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All Countries Chile

2021 RLLR 15

Citation: 2021 RLLR 15
Tribunal: Refugee Protection Division
Date of Decision: November 30, 2021
Panel: Janko Predovic
Counsel for the Claimant(s): Aiden Connor Campbell
Country: Chile
RPD Number: VC1-01606
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000056-000060

DECISION

[1]     MEMBER: This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada in the claim of XXXX XXXX XXXX XXXX a citizen of Chile who is seeking refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]     In rendering my decision in this case I have considered and applied the Chairperson’s guideline on proceedings before the IRB involving sexual orientation and gender identity and expression.

Allegations:

[3]     The claimant fears persecution in Chile because of their gender identity as a gender fluid non-binary queer person, as the claimant self-described today, and, of course, also their sexual orientation toward men. The claimant does not identify as a woman, but has a very feminine gender presentation.

[4]     Details of the claimant’s allegations can be found in the Basis of Claim Form and attached Narrative at Exhibit Number 2.

[5]     In brief, the claimant has in Chile been harassed, attacked, verbally abused, and threatened in school and in public because of their appearance, mannerisms, and expressed gender and sexual identity. They studies make-up artistry and operated a business doing make-up for select clients.

[6]     They came to Canada and since then they have been involved in the LGBT community, and they have been open respecting their gender identity and expression.

[7]     They fear that if they return to Chile in order to be safe they would have to, once again, return to a partial or complete concealment of their genuine gender identity and sexual orientation because Chilean society is generally hostile to the queer community, and police and the State do not effectively protect that community.

Determination:

[8]     The claimant is a Convention refugee.

ANALYSIS:

Identity:

[9]     The claimant’s personal identity and status as a citizen of Chile has been established by their testimony and their Chilean passport located at Exhibit Number 1. I am satisfied, on a balance of probabilities, that the claimant is a citizen of Chile only.

Nexus:

[10]   The claim … the protection claim bears a nexus to the Convention, namely, membership in a particular social groups of gender fluid persons and persons with diverse sexual orientations. In this case, the claimant self-identified as gay or homosexual, and therefore I will assess the claim under Section 96.

Credibility:

[11]   I find that the claimant is credible respecting their gender identity which is the crux of this case. I did not have to hear very much of the claimant’s testimony today because the documentary evidence before is quite strong insofar it supports the claimant’s identity in that respect.

[12]   There are ample support letters from … from friends, family, and members of the LGBT community in Canada attesting to the claimant’s identity and their sexual orientation toward men.

[13]   There are ample photographs of the claimant’s involvement in social activities within the LGBT community in Chile and in Canada. There are ample photographs corroborating the claimant’s personal interest in the beauty industry, specifically make-up artistry, which the claimant has stated in their narrative is an important aspect of their gender identity and expression.

[14]   To state the obvious, the claimant presents, in person, with very long hair and a feminine appearance. Many of the photographs of the claimant in Chile depict them in public with short hair, little or no make-up, and what I would consider a limited or muted expression of their asserted gender identity.

[15]   Whereas, the photos of the claimant in Canada, where the claimant has indicated they feels safe and able to safely express their identity, show the claimant with very long hair and a much more feminine appearance, such as has been presented before the panel today.

[16]   I do not see this as any kind of inconsistency. Rather, I find the claimant’s long hair and more feminine appearance now suggests that since arriving in Canada the claimant has been able to freely express and appear as they want.

[17]   The length of the hair suggests that the choice to appear too feminine has remained consistent since the claimant’s arrival in Canada, and lends credence to the overall narrative that the claimant has been forced to conceal their true gender identity and their preferred expression in the past while living in Chile.

[18]   I draw no negative credibility inferences from the claimant’s failure to claim protection in Europe or the USA before coming to Canada. The evidence in favour of the claimant’s sorted gender identity overwhelms any negative credibility inference that may be drawn from a failure to claim protection elsewhere before coming to Canada.

[19]   In summary, I accept that the claimant is a gender fluid person, that he’s attracted to men, that they are attracted to men, and I find that the claimant has a subjective fear of returning to Chile on that account.

Objective Basis:

[20]   The objective evidence supports the claimant’s subjective fears of returning to Chile.

[21]   The NDP found at Exhibit 3 indicates that violence and discrimination against the LGBTQ community continues to be prevalent throughout the country.

[22]   For example, the US Department of State report Item 2.1 of the NDP lists violence against lesbian, gay, bisexual, transgender, and intersex persons as a significant human rights issue in the country. It indicates that incidents of violence have increased 58 percent from 2018 to 2019, and the report also describes incidents of abuse perpetrated by the police in Chile.

[23]   Further, the report indicates that although there are laws prohibiting discrimination based on sexual orientation, police appear reluctant to use the full recourse of the anti-discrimination laws. And a survey found that a majority of LGBTQ … LGBTQ persons experienced discrimination in public services, especially with respect to police services, education, and healthcare.

[24]   This is also reflected in a 2018 UN report at Item 2.6 of the NDP. That report expresses concerns specifically about the reports of violence perpetrated by State agents against lesbian, bisexual, and transgender women.

[25]   Further, the report indicates that there is persistent discrimination against LGBTQ persons, particularly in the areas of employment, education, and health services.

[26]   There’s another report by Freedom House at Item 2.4, and that indicates that while the government in Chile is taking some steps to pass anti-discrimination laws, LGBTQ persons continue to face severe and significant social bias.

[27]   The claimant has also provided country condition documents to support their claim. Those are found at Exhibit Number 4.

[28]   There are numerous news articles documenting recent violence, including murders against the LGBT community in Chile. Those news articles also refer to violent crimes perpetrated by the police. And there’s another article referencing arise in anti-LGBT violence in recent years. And all of this supplements and aligns with the evidence in the NDP.

[29]   Of course, the claimant’s own experiences as documented in their narrative of harassment and abuse in Chile reflect the objective evidence that I’ve noted above.

[30]   Base on the totality of this evidence I find that the claimant has established an objective basis for their subjective fear of persecution in Chile based on their membership in the particular social groups of gender fluid queer persons and persons of diverse sexual orientations.

State Protection:

[31]   With respect to violence and discrimination against the LGBT community, the objective evidence supports my finding that there is no operationally effective State protection available to the claimant in their particular circumstances.

[32]   In fact, as I’ve noted the police are often the perpetrators of violence against the LGBTQ community, and the situation has not been shown to approving. In fact, it’s been indicated to have been worsening in recent years. And so I find that the claimant has rebutted the presumption of State protection in this case.

Internal Flight Alternative:

[33]   I’ve considered whether there’s an IFA available to the claimant in Chile. The evidence supports that there’s a serious possibility of persecution for the claimant throughout the whole of the country.

[34]   There’s evidence of a deep rooted prejudice … prejudice against the LGBT community in Chile, and the significant violence against the community in Chile supports that finding.

[35]   There’s no good evidence before me to support a finding that the situation for gender diverse individuals might be more palatable in any other part of the country, other than where the claimant is from.

[36]   And based on the totality of the evidence I conclude there is no viable IFA in this case. The claimant would … would face a separate of persecution throughout the whole of the country.

CONCLUSION:

[37]   For the reasons above I determine that the claimant is a Convention refugee under Section 96 of the Act, and therefore I accepted the claim before the panel today.

[38]   So, congratulations to the claimant.

———- REASONS CONCLUDED ———-

Categories
All Countries Trinidad and Tobago

2021 RLLR 14

Citation: 2021 RLLR 14
Tribunal: Refugee Protection Division
Date of Decision: May 13, 2021
Panel: Kari Schroeder
Counsel for the Claimant(s): Nicolas Thiffault-Chouinard
Country: Trinidad and Tobago
RPD Number: VC1-02510
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000051-000055

DECISION

MEMBER:

Reasons for Decision

[1]     This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, as a citizen of Trinidad and Tobago, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[2]     In rendering a decision today, I have applied the Chairperson’s Guideline on Sexual Orientation and Gender Identity.

[3]     The following is a brief synopsis of the claimant’s allegations.

[4]     The claimant is a XXXX year old transgender male. He received numerous threats and encountered several incidences of discrimination, due to his sexuality, while living in Trinidad and Tobago. The claimant was afraid of going out in public in order to avoid any confrontations or threats. In addition, the claimant could not access hormone therapy treatment and has been unable to change his gender marker, which makes circumstances where identification is necessary, problematic. The claimant also spoke out publicly about trans rights at a pride parade and was shamed and victimized in a subsequent news article. The claimant changed his name in 2017. The claimant left Trinidad and Tobago on XXXX XXXX XXXX 2019, entering Canada as a visitor. He fears returning to Trinidad and Tobago where he cannot live openly as a transgender man.

DETERMINATION

[5]     I find that the claimant is a Convention refugee pursuant to section 96 of the Act, for the reasons that follow.

[6]     The claimant’s identity today has been established, on a balance of probabilities, from a certified copy of his passport on file and I find that he has established his identity as a citizen of Trinidad and Tobago.

[7]     In terms of credibility, XXXX, you were an entirely credible witness today, despite your concerns about not being understood. I found your testimony to be forthcoming and direct and straightforward. You testified to far more details of your story than what was contained in your Basis of Claim form and you shared that you had filled the form out yourself and have only recently retained counsel.

[8]     So, I don’t draw a negative inference from anything that you left out of your Basis of Claim, as I do not find that these were omissions that in any way detracted from your credibility. Rather, you provided me with spontaneous details about your story without (inaudible) any prompting from me.

[9]     For example, you told me about the experience you had on your tenth (10) birthday where you looked in the mirror and realized that you just did not feel right.

[10]   You testified about coming out to your friends, some of whom were not surprised and your family, who you described as not the worst but at the same time, that they spent a great deal of time making you feel guilty for who you are and trying to convince you to change. You testified about attending the first public pride event in Trinidad and Tobago in 2018 and how you spontaneously decided to stand up and speak publicly about trans rights specifically. And then a newspaper reporter interviewed you and then published an article in which you were referred to incorrectly as a transwoman.

[11]   After this article was published and went live, you went online and realized that there were several hateful comments posted about you, many of which advocated for violence against you.

[12]   Your counsel initially asked for a postponement today to provide additional documents, which I decided ultimately was unnecessary, as I had sufficient evidence before me to accept your claim.

[13]   I have a copy of your birth certificate showing that you were born female with the name XXXX XXXX and I have a copy of your legal name changed documents, which were completed in 2017, when you turned XXXX. I also have a copy of a report from a XXXX in Canada, confirming that you suffer from various XXXX health issues, as well as XXXX XXXX and that letter indicated that you would be beginning hormone replacement therapy and that was in 2019. And so today, you testified that you’ve now been on testosterone for two (2) years and will be undergoing a XXXX soon.

