2024 RLLR 3

Citation: 2024 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: July 22, 2024
Panel: S. Somers
Counsel for the Claimant(s): Heather Cameron Purves
Country: Philippines
RPD Number: VC4-05119
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A

 

DECISION

INTRODUCTION

[1]                   These are the reasons for the decision in the refugee claim of XXXX XXXX, a citizen of the Philippines who is seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1] I note that the cover page of these reasons identifies the claimant by a different name, which I understand remains her legal name. I respect and wish to honour the claimant’s right to be addressed by her chosen name. However, I understand that the use of a name different from that under which the claim was referred to the Refugee Protection Division may present administrative difficulties in future immigration or other processes and as such have included the claimant’s legal name on the cover page of this decision in the hope of avoiding such difficulties. I will refer to the claimant exclusively by the name XXXX XXXX throughout the remainder of these reasons.

[2]                   This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD)[2] and paragraph 170(f) of IRPA. The file-review process letter was sent on June 7th, 2024.[3] The RPD received the claimant’s certificate of readiness on June 30th, 2024.[4]

[3]                   In rendering these reasons, I have considered and applied the Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board (Guideline 4),[5] a document that provides guidance to adjudicators tasked with decision-making in claims involving gender considerations. I have also considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (Guideline 9).[6] 

ALLEGATIONS

[4]                   The claimant’s allegations are set out in her Basis of Claim form and supporting evidence.[7] To summarize briefly, the claimant identifies as a transgender woman who has experienced a history of threats, sexual harassment and violence at the hands of community members and society at large due to her gender identity and expression. She fears she will continue to suffer such harm if she returns to her country.

DETERMINATION

[5]                   I find the claimant is a Convention refugee, pursuant to section 96 of the IRPA.

ANALYSIS

Identity

[6]                   I find the claimant’s passport at Exhibit 1 establishes her national identity as a citizen of the Philippines.[8] I find that the claimant’s personal identity is established by copies of identity documents from the Philippines provided in Exhibit 4.1, as well as a Canadian provincial identity card indicating the claimant’s correct gender marker.[9] All of the claimant’s identity documents list her legal name. 8.5.4.4 of Guideline 9 notes that adjudicators should be aware that gender-related inconsistencies may be found in personal identity documents of trans individuals and should exercise caution before drawing negative inferences from discrepancies in gender identification documents. I note the individual in each of the submitted photo identity documents resembles the claimant and I find on a balance of probabilities, the claimant has established both her national and personal identity.

Nexus

[7]                   I have examined this claim under section 96 of the IRPA, as I find the risks the claimant faces constitute persecution based on at least one of the grounds prescribed in the Refugee Convention. Specifically, the allegations in this claim have a nexus to the Convention ground of membership in a particular social group based on gender identity. I note as well that Canadian jurisprudence and Guideline 4 make it clear that the board must consider the interplay between multiple grounds of persecution advanced by a claimant or evident in a claim whether raised by a claimant or not.[10] Section 8.2.1 of Guideline 9 also notes that in Ward, the Supreme Court of Canada recognized that sexual orientation can be characterized as a particular social group.[11] This extends to gender identity and expression and sex characteristics. In this claim, the multiple grounds of persecution faced by the claimant do intersect and interact, operating to magnify the risks she faces.

 

Credibility

[8]                   The central allegations in this claim relate primarily to the claimant’s identity as a transgender woman, and her real and imputed sexual orientation. The claimant alleges that her identity as a transgender woman, along with her real and imputed sexual orientation, places her at risk of gender-based persecution in the Philippines from the state and society in general. I find these allegations to be credible. In reviewing the claimant’s statements and the documents submitted in support of this claim, I note no serious credibility issues and find no reason to doubt their authenticity.

[9]                   The claimant alleges that she always knew she was “different”, even in her early life. Apart from her father, her immediate family was accepting and attempted to protect her from harassment and discrimination from extended family members and others. The claimant’s father never approved of the claimant’s appearance or behaviour and would forbid her from leaving the house dressed as a woman. The claimant states that as a university student she had to conform to wearing the school’s standardized boy’s uniform and keep her hair short.

[10]                   The claimant alleges she decided to go through XXXX XXXX at 21 years old and began presenting more frequently as a woman; however, she went through this process unsupported as health and medical clinics did not offer the gender affirming care she required. The claimant states that transgender women in the Philippines rely on the experiences of others in the transgender community and hope that their own transition process is without danger or complication. The claimant alleges that after she began presenting as a woman, she began to experience harassment and harm more frequently. The claimant describes a history of repetitive misgendering, being referred to by derogatory terms, and difficulty accessing social services and employment unless she complied with socially acceptable gender norms and dress in the Philippines.

