Tag: All Case Types

2020 RLLR 153

Citation: 2020 RLLR 153
Tribunal: Refugee Protection Division
Date of Decision: March 11, 2020
Panel: Roslyn Ahara
Counsel for the Claimant(s): Sheau Lih Vong
Country: Mexico
RPD Number: TB7-23117
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000095-000104

REASONS FOR DECISION

[1] XXXX(a.k.a. XXXX) XXXX XXXX (the claimant), who is a citizen of Mexico, is seeking refugee protection, pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

ALLEGATIONS

[2] The claimant’s allegations are set out fully in her amended Basis of Claim Form (BOC).² The claimant fears persecution from her family and society generally as a result of her sexual orientation and gender identity. The claimant alleges that she has been verbally, emotionally, and sexually abused by members of her family, and others, during her adolescence and adulthood, in both Mexico and United States (US). The claimant also alleges that she suffered discrimination and violence due to her sexual orientation and gender identity. She further fears harm at the hands of her older brother, who is a violent criminal.

DETERMINATION

[3] The panel finds that the claimant would face a serious possibility of persecution on a Convention ground upon return to Mexico.

ISSUES

Nexus

[4] The claimant alleges that the persecution she faces is due to her membership in a particular social group in Mexico, namely transgender women. The panel accepts that gender identity is a particular social group and has, therefore, assessed this claim against section 96 of the IRPA.

Identity

[5] The claimant’s identity as a citizen of Mexico is established, on a balance of probabilities, as per her passport.³

Credibility

[6] In considering credibility, the panel is aware of the difficulties that may be faced by the claimant in establishing a claim, namely, the setting of the hearing room, and the stress inherent in responding to questions. The panel has also considered the contents of the medical report.

[7] Most importantly the panel has considered and applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guidelines),⁴ and in this regard it has carefully examined the claimant’s oral testimony in line with the factors to be considered when applying this guideline. The panel examined the challenges faced by this particular claimant.

[8] Although the claimant was not deemed to be a vulnerable person in the absence of medical evidence, the panel made accommodations. Counsel questioned the claimant, and the panel stressed to the claimant that whatever breaks were required, would be granted. In fact, this did occur when the claimant’s demeanour was such that two breaks were immediately suggested by the panel.

[9] The panel considered the factors of mistrust or fear of repercussion by state and non-state actors. More importantly, the panel accepts that the claimant was reluctant to discuss her change in gender identity and therefore, this late information, is not called into question as per the panel’s analysis below.

[10] The panel was also cognizant of the claimant’s XXXX health issues, adding to the marginalization factor. The claimant’s history of social isolation, mistreatment, and lack of social support and XXXX XXXX XXXX XXXX XXXX were considered in terms of the manner in which the claimant testified. The Clinical XXXX Health Assessment submitted was considered; in particular the XXXXof XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the significant impact on the claimant’s experience of emotional and physical violence as a result of her gender identity.⁵

[11] Since submitting her initial BOC, the claimant has provided new documentation in which she indicates that she has begun identifying openly as a woman.⁶ She asked that the panel consider her name to be XXXX, and refer to her by the pronouns she and her. The details of why her initial BOC did not reflect this information are described in detail, but in essence, the claimant has had difficulty in expressing her true feelings to counsel until she met with her current counsel in preparation for her hearing. The panel has provided more specific detail in this regard, relating to the SOGIE Guidelines.

[12] The claimant testified that she could not come forward in terms of her gender identity in the US, as she was undocumented and had no support. Even in Canada, according to the claimant, she had trust issues. As enunciated above, the panel accepted the fact that initially the claimant did not disclose her gender identity until the late disclosure with new counsel. She testified that she has considered herself a woman for the past twelve years and has changed her name on Facebook to XXXX.⁷

[13] She further testified as to why she had re-availed, and as stated above, the panel accepts this as not being determinative of the claim, as there were serious family issues at this time.

[14] She further testified with respect to her reluctance to divulge her female identity with most individuals. More importantly, she explained why she had not taken any steps to express her female identity in the US, due to her lack of documentation and her lack of family support at the time; her father now knows. She elaborated on this that even in Canada, there are trust issues, along with lack of support.

[15] Although delay and re-availment were identified at the hearing along with other issues, in keeping with the SOGIE Guidelines, the panel does not find that these issues detract from the claimant’s credibility. In totality, the panel was satisfied that the claimant’s testimony was credible and that she has identified as a female for 12 years. The panel accepts that the claimant is a transgender woman and that she has a subjective fear of persecution in Mexico.