[14]   And so, based on the documents that I have and your credible testimony today, I accept your allegations. I believe that you are a transgender male and that you’re telling the truth about everything that has happened to you.

[15]   And so, I must assess whether your allegations forma well-founded fear of persecution and in this case, I find that there is a Nexus to the Convention ground of membership in a particular social group, namely a sexual orientation.

[16]   I accept that you have established a subjective fear of returning to Trinidad and Tobago, where you feel that you would not be able to live openly and safely as a gay trans man.

[17]   You testified that you fear for your mental health, if you had to return and essentially, 1ive in hiding out of fear. You testified to feeling suicidal on many occasions and that conversely in Canada, you feel more accepted and that it feels like home.

[18]   I have reviewed the objective evidence and I find that it does support your allegations and I’ll just go through a few of those documents.

[19]   And so, according to document 2.5 of the National Documentation Package, this is a document called Human Rights in the Americas, it states that a landmark judgement from a high court in 2018, decriminalized sexual activity between consenting adults of the same-sex. However, the government appealed the judgement, saying that it intends to have its voice heard by the country’s highest appellate court, the Judicial Committee of the Privy Council in the UK. To date, there remains no legal protection against discrimination based on sexual orientation or gender identity. In the NGO coalition advocating for inclusion of sexual orientation, Trinidad and Tobago received reports of incidents of discrimination and violence directed towards LGBTI people and this is also confirmed in the U.S. Department of State report, document 2.1, which confirms that as of November, the government’s appeal of the court ruling was still pending.

[20]   I’ve also reviewed the most recent Freedom House report at document 2.3, which states that discrimination against LGBTI people is widespread, affecting their ability to fully engage in political and electoral processes. Human rights groups have criticized the government’s unwillingness to address discrimination and violence against the LGBTI community.

[21] I’ve also reviewed a Response to Information report that was prepared by the Board. It states that gay pride has technically been celebrated in Trinidad and Tobago for almost 20 years. However, these celebrations were neither outdoors nor public until very recently. According to the same source, there are numerous gay events within Carnival masquerade, but they are not publicly advertised. The report further states that sexual minorities faced discrimination in employment, education and housing. The report outlines cases of homophobic discrimination of youths within the education system, including youths being subjected to name calling and verbal abuse by schoolmates, teacher-led bullying, physical assaults and in some cases, suggested reparative therapy by school officials and basically a daily pattern of harassment. Sources indicate that the country’s Constitution Reform Commission acknowledged that there is a high level of violence and abuse against LGBTI people and that they have faced bullying, physical assaults, verbal assaults and abuse in their homes and schools and by the general public.

[22]   And so, after reviewing the evidence, I find that while the court’s ruling was clearly a step forward for the LGBTI community in Trinidad and Tobago, the pending appeal by the government, not only indicates that the ruling may not have any impact in practice, it also raises doubts as to the durability and overall effectiveness of this change in law.

[23]   In this case, the claimant cannot live openly as a transgender male without risk of discrimination with threats of violence.

[24]   Hormone replacement therapy is not available, and you cannot change your gender marker on your passport or other identification, which essentially forces you to identify as a female incorrectly.

[25]   And so, I find that the accumulative incidents of discrimination, coupled with the threats to your life and the inability to live openly, do amount to persecution.

[26]   Based on the totality of the evidence, I find that you would face a serious possibility of persecution in Trinidad and Tobago, due to your sexual orientation.

[27]   I have reviewed whether there would be any state protection available to you and I find that it would not be forthcoming.

[28]   For example, Amnesty International reports on the failure of the government to confront the issues of violence against LGBTI people. It refers to the failure to produce anywhere recommendations on achieving equality or preventing discrimination, despite acknowledging the high level of violence and abuse against LGBTI people in the country.

[29]   The Equal Opportunity Act protects against discrimination in areas of education and employment, but this does not extend protection to sexual minorities.

[30]   Many sources report that sexual minorities who have been victims of violence are hesitant to report incidents to police, out of fear of negative response by police and court officials.

[31]   I also note Chairperson’s Guideline 9, which indicates that the decriminalization of same-sex relations or sexual or gender non-conforming behaviours or the introduction to a new law, programmer (ph) of the government, which is designed to improve a situation, individuals with diverse sexual orientation need to be carefully assessed in order to determine whether state protection is adequate at the operational level, as a result of these new laws.

[32]   And so, as a decision maker, I need to examine the degree of the actual implementation of this law, its effectiveness and its credibility, in light of how state actors and general society continues to treat LGBTI individuals.

[33]   I find in this case there is insufficient evidence that the recent material change in the law translates into adequate state protection of LGBTI individuals, given the substantial evidence of police corruption and the unwillingness of authorities to address the protection needs of this community and this is particularly the case, given the government’s own appeal of the court ruling.

[34]   And so, I find that in this case, the claimant has rebutted the presumption of state protection.

[35]   Finally, I find there is no internal flight alternative available, given the serious possibility of persecution throughout Trinidad and Tobago for LGBTI persons.

[36]   And so, in conclusion, I find that the claimant is a Convention refugee pursuant to section 96 of the Act, and the Immigration and Refugee Board therefore accepts his claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Mexico

2021 RLLR 13

Citation: 2021 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: June 17, 2021
Panel: Jodie Schmalzbauer
Counsel for the Claimant(s): Mary Jane Campigotto
Country: Mexico
RPD Number: VC1-02663
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000044-000050

REASONS FOR DECISION

INTRODUCTION

[1]     This is the decision of the Refugee Protection Division (“RPD”) in the claim of XXXX XXXX XXXXA.K.A XXXX XXXX XXXX (the “claimant”) as a citizen of Mexico who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).1

[2]     The panel has applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE) to understand cases involving sexual orientation, gender identity and expression, and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms.2

DETERMINATION

[3]     The panel finds that the claimant is a Convention refugee, as she does have a well-founded fear of persecution related to a Convention ground in Mexico.

ALLEGATIONS

[4]     The following is a brief synopsis of the allegations that the claimant put forth in the Basis of Claim (BOC) form and narrative.3 The claimant submits that she will continue to face serious discriminations amounting to persecution for her gender identity in Mexico.

[5]     The claimant submits that she has identified as a woman since her childhood. Her family had done their best when it came at first to “treating” the claimant with hormones to later supporting her, for who she is. The claimant has campaigned since her youth to educate and promote acceptance among children and the community. She continued studying education to support her passion in anti­bullying and inclusivity. The claimant decided to leave Mexico after her father had passed away, losing both of her parents, who were here “pillars” of support helped her to decide to move to a country that would accept her and let her live a peaceful life.

ANALYSIS

Identity/Country of Reference Mexico

[6]     The panel is satisfied on a balance of probabilities, in the claimant’s identity and his citizenship, considering the certified copy of Mexico passport on file.4

Well-Founded Fear of Persecution

[7]     The claimant fears persecution due to her membership in a particular social group, due to her sexual orientation and gender identity. The duty of this panel is to find if there is sufficient credible or trustworthy evidence to determine that there is more than a mere possibility that this claimant would be persecuted if she returned to Mexico.

[8]     The claimant testified in a very genuine, straightforward, emotional, and unassuming manner. She was passionate about her educational activities, she provided photos and testimony about the events in question.5 She spoke about her challenges and violence directed towards due to her gender identity. She submitted support letters, attesting to her personal history and her socially non­conforming gender identity.

[9]     According the Repot on Human Rights Conditions of Transgender Women:

Despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their gender identity and expression. Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly transgender women.6

Negative attitudes towards the LGBT community remain very common in Mexico.165 Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.7

[10]   Transgender women lack adequate healthcare in Mexico, many hide their transgender status to avoid hostility or threats from medical practitioners. There almost no availability of medical care for gender transition.8 The lack of positive protections on the basis of gender identity, leave transgender women vulnerable to employment discrimination. Few transgender women are able to sufficiently support themselves and end up resorting to sex work to survive, which results in yet more violence.9 Given the significant infringements upon the basic human rights of transgender women, the panel finds that evidence before it, establishes a systemic and pervasive treatment of transgender women, amounts to persecution.

[11]   Given the claimant’s credibility as to her gender identity and the unequivocal country condition evidence of the treatment of individuals similar to the claimant, the panel finds the claimant would face more than a serious possibility of persecution if she were to return to Mexico.

State Protection

[12]   State protection would not be reasonably forthcoming in this particular case. The panel has reviewed the country condition evidence of the situation of those with diverse SOGIE in Mexico and does recognize the Federal and some state protections in place.

[13]   In response to the growing public profile of sexual and gender minorities:

Some Mexican communities have explicitly targeted transgender women by enacting morality laws that criminalize “cross-dressing.” Local transgender women reported a dramatic increase in police harassment following the law’s passage. Transgender women stopped by the police frequently faced extortion; “[t]he police used… the threat of arrest… to secure money or sexual favors from [transgender women]. The passage of morality laws like those in Tecate criminalizes transgender women and sanctions police harassment and private discrimination. The passage and retention of these laws reflect continued societal hostility towards transgender people.10

[14]   Persons seeking protection from harassment and violence are routinely re-victimized by police their claims downplayed. Regular harassment by police is also reported. LGBTIQ+ individuals are frequently beaten, mocked, and forced to pay bribes in order to escape custody and in the recent years, have also reported physical assaults against them.11

[15]   Despite the existence of these formal protections around sexual orientation, advocates maintain that these laws have not prevented discrimination and violence. LGBT individuals face many barriers in exercising their rights under the antidiscrimination statutes. LGBT individuals who experience discrimination may be afraid to disclose their sexual orientation or gender identity to a federal agency and may be concerned about potential retaliation by public officials. This concern is especially relevant since the law does not have a clear enforcement mechanism or any provision that protects against retaliation.12

[16]   Considering the lack of any positive respect for the rights of LGBTIQ+ persons, and numerous reports of mistreatment of those persons with diverse SOGIE by law enforcement in evidence, the panel finds there is clear and convincing evidence that claimant, or persons similarly situated to the claimant, are unable to obtain adequate state protection.

Internal Flight Alternative

[17]   The first prong of this assessment is to determine on a balance of probabilities if there is a serious possibility of persecution in the internal flight alternative (IFA) or no risk to life, cruel and unusual treatment or punishment or danger of torture in the IFA.

[18]   The situation for individuals with diverse SOGIE is prevalent throughout Mexico. Although there are support groups in the larger centers in particular Mexico City, they have little impact in assisting members from violence or harassment. Negative attitudes towards the LGBT community remain very common in Mexico. Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.13

[19]   Although Mexico City, has been making serious efforts in assisting transgender women, including in documentation and identity changes, Mexico City also leads Mexico in the number or missing and murdered transgender women in Mexico. Considering, the evidence before this panel, there is no place in Mexico where the claimant would not face a serious possibility of persecution.