[11]                   The claimant also alleges a history of sexual violence and abuse stemming from childhood to adulthood. The claimant believes she and not other children were targeted in her community because the perpetrators suspected that she was “gay”[12] and they threatened to expose her sexuality if she did not do what they told her. The claimant also describes an abhorrent incident in 2017 where she was sexually assaulted with a weapon by a group of men.

[12]                   I note that in section 8.3.1 of Guideline 9 states that individuals may be subjected to persecution by reason of their perceived or imputed sexual orientation, gender identity and expression and sex characteristics (SOGIESC) because they do not fit stereotypical appearances or conform to socially accepted SOGIESC norms in a particular cultural environment. Guideline 9 further states in section 8.5.4.3 that trans and intersex individuals may face elevated risks of physical and sexual violence in addition to being particularly vulnerable to systemic discrimination and acts of violence due to their non-conformity with socially accepted norms in a particular cultural environment of gender presentation. Guideline 9 also notes that trans individuals may experience discrimination in employment, access to health care, medical treatment, and social services. Guideline 9 promotes greater understanding of cases like the claimant’s in assessing credibility, as such I find her past experiences living as a transwoman in the Philippines amounts to persecution.

[13]                   The claimant has provided corroborative documents that, along with her own statements, establish on a balance of probabilities that she is a transgender woman. These documents include:[13]

[14]                   A letter of support from her doctor in Canada stating that the claimant has been living in her affirmed gender and taking XXXX XXXX for many years and while in the Philippines was self-sourcing hormone medication, in addition to photos of the claimant throughout the years as a young adult in the Philippines and as an adult in Canada recovering from gender affirming surgery, I note that the individual in the photograph resembles the claimant. These items corroborate the allegation the claimant has sought gender affirming care in the Philippines and in Canada.

[15]                   A letter of support from the co-executive director of XXXX XXXX, a community-based organization for self-identifying SOGIESC refugee claimants, stating that the claimant has made a significant impact in their organization since XXXX 2023 by coming to weekly drop ins, volunteering for events and bravely identifies as a trans-gender woman, along with photos of the claimant volunteering at XXXX XXXX events, along with photos of the claimant’s social media dating app profile indicating that she is a transgender woman and that she is “not here to fulfil your fantasy or answer your curious questions” and is looking for a person “who can treat [her] with respect”, corroborate the allegation that the claimant is living openly with her affirmed gender identity in Canada.

[16]                   Letters of support from the claimant’s friends in the Philippines and in Canada who also belong to the LGBTQ community speaking to their observations of the claimant’s struggles living in the Philippines as a transgender woman and her experiences living in Canada openly as a transgender woman, corroborates the allegation that the claimant has lived in the Philippines and Canada as transgender woman and experienced harm in the former.

[17]                   I note that the claimant previously travelled to Canada from XXXX 2013 to XXXX 2015. In a letter sent to the claimant and counsel on June 7th, 2024, the claimant was asked why she did not make a claim for refugee protection at this time and returned to the alleged country of persecution, the Philippines.[14]

[18]                   The claimant responded that when she was in Canada during this period, she was unaware of the refugee protection system.[15] She came to Canada to visit her cousin and although she did not want to return to the Philippines she did not know how she could extend her visa. She states that she did not want to be in violation of immigration laws and returned to the Philippines to comply with her visitor’s visa. After returning to the Philippines and experiencing increasing difficulty in the subsequent years living as a transgender woman the claimant began exploring options of how to return to Canada, through this process she learned about the asylum process and about XXXX XXXX. I find the claimant’s explanation for not claiming asylum when she first visited Canada as she did not know about the asylum process and did not want to jeopardize her immigration status reasonable in the alleged circumstances. I find that it does not give rise to any significant subjective fear or credibility concerns to her material allegations of her fear of returning to the Philippines as a transgender woman which I find as fact. 

Well-Founded Fear of Persecution

[19]                   To establish one’s status as a Convention refugee, a claimant must show a serious possibility of persecution if removed to their country of nationality. Given that there are no serious credibility issues with respect to the claimant’s allegations about her identity, coupled with my assessment of the documentary evidence set out below, I find she has met this burden. The claimant’s gender identity as a transgender woman may be understood as being an individual with a profile in a membership of a particular social group that faces risk from the state and society at large. The risks the claimant alleges in relation to her gender identity are corroborated by the objective country condition evidence before me, which consists of the documents in the latest version of the National Documentation Package for the Philippines.[16]