[16] Moreover, her testimony was corroborated by copious amounts of corroborative evidence, including the late disclosures, anticipating a resumption. These late disclosures included:

A letter from her friend, SS.
A copy of her Facebook page in which her name is indicated as XXXX XXXX, not XXXX.
A certificate from a XXXX Health Counsellor.⁸
The claimant’s BOC has been amended to reflect her gender identity. This evidence was preceded by letters from former partners, photographs, a letter from 519, BOC amendments, a letter corroborating her relationship with XXXX in the U.S, a legal opinion to apply for asylum in the U.S., photographs, and a clinical report indicating that the claimant suffers from XXXX XXXX XXXX XXXX XXXX.⁹
A letter from the Toronto Western Family Health Team dated XXXX XXXX XXXX 2020, indicating a referral to the Gender Identity Clinic.¹⁰

[17] The panel acknowledges that much of the above disclosures were submitted on the day of the hearing, in fact, during lunch prior to the afternoon hearing. However, the panel had the opportunity to analyze the claimant’s testimony, in conjunction with further study of this new evidence, coupled with the objective evidence before rendering its decision.

[18] The panel received a motion for recusal subsequent to the hearing,¹¹ which was refused. The panel notes that there was some confusion caused by the late disclosure, and by the panel having received materials at the last minute. However, as noted above, the panel has had the opportunity to consider all the disclosure carefully after the hearing in accordance with the SOGIE Guidelines. For these reasons, the panel finds that a reasonable, fully-informed person, thinking the matter through, would conclude that it is more likely than not that the decision maker in this case would act fairly in the circumstances.

Objective basis

[19] Transgender women in Mexico still face pervasive persecution based on their identity gender identity and expression. It notes the following:

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 women.

[…]

Transgender women continue to face beatings, rape, police harassment, torture and murder in Mexico.¹²

[20] It is reasonable to conclude from a review of the country conditions that while there has been some improvement in terms of attitudes towards LGBTQ issues, there is still a long way to go, particularly for persons with the claimant’s profile.

[21] While unprecedented political and legal gains have been made in Mexico, the social environment in most of Mexico remains repressive, and often dangerous. Machista ideals of manly appearance and behavior contribute to extreme prejudices against sexual minorities, and often to violence against them.

[22] Moreover, as the claimant testified, she is fearful of the police. This is also supported in the documentary evidence. In this regard, the panel has considered the personal circumstances of this claimant which includes her age and health status, along with her history which is well documented. The panel further accepts that in the particular circumstances of this claimant, it may be unreasonable for her to approach the state for protection, keeping in mind that the state protection must be adequate at the operational level.

[23] Furthermore, issues such as employment, secure housing, access to medical treatment as well as treatment related to the transition process must be considered, along with mental health issues and equal access to social services:

Vulnerable communities, including transgender women, are often victims of drug cartel and gang violence. Transgender women fall victim to cartel kidnappings, extortions, and human trafficking. One transgender woman described how cartel members forced her into sex work in Merida. Another transgender woman was targeted for rape and robbery while traveling by bus. In another case, a transgender woman named Joahana in Cancun was tortured to death by drug traffickers who carved a letter “Z” for the Zeta cartel into her body. If a cartel targets a transgender woman, it is nearly impossible to escape the cartel’s power. An immigration attorney in the U.S. described in an interview how his transgender female client unknowingly dated a cartel member. After doing so, she could not escape persecution from the cartel.¹³

[24] A recent Response to Information Request further notes that:

Amnesty International (AI) indicates that enforced disappearances, including those committed by state and non-state actors, are “widespread” …

[…]

The U.S. Country Reports 2016 indicates that the investigation, prosecution and sentencing for disappearance-related crimes “remained rare”… AI characterizes the investigation of disappearances as “flawed and unduly delayed,” with authorities failing to immediately search for victims… ¹⁴[footnotes omitted]

[25] The documentation indicates that antidiscrimination laws do not prohibit discrimination on the basis of gender identity. The lack of protection leaves transgender women especially vulnerable to employment discrimination. Transgender women, in Mexico often lack access to gender health care and are generally denied the ability to change their name and/or gender on ID documents to match their gender presentation. It is indicated that:

It should be noted that transgender people cannot simply “hide” who they are and thereby escape persecution by living in accordance with their birth-assigned gender role. Gender dysphoria is a serious condition, recognized by every major medical association, the only treatment for which is to live in accordance with the gender with which they identify, rather than the gender assigned at birth. Attempting to suppress one’s gender identity can have dire health consequences. Moreover, a person’s gender identity is a fundamental component of identity, which cannot be required to be changed or hidden as a condition of protection under asylum laws.