CONCLUSION

[20]   For the foregoing reasons, the panel concludes that the claimant is a Convention refugee and therefore accepts her claim. As the claim is accepted pursuant to Section 96 of the Act, there is no need to assess the claim made under Section 97(1)(b).

(signed) J. Schmalzbauer

June 17, 2021

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.

2 Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), May 1, 2017.

3 Exhibit 2.

4 Exhibit 1.

5 Exhibit 4.

6 National Documentation Package, Mexico, 30 April 2021, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016.

7  National Documentation Package, Mexico, 30 April 2021, tab 6.3.

8  National Documentation Package, Mexico, 30 April 2021, tab 6.3.

9 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

10 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

11 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

12 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

13 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

Categories
All Countries Mexico

2021 RLLR 13

Citation: 2021 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: June 17, 2021
Panel: Jodie Schmalzbauer
Counsel for the Claimant(s): Mary Jane Campigotto
Country: Mexico
RPD Number: VC1-02663
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000044-000050

REASONS FOR DECISION

INTRODUCTION

[1]     This is the decision of the Refugee Protection Division (“RPD”) in the claim of XXXX XXXX XXXXA.K.A XXXX XXXX XXXX (the “claimant”) as a citizen of Mexico who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).1

[2]     The panel has applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE) to understand cases involving sexual orientation, gender identity and expression, and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms.2

DETERMINATION

[3]     The panel finds that the claimant is a Convention refugee, as she does have a well-founded fear of persecution related to a Convention ground in Mexico.

ALLEGATIONS

[4]     The following is a brief synopsis of the allegations that the claimant put forth in the Basis of Claim (BOC) form and narrative.3 The claimant submits that she will continue to face serious discriminations amounting to persecution for her gender identity in Mexico.

[5]     The claimant submits that she has identified as a woman since her childhood. Her family had done their best when it came at first to “treating” the claimant with hormones to later supporting her, for who she is. The claimant has campaigned since her youth to educate and promote acceptance among children and the community. She continued studying education to support her passion in anti­bullying and inclusivity. The claimant decided to leave Mexico after her father had passed away, losing both of her parents, who were here “pillars” of support helped her to decide to move to a country that would accept her and let her live a peaceful life.

ANALYSIS

Identity/Country of Reference Mexico

[6]     The panel is satisfied on a balance of probabilities, in the claimant’s identity and his citizenship, considering the certified copy of Mexico passport on file.4

Well-Founded Fear of Persecution

[7]     The claimant fears persecution due to her membership in a particular social group, due to her sexual orientation and gender identity. The duty of this panel is to find if there is sufficient credible or trustworthy evidence to determine that there is more than a mere possibility that this claimant would be persecuted if she returned to Mexico.

[8]     The claimant testified in a very genuine, straightforward, emotional, and unassuming manner. She was passionate about her educational activities, she provided photos and testimony about the events in question.5 She spoke about her challenges and violence directed towards due to her gender identity. She submitted support letters, attesting to her personal history and her socially non­conforming gender identity.

[9]     According the Repot on Human Rights Conditions of Transgender Women:

Despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their gender identity and expression. Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly transgender women.6

Negative attitudes towards the LGBT community remain very common in Mexico.165 Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.7

[10]   Transgender women lack adequate healthcare in Mexico, many hide their transgender status to avoid hostility or threats from medical practitioners. There almost no availability of medical care for gender transition.8 The lack of positive protections on the basis of gender identity, leave transgender women vulnerable to employment discrimination. Few transgender women are able to sufficiently support themselves and end up resorting to sex work to survive, which results in yet more violence.9 Given the significant infringements upon the basic human rights of transgender women, the panel finds that evidence before it, establishes a systemic and pervasive treatment of transgender women, amounts to persecution.

[11]   Given the claimant’s credibility as to her gender identity and the unequivocal country condition evidence of the treatment of individuals similar to the claimant, the panel finds the claimant would face more than a serious possibility of persecution if she were to return to Mexico.

State Protection

[12]   State protection would not be reasonably forthcoming in this particular case. The panel has reviewed the country condition evidence of the situation of those with diverse SOGIE in Mexico and does recognize the Federal and some state protections in place.

[13]   In response to the growing public profile of sexual and gender minorities:

Some Mexican communities have explicitly targeted transgender women by enacting morality laws that criminalize “cross-dressing.” Local transgender women reported a dramatic increase in police harassment following the law’s passage. Transgender women stopped by the police frequently faced extortion; “[t]he police used… the threat of arrest… to secure money or sexual favors from [transgender women]. The passage of morality laws like those in Tecate criminalizes transgender women and sanctions police harassment and private discrimination. The passage and retention of these laws reflect continued societal hostility towards transgender people.10

[14]   Persons seeking protection from harassment and violence are routinely re-victimized by police their claims downplayed. Regular harassment by police is also reported. LGBTIQ+ individuals are frequently beaten, mocked, and forced to pay bribes in order to escape custody and in the recent years, have also reported physical assaults against them.11

[15]   Despite the existence of these formal protections around sexual orientation, advocates maintain that these laws have not prevented discrimination and violence. LGBT individuals face many barriers in exercising their rights under the antidiscrimination statutes. LGBT individuals who experience discrimination may be afraid to disclose their sexual orientation or gender identity to a federal agency and may be concerned about potential retaliation by public officials. This concern is especially relevant since the law does not have a clear enforcement mechanism or any provision that protects against retaliation.12

[16]   Considering the lack of any positive respect for the rights of LGBTIQ+ persons, and numerous reports of mistreatment of those persons with diverse SOGIE by law enforcement in evidence, the panel finds there is clear and convincing evidence that claimant, or persons similarly situated to the claimant, are unable to obtain adequate state protection.

Internal Flight Alternative

[17]   The first prong of this assessment is to determine on a balance of probabilities if there is a serious possibility of persecution in the internal flight alternative (IFA) or no risk to life, cruel and unusual treatment or punishment or danger of torture in the IFA.

[18]   The situation for individuals with diverse SOGIE is prevalent throughout Mexico. Although there are support groups in the larger centers in particular Mexico City, they have little impact in assisting members from violence or harassment. Negative attitudes towards the LGBT community remain very common in Mexico. Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.13

[19]   Although Mexico City, has been making serious efforts in assisting transgender women, including in documentation and identity changes, Mexico City also leads Mexico in the number or missing and murdered transgender women in Mexico. Considering, the evidence before this panel, there is no place in Mexico where the claimant would not face a serious possibility of persecution.

CONCLUSION

[20]   For the foregoing reasons, the panel concludes that the claimant is a Convention refugee and therefore accepts her claim. As the claim is accepted pursuant to Section 96 of the Act, there is no need to assess the claim made under Section 97(1)(b).

(signed) J. Schmalzbauer

June 17, 2021

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.

2 Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), May 1, 2017.

3 Exhibit 2.

4 Exhibit 1.

5 Exhibit 4.

6 National Documentation Package, Mexico, 30 April 2021, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016.

7  National Documentation Package, Mexico, 30 April 2021, tab 6.3.

8  National Documentation Package, Mexico, 30 April 2021, tab 6.3.

9 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

10 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

11 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

12 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

13 National Documentation Package, Mexico, 30 April 2021, tab 6.3.

Categories
All Countries Pakistan

2021 RLLR 12

Citation: 2021 RLLR 12
Tribunal: Refugee Protection Division
Date of Decision: November 16, 2021
Panel: J. Schmalzbauer
Counsel for the Claimant(s): Aiden Connor Campbell
Country: Pakistan
RPD Number: VC1-03717
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000038-000043

REASONS FOR DECISION

INTRODUCTION

[1]     This is the decision of the Refugee Protection Division (“RPD”) in the claim of XXXX XXXXA.K.A XXXX XXXX (the “claimant”) as a citizen of Pakistan who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act“).1

[2]     The panel, has taken into consideration and applied the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, to address the issues that are critical to women refugee claimants, including the recognition of women being a particular social group.2

[3]     The panel has applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE) as this case involves sexual orientation, gender identity and expression, and the harm individuals may face due to their non­ conformity with socially accepted gender norms.3

DETERMINATION

[4]     The panel finds that the claimant is a Convention refugee, as she does have a well-founded fear of persecution due to her membership in a particular social group.

ALLEGATIONS

[5]     The following is a brief synopsis of the allegations that the claimant put forth in the Basis of Claim (BOC) form and narrative.4 The claimant is a twenty-six-year-old citizen of Pakistan who is claiming refugee due to her risk of persecution in Pakistan due to their gender identity. The claimant also fears persecution due to her agnosticism.

[6]     The claimant submits in her allegations of her conflict of wanting live as a woman but being unable to do so in Pakistan. She also submits her lack of adherence and belief in Islam was known by her family but unacknowledged and unspoken about.

[7]     The claimant left Pakistan in XXXX 2016 to study in Canada. During her time in school in Vancouver the claimant became more open bout her gender and started coming out to friends an living as XXXX XXXX. In 2019 the claimant told her parents, but they were not supportive and reuse to accept her gender identity and has not had further communication with her father since.

[8]     The claimant now lives opening on social media but is a self-described introvert that infrequently socializes and has few friends in Vancouver. The claimant filed for protection and filed and signed her BOC September 2020.

ANALYSIS

Identity/Country of Reference Pakistan

[9]     The panel is satisfied on a balance of probabilities, in the claimant’s identity and citizenship, considering the certified copy of the current Pakistan passport.5

Well-Founded Fear of Persecution

[10]   The claimant fears persecution due to her membership in a particular social group, as a person with non-conforming gender identity. The duty of this panel is to find if there is sufficient credible or trustworthy evidence to determine that there is more than a mere possibility that this claimant would be persecuted.

[11]   LGBTIQ+ is an umbrella term for the community of lesbian, homosexual, bisexual, non­ heterosexual, transgender, non-binary, intersex, and queer people. The rights of LGBTIQ+ people are the same as human rights. There is not a single right that is inherent to transgender persons the issue lies in the ability to enjoy those rights freely and fully. The inequality of opportunities and access can manifest themselves at different levels, i.e., legal restrictions and social practices.

