articles canvass incidences of hate crimes against trans women in Costa Rica, the significant recent growth in hate speech in the country, particularly focused on sexual orientation and gender identity with the intention of generating hatred and discrimination, and the political precariousness of the on-paper rights which had been previously gained for LGBTQIA+ persons and trans persons, specifically, in your country. These articles include comments by the country’s President threatening to veto legislation aimed at recognizing trans, non-binary gender diverse and intersex identities, using transphobic and inflammatory stereotypes and articles on the failure to ban conversion therapies, with right-wing politicians citing religious freedom.[3] Furthermore, one research paper states that “sexual harassment in both public and private spheres is a daily occurrence” in the lives of trans women.[4]
[14] The country condition evidence supports the fears you expressed in your narrative that you would feel compelled to again repress your gender identity and expression – itself a violation of your basic human rights and dignity – and that you would face stigma and even violence if you were perceived as trans, and I find this amounts to persecution.
[15] I therefore find you have established an objective basis for your fear.
State protection
You proved you will not receive protection from Costa Rica
[16] The law presumes that most countries can protect their citizens. This is called the presumption of state protection. This presumption can be rebutted (challenged) with clear and convincing evidence. In your case, you have rebutted the presumption of state protection and I find that adequate protection would not be available to you in Costa Rica.
[17] It is objectively unreasonable to expect you to approach the state in your personal circumstances because of the societal attitutdes towards trans women and the reflection of those attitudes and perpetuation of them, amongst the police. You have not lived as an openly trans woman in Costa Rica and so have not previously approached police but there is evidence that similarly situated individuals do not receive adequate protection. A research report on trans women’s experiences of violence states that “the state does nothing and has no commitment to prevent or eradicate this type of violence” [the private and public sexual harassment of trans women].[5] Articles on country conditions provided by counsel speak to police abuse of protesters, who were protesting against police use of force at the time, including trans protesters and, as already discussed, state actors are openly expressing transphobic attitudes, stalling or dismantling protections and inciting discrimination.[6]
[18] As a result, I find that you have rebutted the presumption of state protection in Costa Rica and that adequate protection would not be available to you there.
Internal flight alternative
You face a serious risk of harm throughout Costa Rica
[19] I have considered whether you have a viable internal flight alternative in Costa Rica. This means I have considered whether you could live safely in another part of Costa Rica. I find you face a serious possibility of persecution, or a risk to your life, or a risk of cruel and unusual treatment or punishment throughout Costa Rica. You have never lived openly as a trans woman in Costa Rica and so your fear of persecution is based upon the transphobic conditions faced by similarly placed persons in your country. The country conditions and societal attitudes discussed above are prevalent throughout the country and so you would face a similar risk in any part of the country.
[20] As a result, I find that there is no viable internal flight alternative for you in Costa Rica.
Conclusion: your claim is accepted
[21] Based on all the evidence and my analysis, I determine that XXXX XXXX XXXX XXXX is a Convention refugee. I accept your claim.
——— REASONS CONCLUDED ———
[1] National Documentation Package, Costa Rica, 31 May 2024, tab 2.1: Costa Rica. Country Reports on Human Rights Practices for 2023. United States. Department of State. 22 April 2024.
[2] National Documentation Package, Costa Rica, 31 May 2024, tab 6.2: Mapping Trans Rights in Costa Rica. Outright Action International. 23 November 2016.
[3] Exhibit 4, 16, 18, 21, and 24.
[4] Exhibit 4, item 29.
[5] Exhibit 4, item 29.
[6] Exhibit 4, items 14, 16, 18, 26 and 27.