[20]                   The latest version of the United States Department of State report notes that there are significant human rights issues involving gender-based violence including but not limited to crimes involving violence or threats of violence targeting transgender persons.[17] There are no criminal justice mechanisms that exist to aid in the prosecution of bias-motivated crimes against SOGIESC individuals.[18] However, there are some anti-discrimination ordinances at the municipal level prohibiting employment discrimination against SOGIESC individuals, including some of the country’s largest cities. But it appears that efforts at the local level have not transcended to changing societal attitudes or national policies more broadly. For example, officials prohibit trans individuals from obtaining passports or official documents which reflect their gender identity.[19]

[21]                   Item 6.3 of the NDP includes a 2017 Human Rights Watch report entitled “Just Let Us Be”. It states that LGBT students in the Philippines too often find that their schooling experience is marred by bullying, discrimination, lack of access to LGBT related information and in some cases physical or sexual assault.  These abuses can cause deep lasting harm and curtail students’ right to education protected under Philippine and international law. While some strong laws and policies were enacted in 2012 and 2013 and they do exist on paper, they have not been adequately enforced. 

[22]                   Human Rights Watch further reports that efforts to address discrimination against LGBT people have met with resistance including by religious leaders. The Catholic Bishops conference of the Philippines has condemned violence and discrimination against LGBT people but in practice the Roman Catholic church has resisted laws and policies that would protect LGBT rights. The Catholic Bishops conference of the Philippines has sought to weaken anti-discrimination legislation before congress.

[23]                   Human Rights Watch also reported that the Supreme Court has limited the possibility of legal gender recognition ruling that intersex people may legally change their gender under existing law, but transgender people may not. Although laws do not criminalise same sex relationships, actions by the state clearly demonstrate discriminatory views and treatment of sexual minorities. For example, the United Nations development program report that military policies result in discharge from the military on the basis of sexual orientation.[20] In addition, police officers are discharged for sexual perversion and its memorandum places homosexuality under neurological and psychiatric disorders making a person unsuitable for police service.[21]

[24]                   Item 6.4 of the NDP is the 2018 report from the United Nations Commission on Human Rights of the Philippines.[22] It states that Article 200 of the revised penal code penalizes anyone who “shall offend against decency and good customs”. Due to the subjectivity of what offends “decency and good customs”, transgender women and gay men are often at greater risk of having this provision applied against them when they are seen in the streets and are at risk of detention and arrest. The report does note that cases such as these are rarely pursued and prosecuted. However, the report also states that in the Philippines, transgender women are often assumed to be sex workers due to large widespread misunderstandings and stereotypes of transgender people, sex work is also illegal in the Philippines therefore bringing an additional police surveillance to transgender women.

[25]                   The United Nations Commission report goes on to describe an incident of a transgender woman who when attempted to make a complaint to the police after experiencing a gang rape and was ridiculed by the police and accused of making the first sexual approach and “enjoyed what happened to her”. Although some government agencies have had some gender sensitivity trainings and have become more aware of protecting and promoting women’s rights, the focus is on cisgender women’s rights and there is insufficient understanding of the impacts transgender people face in dealing with state and government agencies. For example, the report notes that the Women and Children Protection Center of the Philippine National Police Trust does not accept complaints of violence reported by transgender women, although they are free to make a complaint at the general public desks. This creates a barrier for transgender woman, an already vulnerable group prone to violence, to report gender-based violence and hate crimes in a public setting.

[26]                   In addition to the country condition evidence, I find that the claimant’s own past experiences support my conclusion that her fear of persecution if she was to return to the Philippines is well-founded. As detailed above, the claimant has been subjected to years of threats, sexual harassment and violence due to her gender identity and expression. I find that this past persecution is a compelling indicator of what she is likely to experience in the Philippines in the future.

[27]                   Individuals have a right to freely express opinions and preferences, particularly those that relate to bodily autonomy and integrity without a fear of persecution and it is very clear that the claimant cannot do this in the Philippines where I find that an atmosphere of intolerance and repression exists for transgender women. In this claim, the claimant’s intersecting identity as a transgender woman and her real and imputed sexual orientation are intersecting grounds of persecution, and each increases the risk of persecution in relation to the other. I find that the claimant faces a serious possibility of persecution if she were to return to the Philippines.

State Protection

[28]                   I have considered whether adequate state protection is available to the claimant in the Philippines and I find there is not. Except in situations where the state is in a complete breakdown, states are presumed to be capable of protection their citizens. The onus is on the claimant to rebut this presumption through clear and convincing evidence of the state’s inability to protect its citizens. The claimant must provide relevant, reliable, and convincing evidence that satisfies the Board on a balance of probabilities that state protection is inadequate. The test of whether there is adequate protection requires a consideration of whether state protection is operationally effective. The claimant is required to approach the state to access state protection if protection might be reasonably forthcoming or it is objectively reasonable to have sought protection. 