[12]   The country condition evidence before this panel, report that transgender woman, face discrimination in housing, education, medical care. Transgender people face harassment, mistreatment, and exclusion from society. Numerous incidents of violence, honour crimes and sexual violence is experienced by transgender people in Pakistan. Although authorities recognize transgender people including documenting individuals as a third gender as requested, there is little to no evidence that this recognition has diminished discrimination in society for this minority group.6

[13]   The panel finds, the country condition evidence clearly establishes that in Pakistan the basic human rights of persons of diverse gender identities are disregarded at all levels of society. The targeting of individuals even believed to be gay is an accepted practice by society and the state, given the increasing levels of violence and the impunity given to the perpetrators by the state. The panel further find that LBGTIQ+ persons, because of the current situation in Pakistan, are unable to live openly without fear of reprisals from the general public or the state. Persons of diverse gender identities have substantive violations against their right to life (Article 6), their right to prohibition of torture and cruelty, and inhuman or degrading treatment or punishment (Article 7), their right to liberty and security of the person (Article 9), their right to freedom from discrimination (Articles 2 and 26) and their right to freedom of assembly and association (Articles 21 and 22).7 Given the significant infringements upon the basic human rights of these individuals, the panel finds this systemic and pervasive treatment of sexual minorities in Pakistan does amount to persecution.

[14]   The panel accepts the claimant’s personal identity as a transgender woman, who lives openly here in Canada and has been open with her friends and family. The panel further notes, the claimant is outspoken with her anti-religious and gender opinions. Given the claimant’s credibility as to her identity, and the unequivocal country condition evidence of the treatment of individuals similar to the claimant, the panel finds the claimant would face more than a serious possibility of persecution.

State Protection

[15]   The panel must determine whether the claimant has access to state protection. The objective evidence before the panel is the Pakistan authorities routinely – intimidate, harass, and mock transgender complainants. There are reports of persons being illegally arrested by the police using provisions of the law that criminalize same sex relationships and they have been charged with cases related to defying the order of nature (unnatural offence against the order of nature), public nascence [sic], unnatural offences and indecent assault.8It is reported in the evidence that sexual minorities are discriminated and victimized by police.9 On the whole, the panel finds that in the case of the claimant it would be objectively unreasonable for her to approach authorities for her protection and therefore state protection is sufficiently rebutted in this case.

Internal Flight Alternative

[16]   The evidence before this panel is that discrimination and persecution of transgender persons is pervasive throughout Pakistan. Although pocket communities exist in large centres10, the panel finds these are nothing more than ghettoization of this vulnerable minority community. Considering the country condition evidence there is nowhere in Pakistan where the claimant could relocate and not continue to face more than a mere possibility of persecution for her identity, therefore the panel finds that there is no viable internal flight alternative for the claimant.

CONCLUSION

[17]   For the foregoing reasons, the panel concludes that the claimant is a Convention refugee and therefore accepts her claim. As the claim is accepted pursuant to Section 96 of the Act, there is no need to assess the claim made under Section 97(1)(b).

(signed) J. Schmalzbauer

November 16, 2021

1 Immigration and Refugee Protection Act. S.C. 2001, c. 27.

2 IRB Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

Ottawa, Canada, March 1993, updated November 1996.

2 Exhibit 2.

3 IRB Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), Ottawa, Canada, May 1, 2017.

4 Exhibit 2.

5 Exhibit 1.

6 National Documentation Package, Pakistan, 16 April 2021, tab 6.1: Treatment of sexual and gender minorities by society and authorities; state protection and support services available (2017-January 2019). Immigration and Refugee Board of Canada. 17 January 2019. PAK 106219.E.

7 United Nations (UN) General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

8 National Documentation Package, Pakistan, 16 April 2021, tab 6.1.

9 National Documentation Package, Pakistan, 16 April 2021, tab 2.1: Pakistan. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021.

10 National Documentation Package, Pakistan, 16 April 2021, tab 6.1.

Categories
All Countries Iran

2021 RLLR 11

Citation: 2021 RLLR 11
Tribunal: Refugee Protection Division
Date of Decision: October 1, 2021
Panel: Osehise Odigie, Megan Kammerer, Andriy Rak
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Iran
RPD Number: VC1-04075
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000034-000037

Decision

[1]     MEMBER: So, we have had time to go through your documents and to review your hearing, and we have reached a positive decision. I would like to give you the option of how you want to hear my reasons for decision. Would you prefer that I read everything, and Mister Interpreter would summarize for you? Or would you prefer a line-by-line interpretation? Or would you also prefer that I read everything in English, and then you can confer at the end of the hearing with your counsel and interpreter?

[2]     CLAIMANT: The last option, I agree with that one.

[3]     MEMBER: So, I read everything out in English, and then when we are done, you confer with Mister Interpreter and your counsel, correct? Okay, so I will proceed to read the Panel’s reason for decisions today. So, this is a decision for the claimant, XXXX XXXX, who also goes by the name of XXXX (ph) XXXX XXXX You are claiming to be a citizen of Iran and claiming refugee protection, pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act. You identify as a transgender man, and prefer the ‘he’, ‘him’ pronouns, as well as the male name, XXXX, rather than your legal first name, XXXX. Although your identity documentation reflects your birth as a female, your preferred pronouns will be used in this decision.

[4]     In rendering in this decision, the Panel has applied the Chairperson’s Guidelines on sexual orientation and gender identity, and the Chairperson’s Guideline on women refugee claimants. The Panel has considered your testimony and other evidence in the case, and it is ready to render the decision orally.

Determination

[5]     The Panel finds that you are a Conventional refugee, pursuant to s. 96 of the IRPA, as there exists a serious possibility of persecution, should you return to Iran, on account of your membership of a particular social group, specifically as a transgender man in Iran. You alleged that you are a citizen of Iran, you self-identify as a transgender. You were born female, however, you allege that you have never associated with being female, and that, at first, you identified as being transgender when you turned XXXX. You also stated that in your early years, in your teenage years, you were attracted to a girl who was older than you, and that was your first recollection of your friendship. And in middle school, you were taught religion and life, where you were taught that feelings for the same sex is haram, and punishable by death. You further alleged that your family was in denial about your agenda, and this made you feel very hot, and you stopped making eye contact with people in school, but the shaming and hostility never disappeared. You allege that you had to identify as a woman in order to obtain employment in Iran, and that you have also lost jobs because of your failure to adhere to gender norms. You state that you have been arrested twice, and you are not safe in Iran.

[6]     You further allege that after graduation, you were determined on leaving Iran, and you immediately started studying English and taking the IELT’s courses. You started searching and applying to different colleges in Canada, and after getting admitted to XXXX College in XXXX of 2019, you applied for a study permit. And in XXXX of 2019, you were refused. In XXXX of 2020, you received your Canadian student visa. You allege that if you return to Iran, you would not be able to exercise your basic human rights, as you would not be able to live life as you want, or dress as you want. You fear you be stoned or killed in Iran. Your persona) identity as a citizen of Iran has been established by your testimony and the Iranian passport with Canadian visa. The Panel finds that on a balance of probabilities that your identity and country of reference have been established, and the Panel is satisfied of your identity and that you are a citizen of Iran. The Panel has also considered this claim under s. 96 of the IRPA. I will conclude that the risk you face constitutes persecution, based on at least one of the grounds prescribed in the Refugee Convention. Specifically, your membership in a particular social group as a transgender man in Iran.

[7]     In terms of credibility, you gave your evidence in a clear and direct manner. At the hearing, you testified that you realize that you were different since you were a child but learned a lot about being a transgender male at XXXX, when you had a teammate who was transgender. You spoke about your experiences growing up in Iran and how you first realized that you were attracted to XXXX (ph), who you met at the university dormitory and became your roommate. You testified that you had a relationship with her for four years, and lived together at the dormitory, and later in a rented apartment. You testified to knowing a few other transgender people in your country, including your best friend, XXXX (ph). You further testified that you had to move away from the dormitory in order to prevent harm when XXXX was threatened. You testified that Iran issues trans certificate to individuals in certain circumstances. When asked if you attempted to procure one, you stated “No”, as that would require permission from your father, who did not like the idea of you cutting your hair and would not have agreed to permission to procure the certificate. You testified that since coming to Canada, you have been involved in the LGBTQ community, particularly with the 519 LGBTQ community, where you have participated in programs organized, and have been a part of resume writing workshop, and you further testified that you have started the process of gender reassignment by taking testosterone. You further stated that you feel free in Canada and do not feel at risk in Canada, as there is freedom for members of the LGBTQ community. You also submitted evidence to corroborate your claim. This includes letters of support from XXXX XXXX (ph), XXXX XXXX (ph), XXXX (ph) XXXX (ph), and XXXX (ph). You also included picture of LGBTQ physical activity program event by 519.

[8]     There were no material inconsistencies or contradictions within your evidence that were not reasonably explained, or that undermined your credibility. Based on the presumption of truthfulness, your consistent testimony and the corroborative evidence provided by you in this claim, the Panel accepts you as transgender. The Panel finds that you have a well-founded fear of persecution, based on your sexual orientation as a transgender male. You were arrested twice when you were XXXX, and you father had to come and release you, and also in 2017, when you had to pay a bribe to be released. You were forced to hide your sexual orientation and your relationship with XXXX, and you took many precautions to keep your yourself out of harm’s way. The Panel therefore finds that your subjective fear is established by your credible testimony, and the Panel believes what you have alleged on a balance of probabilities. Given that there are no serious credibility issues with respect to your allegation, coupled with the consistent manner you have testified, as well as documentary evidence set out below, the Panel finds that you have established a prospective risk of being subjected to detention, imprisonment, or other actions, for charges related to your status as a transgender man in Iran.

[9]     The allegation of risk is corroborated by the following document in the National Documentation Package, NDP for Iran, dated April of 2021. The objective evidence demonstrates that individuals who are transgender face treatment in Iran that amounts to persecution. NDP 6.6 states that a report produced by Outright Action International in October, 2016, titled, “Being Transgender in Iran” stated the following. “The Iranian government officially uses the term ‘gender identity disorder’ to describe trans people. Although the medicalization of issues related to gender identity has allowed for some legal recognition for members of the trans community, it has also reinforced the stigma rooted in the notion that trans individuals suffer from psychological and sexual disorder and require treatment to become ‘normal’. Since the state and many members of the medical community see being trans as a disease, they regard trans experience as a condition to be ‘cured’ through medical transitional processes such as hormone replacement, therapy, and surgery. Iranian law allows for the legal recognition of trans individuals’ gender identity; however, such recognition is only granted to individuals officially diagnosed with GID, and upon their successful completion of a long process of legal and medical transition. The government’s position has led some observers to conclude that Iran is progressive on trans rights. While there are positive aspects to the government’s policies, trans Iranians continue to face serious discrimination and abuse by both law and practice, and they are rarely treated as equal members of the society. Iranian law fails to recognize the gender identity of any individual who is not granted access, does not wish, or cannot afford to pursue the GCS. This deprives many of legal recognition and render them particularly vulnerable to harassment and discrimination.”

[10]   NDP 6.5 further states, “As a result, trans individuals in Iran who do not wish to pursue medical transition processes, who cannot afford such processes, or who wish to pursue some forms of medical gender transition but not others, are wholly deprived of legal identity recognition and face severe barriers to maintaining and pursuing education, to accessing housing and employment, and to moving freely and safely through society. The law does not recognize such trans individuals, nor does it provide space or legal recognition for individuals who identify across or outside of the gender binary.” In this case, you testified that you were not able to pursue a medical transition process in Iran, because you were not able to obtain the consent of your father. You are thus prohibited from living openly as a transgendered person in Iran and are subject to risks set out above. On this basis, and as such, the Panel finds that there is a serious possibility of persecution, should you be returned to Iran. The Panel therefore finds that you have established, on a balance of probabilities, a subjective fear of persecution in Iran due to your membership to a particular social group, namely as a transgendered man in Iran. In this case, in terms of state protection, the agents of the persecution is the state, as the persecution you will face, should you return to Iran, is at the hands of the authorities. This is evidenced in your past encounters with the police, twice at 16, and also in 2017. Accordingly, the Panel finds that there is no state protection for you.

[11]   The Panel also has considered whether there is a viable internal flight alternative for you. On the evidence before the Panel and given that the agent of persecution is the state, and the state has effective control over the entire country, the Panel finds that there is a serious possibility of persecution throughout Iran, and the Panel finds that there is no viable internal flight alternative for you in Iran.

[12]   In conclusion, based on the totality of evidence, including your narrative, the testimony, and supporting documents, the Panel finds you to be a Conventional refugee and therefore accepts your claim. Thank you very much. Carrie (ph), any words from you?

[13]   UNIDENTIFIED SPEAKER: That concludes our hearing here today. I want to thank you very much for participating in this hearing, and I want to welcome you to Canada. So, what we are going to do now is we are going to stop the recording, and then we will disconnect the proceedings.

——————–REASONS CONCLUDED ——————–

Categories
All Countries India

2021 RLLR 10

Citation: 2021 RLLR 10
Tribunal: Refugee Protection Division
Date of Decision: November 23, 2021
Panel: Lesley Stalker
Counsel for the Claimant(s): Kerry Molitor
Country: India
RPD Number: VC1-05726
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000027-000033

DECISION

[1]     MEMBER: This is a Bench Decision in the claim for refugee protection of XXXX XXXX. You are a citizen of India and are claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.

Allegations

[2]     Your claim is based on your sexual orientation. You fear persecution in India at the hands of your family, the extended Muslim community and the Indian society and police at large because of your sexual orientation or your sexual identity. Given the nature of your claim, I have considered and applied the IRB’s Chairperson’s Guideline 9 on sexual orientation and gender identity and expression, these are commonly known as the SOGIE guidelines.

Determination

[3]     I find that you face a serious risk of persecution in India because of your sexual orientation. My reasons are as follows.

ANALYSIS

Identity

[4]     I am satisfied as to your identity on the basis of the various identity documents that you have filed. These include your passport, your Aadhar or identity card, your voter card as well as other identity documents.

Nexus

[5]     As your claim is linked to your sexual identity, I find that the harm you fear has a nexus to the convention ground of particular social group. I therefore assessed your claim under Section 96 of the Act.

Credibility

[6]     The next question is whether I find your story to be credible and I do. You have provided a detailed Basis of Claim narrative which explained how you came to realize that you were not female, the sex which had been assigned to you at birth but rather were male. This created confusion for you as you tried to figure out who you were. Your cousins suggested that perhaps you were lesbian but you disagreed. You felt that you were a boy who was in a girl’s body. You could not turn to your parents or siblings for guidance or support. Your parents are devout Muslims and very conservative in their beliefs and in their cultural practices.

[7]     You described… you described your father’s efforts to control your behavior with violence, hitting you with bricks, and even administering electric shocks to punish behaviors that he deemed were inappropriate. You were able to confide in one cousin in particular, XXXX (ph) and in the woman you loved, XXXX. You described the pain you experienced when XXXX was forced to marry another man. You could never publicly declare your love for her because you were in the eyes of society a woman.

[8]     Moreover, your families would never have accepted the marriage as your family was Muslim and hers was Hindu. There were a number of times in the hearing when you became quite emotional. You described having to live a suffocated life and being trapped in a body that was not yours. You described your ongoing struggle with gender dysphoria and the pain of not being able to openly tell your family who you are. Your family expected you as a woman to behave in a certain way. They demanded that you wear the burqa as do you mother and your sisters. When you were 20 you told them that you were no longer willing to wear the burqa but this resulted in such conflict that at times you wore the burqa and took it off after leaving the home.

[9]     Your BOC and testimony reflect strong Indian cultural values relating the interaction between individuals and their families. When I asked you why you did not walk away from your family when they refused to respect your choices, you said, where would I go. Your BOC describes an incident in which you remained in the doorstep of your home throughout the night after your father had locked you out. And when I asked you why you did not simply go elsewhere, you said that you did not dare expose your parents to the shame of the rift between you and them.

[10]   When asked whether you know any transmen who were living openly in India, you said you know of two. You said their situation was somewhat unique. Their families are supportive of them and their assistance has enabled the men to survive openly. That is not the case for most transmen who did not have the support of their families. You provided a number of documents to corroborate your claim. These include, one, the detailed XXXX assessment from XXXX XXXX XXXX who diagnosed you as suffering from persistent XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX reports that you showed clinical degree of XXXX associated with memories of India and says that you are at risk of a complete XXXX collapse and suicide should you be required to return to India. Two, a letter from the ASAAP, a Toronto-based organization which assists LGBTQ persons from South Asia. This letter describes you as a valued member of their community and records your participation in various activities and services offered by the organization.

[11]   Three, a letter from XXXX, the woman with whom you had a relationship in India. XXXX says that it was dangerous for her to write the letter but felt it important to do so. She said she has known you for close to 15 years. She described you as having “a husky voice and manly personality” and said that you have always been drawn to females in a sexual manner. She says that you told her that you were a transman, a concept which was completely unknown to her. She says that the concept of transsexuality is “new in India and is regarded as a crime, disease or abnormality.” She says that your family are very religious and traditional and could never accept that you are a man who needs to change his body.

[12]   Four, a letter from your cousin XXXX (ph), who says that you were very close to each other from childhood on. XXXX (ph) says that even as a child you behaved as a boy. Neither of you was familiar with the concept of trans males at that time, but it was not a surprise to him when you told him you were in fact a boy trapped in a girl’s body. He also confirms that your family is extremely traditional and would never accept that you are not satisfied with the body that was given to you by god. And finally, you provided a letter from XXXX, a friend who is from a similar ethnic background and is like you transitioning from female to male here in Canada. Madura refers to your discussions about your gender dysphoria and your plans to begin your gender transition. I should not say to begin your gender transitions, your plans as to how you will transition.

[13]   Given your credible testimony and the corroborative documents, I accept your evidence about your gender identity. I further accept that you were born into a conservative Muslim family and that your family and the community from which you come hold very traditional notions of sex and gender. I further find that your father in particular has used violence against you and other members of the family to punish behaviors that he deems unacceptable.

Well-Founded Fear of Persecution and Subjective Fear

[14]   So having considered your evidence, I accept that you have a subjective fear of persecution including serious physical violence or death in India because of your sexual identity.

Objective Basis

[15]   The next question I must consider is whether there is an objective basis to your fear of harm, and after reviewing the country reports filed by your Counsel and the reports from the IRB’s National Documentation Package on India, I find there is. I will begin by referring to some of the changes in law affecting LGBTQ rights in India. In 2018, the Supreme Court of India decriminalized same-sex relationships and issued a judicial apology to the Indian LGBTQ community. This decision marked a significant step in the journey towards the full equality of LGBTQ persons.

[16]   Of particular relevance to the case or situation of trans persons, in 2014, the Indian Supreme Court affirmed the link between gender identity and other human rights. The court emphasized that it was the individual not the State who should determine one’s gender. This decision was followed by another in 2015, when the Delhi High Court wrote, “a transgender person’s sense or experience of gender is integral to their core personality and sense of being, in so far as I understand the law everyone has a fundamental right to be recognized in their chosen gender.” The decisions of the Indian courts are encouraging and they herald a chance in a society that has had difficulty accepting unusual or different approaches to sexuality and gender. The court decisions have had some effect.

[17]   The Immigration and Refugee Board Response to Information Request on the treatment of sexual minorities found at Tab 6.1 of the NDP says that after the decriminalization of same-sex sexual relations, there was a surge of pro-LGBTQ events and campaigns across the country. Most major cities saw Pride events taking place on a larger scale and an estimated 15000 people participated in the Queer Azadi Mumbai Pride Parade, and yet, LGBTQ persons continue to face severe discrimination and persecution on a day-to-day basis. The US Department of State report on Human Rights for 2020 found at Tab 2.1 of the NDP, says that LGBTI persons faced physical attacks, rape and blackmail as well as widespread societal discrimination and violence.

[18]   The report also say that transgender persons continue to face difficulty obtaining medical treatment and face particular challenges with the police. The IRB Response to Information Request at Tab 6.1 of the NDP similarly reports that social rejection of queer sexuality remains widespread. The RIR refers to a 2018 report of the International Commission of Jurists, the ICJ, who wrote that the “transgender community is continually harassed, stigmatized and abused by the police, judges, their family, and society.” The ICJ report of 2019 says that LGBTI persons face extensive rights violations in relation to housing and within the home.

[19]   This includes discrimination in the rental market, denial of housing, segregation into poorly resourced neighborhoods and violence and harassment from landlords, neighbors, friends, family and the police. The result is widespread homelessness. The ICJ also says that LGBTI persons, I am using the acronym the ICJ uses, says that the community faces discrimination and persecution at all stages of the employment process and this includes unequal access to educational opportunities, discrimination during recruitment and discriminatory and gender work conditions, Jack of job security and so forth. And this accords with your own account of having been fired by your employer when you revealed that you were a transman.

[20]   The ICJ report emphasizes the vulnerability of trans persons who as a result of systemic discrimination are often affectively segregated into localities that Jack basic amenities even if they have the economic capacity to afford better housing. In 2019, India’s central government passed a law which in theory is supposed to protect the rights of trans persons. However, the law has been widely condemned by human  rights organizations who note that the law denies to transgender people the right to identify their own gender or sex. Rather, trans persons must first apply for a “transgender certificate” from the district magistrate where they live. Once they have received this certificate they can then apply for a change in gender certificate.

[21]   This second certificate, the gender certificate signals to authorities that they should change the person’s gender to male or female. The problem is that the second step requires the person to provide proof of surgery issued by a hospital official to the district magistrate for a second evaluation, and the issuing official must be satisfied with the correctness of such a certificate. This puts an extraordinary amount of power with one government office to arbitrate who qualifies to be recognized as who they say they are. This process also coerces people into medical procedures that they might not want including surgery, and this is a fundamental rights violation condemned by both Indian and international jurisprudence.