[29]                   The Philippines is not in a complete breakdown and so the claimant had an obligation to seek state protection if protection was reasonably forthcoming or it was objectively reasonably for her to do so. The claimant never approached the state for protection. However, the state is an agent of persecution in this claim. The claimant’s statements about the sexual assault in 2017 demonstrate the fear she had in approaching state authorities as a transgender woman. As mentioned above, police officers do not provide protection for LGBT individuals but rather they harass and intimidate them. As such I find that it is not reasonable to expect the claimant to obtain state protection when it is the state she fears. I find that there is clear and convincing evidence that the presumption of state protection has been rebutted. I find, on a balance of probabilities, the government of Philippines would not be willing or able to provide the Claimant with an adequate level of state protection.

Internal Flight Alternative

[30]                   In this claim the issues of state protection and Internal Flight Alternative (IFA) are intertwined. The officers who are tasked with protecting the citizens of the Philippines are, in the case of transgender women, targeting them. In terms of an IFA in the Philippines, the state is in control of its entire territory and discriminatory laws and policies are applicable throughout the country. I find that the claimant does not have an IFA anywhere in the Philippines.

[31]                   The test for a viable IFA is two pronged.  The Board must be satisfied that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and conditions in the part of the country considered to be an IFA must be such that it would not be objectively unreasonable in all the circumstances, including those particular to the claimant for her to seek refuge there. As noted above the Claimant fears the state as one of the agents of persecution. As the state is an agent of persecution in this claim and the state is in control of the entire country. I find that the Claimant faces a serious possibility of persecution throughout the Philippines. 

[32]                   It is well established in in law that an IFA is not viable if a SOGIESC individual must conceal their identity to live in that location.[23] I have assessed the non-exhaustive factors as set out in Section 8.7.2. in Guideline 9 regarding whether an IFA is reasonable for a SOGIESC individual, one of the factors is access to treatment related to the transition process for trans individuals in addition to the ability to secure employment, housing and access to social services. Given the claimant’s past experiences in the Philippines and the country condition evidence, I find that the claimant would not be able to access any of these things anywhere in the Philippines. As such I find that the claimant would not be safe anywhere in the Philippines.

CONCLUSION

[33]                   I find that the claimant is a Convention Refugee pursuant to section 96 of the IRPA. I accept her claim.

 

 

——— REASONS CONCLUDED ———

                       

[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).

[2] Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division, effective January 29, 2019.

[3] Exhibit 5.

[4] Exhibit 4.2.

[5] Chairperson Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, effective July 18th, 2022.

[6] Chairperson Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, effective December 17th, 2021

[7] Exhibit 2 and Exhibit 4.1

[8] Exhibit 1.

[9] Exhibit 4.1.

[10] Kusmez, 2015 FC 948

[11] Canada (Attorney General) v. Ward, [1993] S.C.R. 689

[12] Exhibit 2.

[13] Exhibit 4

[14] Exhibit 5.

[15] Exhibit 4.2.

[16] Exhibit 3, National Documentation Package (NDP), Philippines 31 May 2024.

[17] National Documentation Package, Philippines, 31 May 2024, tab 2.1: Philippines. Country Reports on Human Rights Practices for 2023. United States. Department of State. 22 April 2024.

[18] National Documentation Package, Philippines, 31 May 2024, tab 2.1: Philippines. Country Reports on Human Rights Practices for 2023. United States. Department of State. 22 April 2024.

[19] National Documentation Package, Philippines, 31 May 2024, tab 2.1: Philippines. Country Reports on Human Rights Practices for 2023. United States. Department of State. 22 April 2024.

[20] National Documentation Package, Philippines, 31 May 2024, tab 6.4: Legal gender recognition in the Philippines: A legal and policy review. United Nations Development Programme; Commission on Human Rights of the Philippines. Atty Kristine Jazz Tamayo; Jensen Byrne. 2018.

[21] National Documentation Package, Philippines, 31 May 2024, tab 6.4: Legal gender recognition in the Philippines: A legal and policy review. United Nations Development Programme; Commission on Human Rights of the Philippines. Atty Kristine Jazz Tamayo; Jensen Byrne. 2018.

[22] National Documentation Package, Philippines, 31 May 2024, tab 6.4: Legal gender recognition in the Philippines: A legal and policy review. United Nations Development Programme; Commission on Human Rights of the Philippines. Atty Kristine Jazz Tamayo; Jensen Byrne. 2018.

[23] Okoli v. Canada (Minister of Citizenship and Immigration, 2009 FC