[22]   There are other problems associated with the law including the fact that it guarantees trans persons the right to be free from discrimination but does not provide a definition of discrimination nor does it offer a mechanism by which trans person can enforce the rights which are on paper accorded to them. The Australian Department of Foreign Affairs and Trade report found at Tab 1.5 of the NDP says that LGBTI persons lack protection, have poor health and education (unintelligible 00:18:48) basic tolerance, abuse and violence on a day-to-day basis. The report also indicates that police still use nuisance laws to arrest gay men while there are some gay evenings or nights in a few bars, there are no truly safe spaces for gay and bisexual men.

[23]   The articles that I have referred to come from the Board’s National Documentation Package on India. You and your Counsel have also provided many articles which document the widespread and deep hostility towards the LGBTQ community generally and towards transmen in particular. The articles say that transmen are a minority within a society which is already… within a sector of society which is already marginalized. These men, transmen are confined to the shadows of society. The articles also record the murder of a number of trans persons who were assassinated in public settings because of their gender nonconformity. So far the reports to which I referred speak about the attitudes of Indian society generally. You have said that you also fear the reaction of your own family. Of course, your family belonged to Indian society at large but they are a particular group within that society.

[24]   They come from a conservative branch of Islam and would consider the notion of a trans man to be affront to themselves, to their community and to their god. When I asked you what your family would do if they learned that you are trans, you became very emotional. When you could speak you said you could not even think about it. You said that your dream is to be open with your family at some point but it is unclear how that will happen. The reports in the NDP confirm that honor-based violence within the family is still very common in India.

[25]   It occurs throughout the country and is often unreported or is reported as suicides or accidents and here I am referring to the report in the NDP found at Tab 5.10. And so when I consider the evidence cumulatively, I find that if you were to attempt to live openly as a trans man in India, you would face violence, harassment and discrimination in virtually all aspects of your life, from housing to services to employment, and I find that the cumulative impact of this violence and discrimination amounts to persecution. Moreover, I am satisfied that you face a serious risk of honor-based violence or killing at the hands of your father and other members of the conservative Muslim community from which you come. I therefore find that you are at risk, you face a serious possibility of persecution in India on a basis of your sex and gender.

State Protection

[26]   The next question is whether you could seek State Protection against the persecution you fear and I find you cannot. As described above, the law changes articulated by the courts have failed to make significant inroads against the firmly entrenched negative perceptions of society towards those who come from diverse or nonconforming sexual orientation. The RIR at Tab 6.1 says that many police officers continue to hold outdated and negative views that affect their ability to provide adequate protection and the police are in fact known agents of persecution. Police still use nuisance laws to harass, manipulate and bribe the trans men whose family are not aware of the events or sexual identity and there are reports of police committing crimes against gay and trans men and the news and threats of arrests did discourage the victims from reporting the incident. Moreover, it is not uncommon for the police to refuse to investigate or even accept a complaint from an LGBTQ individual. In short, I find that you would not be able to avail yourselves of the police protection in the event that you were threatened, attacked or subject to other forms of violence or harm because of your sexual orientation and identity.

Internal Flight Alternative

[27]   I have also considered whether you might have a viable Internal Flight Alternative in India. I find you do not. Anti-LGBTQ attitudes are deeply entrenched across the country. The discrimination appears to be Jess severe in major cities and yet social contempt for members of the LGBTQ community is prevalent throughout India and I find on a balance of probabilities that if you were to live openly as a trans man as is your right, you would face severe problems in finding housing and employment, both of which are essential to survival and as noted above, it appears to be possible for some members of sexual minorities to survive if they have the support of family and independent means but that is not your situation. And I therefore find that you would not have a viable IFA.

CONCLUSION

[28]   Based on the totality of the evidence before me, I find you are a Convention Refugee. I therefore accept your claim.

——– REASONS CONCLUDED ——–

Categories
All Countries Turkey

2020 RLLR 9

Citation: 2021 RLLR 9
Tribunal: Refugee Protection Division
Date of Decision: December 9, 2021
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Marianna Jasper
Country: Turkey
RPD Number: VC1-05783
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000019-000026

REASONS FOR DECISION

INTRODUCTION

[1]     These are the reasons for the decision in the claim of XXXX XXXX XXXX (the “claimant”), who is a citizen of Turkey, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i

[2]     In rendering my reasons, I have considered the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[3]     The following is a brief synopsis of the allegations put forth by the claimant in her Basis of Claim (BOC) form.ii She fears persecution at the hands of society and authorities in Turkey due to her gender identity.

[4]     The claimant is a XXXX-year-old woman, who was born a male. Since early childhood, she would dress up and behave like girls and was bullied by other boys in school due to this. Tired of harassment, the claimant went to Germany in 2013, where she lived with her uncles and explored surgeries for transformation of her gender from male to female. In order to ease off the pressure of getting married to a female of her family’s choosing, the claimant married her female friend in Germany. After the German authorities determined that the claimant’s marriage with her friend was fake (of convenience), she was forced to return to Turkey as she could no longer stay in Germany. Her marriage to her friend was dissolved by the Turkish authorities after the claimant completed a series of gender reassignment surgeries in 2014 and got herself registered as a female. The claimant participated in rallies for the rights of LGBTQ community in Turkey and was detained by the authorities on two occasions in 2015 and 2016.

[5]     She travelled to Sweden and claimed refugee protection, which was denied by Swedish authorities as they ruled that she would be safe living in Turkey. The claimant returned to Turkey in 2017 and continued to live in Istanbul. She started getting threats from her extended family, who told her parents that she is bringing shame and dishonour to the family, and that she has to exit Turkey. Her uncle threatened to throw acid on her and make Turkey an unlivable place for the claimant. Fearing for her life, the claimant travelled to the United States (US) on XXXX XXXX XXXX 2019 and crossed over to Canada, where she filed for refugee protection.

DETERMINATION

[6]     I find that the claimant is a Convention refugee as she has established a serious possibility of persecution on account of her membership in a particular social group for the following reasons.

ANALYSIS

Identity

[7]     I find that the claimant’s identity as a national of Turkey is established, on a balance of probabilities, based on a certified copy of her Turkish passport on file.iii

Credibility

[8]     When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness. (Maldonado [1980]

2.F.C. 302 (C.A.))

[9]     The claimant testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me which have not been satisfactorily explained. Apart from her oral testimony, the claimant has provided corroborating documentary evidenceiv to support her claim. I have no reason to doubt the genuineness of these documents and accept them as genuine. Amongst others, the documents contain proof of claimant’s marriage in Germany with her friend and dissolution of the same by the Turkish authorities, proof of her gender reassignment surgery through an order of the courts in Turkey, threat note from the claimant’s uncle in Turkey, and support letter from claimant’s mother.

[10]   Based on the claimant’s straightforward testimony and the corroborating documentary evidence, I find her to be a credible witness and accept her allegations to be true on a balance of probabilities. In particular, on a balance of probabilities, I accept that the claimant was borna male and underwent gender reassignment surgery to a female, and that she has a subjective fear of returning to Turkey as alleged.

Nexus

[11]   For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion. The persecution that the claimant faces in this case is due to her gender identity after the gender reassignment surgery she went through from male to female. I find that she has established nexus to a Convention ground – membership in a particular social group; namely a claimant fearing persecution due to her decision to convert from male to female. As such, her claim is being assessed under section 96 of IRPA and not under section 97.

Well-Founded Fear of Persecution and Risk of Harm

[12]   To establish her status as a Convention refugee, the claimant had to show that there was a serious possibility that she would be persecuted if removed to Turkey.

[13]   I find that the objective evidence supports her subjective fears and establishes a serious possibility of persecution for the claimant if she is forced to return to her country. My reasons are as follows.

[14]   The US State Department 2016 Human Rights Practices Report noted that:

‘Minority groups, including …lesbian, gay, bisexual, transgender, intersex (LGBTJ) individuals, continued to face threats, discrimination, and violence and reported that the government took insufficient steps to protect them. Progovernment media used anti-LGBTI …rhetoric.v

[15]   The Department of Foreign Affairs and Trade (DFAT), Australia reports that:

Human rights observers report LGBTI individuals often feel the need to hide their sexual orientation or gender identity at work, and those ·who do nor (or cannot may face negative repercussions. High unemployment rates in the economy as a whole make LGBTI individuals reluctant to complain about discrimination, for fear of losing their livelihoods. Turkish employment law allows the dismissal of a government employee who is found ‘to act in a shameful and embarrassing way unfit for the position of a civil servant’, while other statutes criminalise the undefined practice of ‘unchastity’. Human rights observers report employers have used these provisions to discriminate against LGBTI individuals. Social stigma against HIV/AIDS leads many LGBTI individuals to avoid testing for fear the results may be used against them.vi

[16]   The International Lesbian, Gay, Bisexual, Trans and Intersex Association, in its report on the treatment of sexual minorities notes that this group faced bias-motivated violence through political rhetoric.vii

[17]   The objective evidence discussed above establishes that sexual minorities, including transgender individuals face continuous threats and violence in Turkey. This is based on societal perceptions and political rhetoric against this particular social group. Therefore, based on all the evidence before me, I find that the claimant will face a serious possibility of persecution if she is forced to go back to Turkey. Her fears are indeed well-founded.

State Protection

[18]   I find that adequate state protection has not been forthcoming to the claimant in this case.

[19]   According to the UN Special Rapporteur on extrajudicial, summary, or arbitrary detentions:

‘The challenges relating to the protection of lesbian, gay, bisexual and transgender persons are exacerbated by the attitude of some family members of such individuals, as well as the trend observed by the Special Rapporteur during his visit, whereby law enforcement officials and the judiciary seem to take a lenient attitude towards crime committed against such individuals.viii

[20]   DFAT reports that:

Transgender individuals can legally change gender, although a court must grant permission based on a medical report. Legal gender reassignment is conditional upon the individual remaining unmarried and undergoing surgery and sterilisation. Legislation does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity in social institutions, government offices or corporations. 171e law does not guarantee LGBTI individuals certain rights enjoyed by others, including but not limited to marriage and associated partnership benefits such as retirement, inheritance. insurance. social security and access to the corpse in case of death.ix

[21]   A Response to Information Request (RIR) on the treatment of LGBTQ community in Turkey states that:

The Dutch Ministry of Foreign Affairs report notes that the ban on public LGBTI activities in Ankara “remains in force [as of 2019]” (Netherlands Oct. 2019, 43). The Australian DFAT reports that “in practice the ban in Ankara and many other provinces persists as officials refuse permission on a case-by-case basis, citing security concerns” (Australia Sept. 2020, para. 3.89). The same source notes that in the months after the ban was reversed, police used water cannons, rubber bullets, and tear gas to disperse Pride Month gatherings (Australia 10 Sept. 2020, para. 3.89).x

[22]   The objective evidence shows that LGBTQ community in Turkey suffers from lack of favourable treatment from the authorities in that country. The government not only fails to protect such individuals from violence at the hands of non-state actors but also indulges in curbing their rights. Therefore, I am satisfied that the claimant will be unable to access adequate state protection in Turkey and that the presumption of state protection has been rebutted in this case.

Internal Flight Alternative

[23]   I have also considered whether the claimant will be able to live safely anywhere else in Turkey as a transgender person. On the evidence before me, I find, on a balance of probabilities, that she does not have a viable internal flight alternative in her country. The societal attitudes against sexual minorities are prevalent throughout the country, which results in violence, threats, and discrimination against them. Objective evidencexi shows that transgender persons have a lot of difficulty securing rental premises, have extremely limited job prospects, and do not have access to adequate housing. Therefore, for these reasons and for the ones similar to those of state protection, I find that the claimant will not be able to live safely anywhere in Turkey and that she does not have a viable internal flight alternative in her country.

CONCLUSION

[24]   Based on the analysis above, I find that the claimant is a Convention refugee under section 96 of IRPA. Accordingly, I accept her claim.

(signed) Sandeep Chauhan

December 10, 2021

i Immigration and Refugee Protection Act, S.C. 2001, c. 27.

ii Exhibit 2.

iii Exhibit 1.

iv Exhibits 6, 7.

v Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 1.14: Country Policy and Information Note. Turkey: Sexual orientation and gender identity. Version 2.0. United Kingdom. Home Office. June 2017.

vi Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 1.17: DFAT Country Information Report:

Turkey. Australia. Department of Foreign Affairs and Trade. 10 September 2020.

vii Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 6.1: Turkey. Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe and Central Asia. International Lesbian, Gay, Bisexual, Trans and Intersex Association. ILGA-Europe. February 2020.

viii Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 1. 14: Country Policy and Information Note. Turkey: Sexual orientation and gender identity. Version 2.0. United Kingdom. Home Office. June 2017.

ix Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 1.17: DFAT Country Information Report: Turkey. Australia. Department of Foreign Affairs and Trade. 10 September 2020.

x Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 6.5: Treatment of persons with diverse sexual orientation and gender identity and expression (SOGIE) by society and state authorities, including state protection and support services (2018-November 2020). Immigration and Refugee Board of Canada. 26 November 2020. TUR200360.E.

xi Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 6.1: Turkey. Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe and Central Asia. International Lesbian, Gay, Bisexual, Trans and Intersex Association. ILGA-Europe. February 2020.

Categories
All Countries Iran

2021 RLLR 8

Citation: 2021 RLLR 8
Tribunal: Refugee Protection Division
Date of Decision: September 8, 2021
Panel: Jennifer Smith
Counsel for the Claimant(s): Marcia Pritzker Schmitt
Country: Iran
RPD Number: VC1-05995
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000012-000018

REASONS FOR DECISION

INTRODUCTION

[1]     These are the reasons for the decision in the claim of XXXX (AKA XXXX) XXXX XXXX, a citizen of Iran who is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

[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) and paragraph 170(f) of IRPA.

[3]     In deciding this claim, I have considered all of the evidence before me, including the Basis of Claim (BOC) form,1 the referral documents,2 the country of origin information contained within the National Documentation Package (NDP) for Iran3 and the balance of the claimant’s documentary evidence.4

[4]     In rendering my reasons, I have considered and applied Chairperson’s Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution5 and Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression6 as it is, in my view, necessary to remain mindful of the intersecting relationship between gender, sexual orientation, and gender identity.

ALLEGATIONS

[5]     The claimant alleges that he has suffered past harms, including threats and discrimination, from his parents, school officials, healthcare workers and society generally because his gender identity does not follow the norms of Iranian society. The claimant describes himself as a “trans guy” who was required to obey the rules as a “female” — which he describes as the binary gender he was born with.

DETERMINATION

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

Identity

[7]     I find that the claimant’s identity as a national of Iran is established by his sworn statements and the documents provided, including the certified copies of his passport in evidence.7

Nexus

[8]     I note that Canadian jurisprudence and the Gender Guideline makes it clear that RPD members are to consider the interplay between multiple grounds of persecution advanced by a claimant.8 The claimant fears continued mistreatment due his actual and perceived gender identity and actual and perceived sexual orientation. I find that the persecution alleged by the claimant has separate and intersecting connections to the Convention, relating to the claimants’ membership in particular social groups.

Credibility

[9]     Based on the evidence provided, I have noted no serious credibility issues. In particular, I am satisfied that the claimant has, through his statements and accompanying documentary evidence, established his transgender identity on a balance of probabilities. The relevant documentary evidence is extensive and includes the claimant’s birth certificate, passport and school documents,9 all of which indicate that the claimant was, at the time of the documents’ creation, identified by others as a female person. Other later documents include a social work report from XXXX 2018, counsellor’s report from 2020, a letter from the claimant’s girlfriend of several years10 a medical doctor’s letter from 202011 and support letters from a 2SLGBTQ+ Youth Outreach Worker and Youth Sexual Health Coordinator.12 These documents are consistent with one another regarding the claimant’s experiences and struggles relating to his gender identity and his efforts to seek medical and XXXX supports in Canada.13 These documents are also consistent with the claimant’s own accounts of his experiences and provide corroborative support for his stated gender identity and the past harms to which he has been subjected in relation to this identity. After reviewing the documents, I find no reason to doubt their authenticity.

[10]   I note that, once in Canada, the claimant delayed approximately two years before seeking refugee protection. He arrived in Canada in XXXX of 2017 with a student visa and made a claim for refugee protection in XXXX of 2019. I also note that the claimant was a XXXX attending XXXX school at the time of his arrival in Canada. The claimant has explained that once in Canada he sought out community and peer supports for transgender people, and it was in this context that he received advice about applying for refugee protection. Despite this, however, the claimant also explained that he maintained hope that his parents would change their minds and support him. I find that the claimant’s explanation for not seeking refugee protection immediately upon his arrival in Canada to be reasonable. I note that the claimant was a XXXX who was in Canada legally, with a valid study permit, and was in no danger of being deported to Iran. Given the claimant’s circumstances and explanations, I find that it is not reasonable to draw a negative inference with respect to subjective fear or credibility because he did not seek protection sooner.

Objective basis

[11]   To establish one’s status as a Convention refugee or as a person in need of protection, a claimant must show that there was a serious possibility that they would be persecuted, or on a balance of probabilities be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if removed to their country of origin – in this case Iran. I find the claimant has met that burden.

[12]   The claimant has established his transgender identity. I have considered the claimant’s gender identity in conjunction with the documentary evidence discussed below and find that the claimant has amply established a prospective risk of persecution. Further, by reference to the SOGIE Guideline and the claimant’s evidence, it is apparent that the claimant has engaged throughout his life in a significant measure of behavioural self-censorship. Protecting oneself through continued self-censorship constitutes a serious interference with fundamental human rights. The claimant was unable to live openly as a transgender man in Iran. This provides a further basis for the well-founded fear of persecution by reference to Guideline 9.14 A person cannot be expected or required to conceal their gender identity orientation as a way to avoid persecution in their country of reference.

[13]   As noted above, the risk the claimant alleges is corroborated by the objective country conditions evidence provided by the claimant and in the National Documentation Package (NDP) before me.15 Iran is an authoritarian theocratic republic with a governmental human rights record that is extremely poor. The country conditions evidence amply establishes that transgender persons face discrimination in law and practice and are inadequately protected against violations to their human dignity and integrity. The documentary evidence indicates that transgender persons in Iran are harassed, abused, discriminated against, persecuted, and prosecuted by society and the state, reflecting the persistence of official and societal mistreatment based on sexual orientation and gender identity.16 Even in the absence of evidence of past mistreatment, which the claimant has provided, I find that he would face a serious possibility of persecution in Iran.

[14]   Transgender persons in Iran are considered to have a disorder that must be treated medically, via hormone treatment and sexual reassignment surgery (SRS). This perspective, however, perpetuates harms against both persons who do seek SRS and those who do not. According to a DFAT report, the law does not prohibit discrimination based on sexual orientation and gender identity, and no criminal justice mechanisms exist to prosecute those accused of committing hate crimes against LGBTI persons.17 Post-surgery, transgender persons are advised to maintain discretion about their past due to stigma associated with being transgender. Only after SRS has been completed and legal documents (including identity card, birth certificate and passport) adjusted is a person legally allowed to dress according to the opposite sex and to move into the spaces reserved for this sex.18

[15]   Persons, including the claimant, who do not wish to undergo complete SRS are subjected to Iran’s laws relating to “homosexuality”. The country conditions evidence also reflects “a strong societal taboo against homosexuality. International LGBTI (lesbian, gay, bisexual, transgender and intersex) NGOs report that many young gay men face harassment and abuse from family members, religious figures, school leaders, and community leaders. Authorities have reportedly expelled individuals from university for alleged same-sex relations.” Sexual minorities are unlikely to obtain protection from state officials, and may face harassment, abuse or arrest should they come to the attention of security forces. Both gay men and lesbians face considerable societal pressure to enter into a heterosexual marriage and produce children.19, 20

[16]   It is quite clear from the country conditions evidence that transgender persons, and persons who are perceived as transgender by broader society, are likely to experience violence and abuse by both state and non-state actors. For instance, transgender persons are often arrested for not wearing the mandatory hijab. This evidence is consistent with the claimant’s past experiences of mistreatment by his family, school officials, classmates, health care officials and others who were unwilling to accept and respect his gender identity. Further, members of the trans community in Iran are targeted by the state based on alleged engagement in acts prohibited under the state’s interpretation of Sharia law, such as same-sex sexual activities. For the claimant, this means any intimate relationship with a woman will be subject to criminal sanction.

[17]   Based on the evidence before me, I find that the claimant has a well-founded fear of persecution and faces a serious possibility of persecution by both state and non-state actors if he were to return to Iran.

State Protection

[18]   A claimant is required to approach the state to access state protection if protection might be reasonably forthcoming or it is objectively reasonable for them to have sought state protection. The state is an agent of persecution in this claim. As such, I find it would be objectively unreasonable for the claimant to seek the protection of the state, particularly given that the documentary evidence demonstrates that the state does not provide adequate protection and the state is reported to harass and abuse transgender persons in Iran.

Internal flight alternative

[19]   I find that there is no viable internal flight alternative for the claimant. In this case the claimant fears both state and non-state actors. The officers who are tasked with protecting the citizens of Iran are, in the case of transgender persons, targeting and persecuting them. There is nowhere in Iran where the claimant could live without this fear. I find that the claimant faces a serious possibility of persecution throughout Iran.

CONCLUSION

[20]   I conclude that the claimant is a Convention refugee, pursuant to section 96 of the IRPA and I accept this claim.

(signed) Jennifer Smith

September 8, 2021

1 Exhibit 2

2 Exhibit 1

3 Exhibit 3, National Documentation Package (NDP), Iran, April 16, 2021.

4 Exhibits 4 -7.

 5 IRB Chairperson’ s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa, Canada, March 1993, updated November 1996, Section C.4.

6 IRB Chairperson’s Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Ottawa, Canada, updated May 1, 2017.

7 Exhibit 1.

8 Kusmez v. Canada (Citizenship and Immigration),2015 FC 948.

9 Exhibits 1 and 4.

10 Exhibit 4.

11 Exhibit 6.

12 Exhibit 5.

13 Exhibits 4-8.

14 At para. 8.5.1.1.

15 Exhibit 3, National Documentation Package (NDP), Iran, April 16, 2021.

16 Exhibit 3, items 1.8, 2.1, 6.1, 6.2, 6.3, 6.5, 6.6, 6.8; Exhibit 4; Exhibit 8.

17 NDP 1.8

18 NDP 1.8

19 Exhibit 3, item 1.8

20 Exhibit 3, item 2.1

Categories
All Countries South Africa

2021 RLLR 3

Citation: 2021 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: January 18, 2021
Panel: Nalong Manivong
Counsel for the Claimant(s): Johnson Babalola
Country: South Africa
RPD Number: MB8-07585
Associated RPD Number(s): MB8-07686/MB8-07687
ATIP Number: A-2022-00210
ATIP Pages: 000062-000068

REASONS FOR DECISION

INTRODUCTION

[1]       The claimants, XXXX XXXX XXXX (“principal claimant”) and her two sons, XXXX XXXX XXXXand XXXX XXXX XXXX (“minor claimants”) are citizens of South Africa who are seeking refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“IRPA”).1

[2]       The principal claimant acted as the designated representative for the two minor claimants.

[3]       Throughout the proceeding and in the decision-making process, the Panel applied the

Chairperson ‘s Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution.

DETERMINATION

[4]       The Panel finds that the claimants are “Convention refugees” as they have established that there is a serious possibility that they will be persecuted on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and by reason of the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution, pursuant to section 96 of the IRPA.

[5]       The determinative issue in this claim relates to the allegations on gender-based persecution. Therefore, the Panel will not make a finding with respect to the other allegations regarding Xhosa customs and rituals and forced male circumcision of the minor claimants.

ALLEGATIONS

[6]       The principal claimant’s allegations are fully set out in her Basis of Claim (“BOC”) forms2 and amendments. The minor claimants relied on the principal claimant’s narrative.

[7]       In summary, the claimants allege persecution and risk to their lives at the hands of her ex- common-law husband, XXXX XXXX, a Zulu chief (“Chief”) in the neighbouring village.

[8]       The principal claimant alleges that she was born out of wedlock in a rural area called XXXX XXXX XXXX XXXX in KwaZulu-Natal. Her maternal uncle assumed guardianship and betrothed her to the Chief in exchange for a bride price when she was twelve years of age. The Chief sexually abused the principal claimant.

[9]       The principal claimant alleges that she had an affair and became pregnant with another man’s child and gave birth to her first son on XXXX XXXX XXXX XXXX. When the child did not resemble the Chief, he ordered a paternity test which revealed that the child was not his. The Chief ordered the child to be killed. The claimants fled XXXX and went to live with a friend in Umlazi, Durban and later found work at the XXXX XXXX XXXX.

[l 0]  The principal claimant alleges that the father of her son died in XXXX 2010 because of a car accident. According to the police, the brakes of his vehicle had been tampered with. The police arrested the perpetrator who confessed that he was hired by a Zulu man. In XXXX 2010, the Chief discovered where the principal claimant had work and sent men to threaten her and her son. These men sent her a message stating that the Chief could find her and her son and they would end up like her son’s father.

[11]     The principal claimant moved to a different part of town. She became involved with another man at work and became pregnant and gave birth to her second son on XXXX XXXX XXXX XXXX. The following year, the Chief found out where she lived and sent four men to assault her and her children. The men told her that since she refused to return home to be with the Chief that no one could have her. She was hospitalized for two weeks.

[12]     The principal claimant filed and received a protection order from the court in XXXX 2015. The principal claimant alleges that she moved to various cities and the Chief would cause problems for her in various placed she relocated to up until the time she left South Africa. The claimants left South Africa on XXXX XXXX XXXX 2018 and stayed in the United States until XXXX XXXX XXXX 2018. They arrived in Canada and filed for asylum.

ANALYSIS

Identity

[13]     The Panel finds that, on a balance of probabilities, the claimants have established their personal identities and identities as South African citizens through the principal claimant’s testimony and the documentary evidence, in particular, the certified true copies of their South African passports.3

Nexus

[14]     The Panel finds that the claimants have established a nexus to section 96 of the IRPA on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution.

Credibility

[15]     Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness.4

[16]     The Panel finds that the principal claimant is credible and therefore believes what she has alleged in support of her claim. She testified emotionally, without any embellishments, and there were no inconsistencies in her testimony or contradictions between her testimony and the other evidence before the Panel. She submitted corroborative evidence, namely medical records, copies of protection orders, support letters as well as photos of attacks on one of her sons.5

[17]     The principal claimant’s testimony provided the Panel with insight into the way that the critical events had unfolded and contributed favourably to the finding of credibility. Therefore, the Panel accepts that the claimant subjectively fears persecution at the hands of her husband in South Africa.

[18]     The objective documentary evidence supports the claimants’ allegations regarding gender- based persecution in South Africa.

[19]     According to Tab 5.7 of the National Documentation Package (“NDP”),6 which is a comprehensive report on gender-based violence (“GBV”) in South Africa the two main drivers of intimate femicide are jealousy and possessiveness. These feelings are rooted in notions of masculinity where men see women as their property which they need to maintain power and control over. These men often use guns to intimidate partners especially when they threaten to leave the abusive relationship. In these kinds of relationships, some men kill their partners and themselves. Others kill everyone in the family including children.

[20]     Further, a Response to Information Request (“RIR”) in Tab 5.5 of the NDP states that “the female homicide rate in South Africa is six times higher than the global average and that approximately half of those women are killed by their partner,” that “domestic violence is often perceived as ‘normal,’ contributing to the intergenerational transmission of violence.”7

[21]     Considering the principal claimant’ s testimony and the documentary evidence, the Panel finds that the claimants have established, on a balance of probabilities, that there is an objective basis for the subjective fear of persecution in South Africa.

State Protection and Internal Flight Alternative

[22]     The implementation of legal instruments has not been shown to be having a positive effect on GBV against women in South Africa. According to a report found at Tab 5.3 of the NDP which assesses legislative amendments made in 1998 to better protect women:

“Legislators crafted a multi-dimensional system of accountability designed to compel both an individual and an organizational response to domestic violence in South Africa. But legislating accountability was only the minimum condition for its practice, and the mere fact of accountability mechanisms’ existence is not sufficient to ensure effectiveness. Whatever the improvements it is reported that ambivalence still marks the exercise of accountability in relation to domestic violence in South Africa.”8

[23]     Tab 5.7 of the NDP further reports that police do not take GBV seriously:

“Courts or police stations are often not easily accessible to women and the lack of an effective justice system seems to be an impediment to victims of GBV seeking help, and further increases the risk of more violence and even femicide. Further studies have found that many police officers are unwilling to assist victims of GBV as they see these cases as ‘private matter between two partners.’ Police officers’ passive and negative attitudes in South Africa often result in secondary victimization and play a role in victims not reporting their cases to the police or withdrawing them after reporting. These studies conclude that legislation is good, but negative attitudes among police officers discourage victims from seeking help. A protection order should serve as a protective factor, but for some women, this actually increases their risk of further violence. Of those women who are killed by their intimate partners in South Africa some are known to have had only recently obtained protection orders.”9

[24]     The police themselves are known to often exploit women and engage in the conduct that they are expected to protect women against. In the RIR found in Tab 5.5 of the NDP, according to sources:

“There have been several instances in which police themselves have deviated from protocol and responding to domestic violence cases. Several complaints against police are noted and these include delays in attending to call outs, mediating cases instead of arresting perpetrators and police not taking the experiences of victims seriously. There are even reports of police officers treating abused women poorly. In 2013 there were reports that at least halfa dozen police officers had been arrested for rape themselves including an officer accused of raping a woman who came to the police station to report domestic violence. There are also reports that two police officers were arrested for alleged rape and one of those officers were sentenced to 15 years imprisonment for shooting and killing his girlfriend. And another officer was arrested in the shooting death of another woman he was involved with.”10

[25]     Based on the objective documentary evidence mentioned above, the Panel finds that state protection is not reasonably forthcoming for the principal claimant or the minor claimants m South Africa.

[26]     Lastly, the Panel considered whether a viable Internal Flight Alternative exists. The principal claimant testified that she moved many times in different parts of South Africa. And everywhere she ended up settling down, the Chief had used his connections with the police and the government to locate her. The principal claimant testified that the Chief is motivated to find her because he paid a bride price for her and that he views her as his property. Despite the protection order she obtained against the Chief he continued to torment her and her children wherever they ended up. The principal claimant testified that the Chief was a prominent authority figure in his village and had five other wives prior to paying a bride price to marry the principal claimant. He has demonstrated that he has the resources to pay thugs to do his bidding of threatening and harming the claimants. The Panel, therefore, finds that the agent of persecution has the means and motivation to locate the principal claimant and her children. On the evidence before it, the Panel finds that there is a serious possibility of persecution throughout South Africa, as the objective evidence demonstrates that there is no state protection for victims of gender-based violence in South Africa. The Panel therefore concludes that an Internal Flight Alternative does not exist in the present case.

CONCLUSION

[27]     Having considered all of the evidence, the Panel finds that the claimants have established that they face a serious possibility of persecution in South Africa based upon their membership in a particular social group – women fearing gender-based persecution and/or family members of women fearing gender-based persecution.

DECISION

[28]     The Panel finds that the claimants XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX are “Convention refugees” and their claims are accepted.

            Nalong Manivong      

            18 January 2021         

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 96 and subsection 97(1).

2 Document 2.1 – Basis of Claim Form.

3 Document 1 – Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada;

4 Maldonado v. Canada (Minister of Employment and Immigration), (1980) 2 F.C. 302 (C.A.).

5 Document 4 – Disclosure Documents: C4 to C9; C17; C19 to C22.

6 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.

7 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.

8 Document 3 – Tab 5.3: Mapping local gender-based violence prevention and response strategies in South Africa. The Centre for the Study of Violence and Reconciliation. April 2016.

9 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.

10 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.