As noted, only Mexico City permits transgender people to legally change their name and gender to correspond to their gender identity. Even where such mechanisms are technically available, however, legal name changes are not accessible in practice for many transgender women. This is in part due to “lengthy delays and high costs-at least six months and approximately 70,000 pesos… are required, and completion sometimes depend[s] on the ‘good will’ of some civil servants.”…

[…]

Transgender women lack adequate health care in Mexico. Many transgender women resist seeking medical help because they must disclose their transgender status and subsequently face hostility and threats of violence from medical providers. Medical care providers often do not want to provide medical attention to transgender patients. Providers have mocked and humiliated transgender patients using offensive language, threats, aggression, and hostility. Consequently, transgender women do not routinely access preventive or emergency care.

In particular, medical care to support gender transition-such as hormones or surgeries-is almost entirely unavailable to most transgender women in Mexico. While medical authorities uniformly recognize the medical necessity of transition related treatment, such care is not covered under Mexico’s national health plan and licensed providers (for those who can afford to pay out of pocket) are scarce. Even where it is available, such care can be prohibitively expensive for transgender women already suffering the effects of economic marginalization discussed earlier. Without access to gender-affirming medical care, many transgender women permanently damage their skin and muscles by injecting dangerous black-market feminizing liquid silicone or other fillers.¹⁵

[26] Further documentation notes that:

The May 2016 report of the Cornell Law School LGBT Clinic and the Transgender Law Center also specifies that there are “no federal laws that explicitly protect transgender individuals from discrimination on the basis of their gender identity (i.e., their transgender status) as opposed to sexual orientation”…

[…]

In a short overview of, among others, hate crime legislation in different countries, the same report indicates, however, that in Mexico there is no such legislation. The report, in contradiction to the above cited explanation, states that the federal law neither criminalises hate speech nor hate crimes. The report in this context mentions article 149 Ter of the Federal Criminal Code of Mexico which refers to discrimination…

[…]

In its query response about the situation and treatment of sexual minorities, particularly in Mexico City, Cancun, Guadalajara, and Acapulco of August 2015, the Immigration and Refugee Board of Canada (IRB) writes:

“A report on crimes against transgendered women sent to the Research Directorate by a representative at the Support Centre for Transgender Identities… , an NGO that advocates for the rights of transgendered women in Mexico… , indicates that transgendered women are discriminated against by the police and judicial authorities … The representative from Colectivo León Gay, A.C. indicated that LGBT persons are [translation] ‘frequently’ harassed and arbitrarily detained due to their physical appearance, the way they dress, or for expressing affection in public… The representative also indicated that they are barred from assembling in public because they are seen as ‘engaging in prostitution or giving a ‘bad example’ or ‘bad image’ to society’ … ¹⁶ [footnotes omitted]

[27] In light of the cited documentary evidence regarding similarly situated persons in Mexico who did not receive adequate state protection, there is sufficient evidence before this panel to conclude that, despite efforts made by the state, at this time, the state is not able to offer adequate protection to transgender individuals like the claimant. Accordingly, the panel finds that there exists clear and convincing proof that state protection is not available to transgender individuals like the claimant in Mexico. The panel, therefore, finds that the claimant has rebutted the presumption of state protection and has established that her fear is objectively well-founded since the harm she fears cumulatively amounts to persecution.

[28] With respect to an internal flight alternative (IFA), it is clear from the documentary evidence that societal prejudices against transgender persons are found all over Mexico, including Mexico City. There is blatant disregard for the safety as well as the wellbeing of transgender individuals like the claimant. Homicides and assaults against these groups continue under a backdrop of religious and cultural tolerance and moral condemnation. Based on the evidence adduced, the panel finds that there is no viable IFA for transsexual/transgender persons in Mexico City, or for that matter any part of Mexico.

[29] Based on the totality of the evidence adduced, the panel finds that there is a serious possibility, based on her evidence, that she would be persecuted due to her gender identity should she return to Mexico.

CONCLUSION

[30] Accordingly, the panel accepts the claimant as a Convention refugee.

(signed) Roslyn Ahara

March 11, 2020

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

² Exhibit 2, Basis of Claim Form (BOC).

³ Exhibit 1, Package of Information from the Referring CBSA/CIC, Certified True Copy of Passport.

⁴ Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(l)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.

⁵ Exhibit 4, Personal Disclosure #1, at pp. 28-34.

⁶ Ibid., BOC Addendum.

⁷ Exhibit 6, Personal Disclosure #3, at pp. 3-5.

⁸ Ibid., at pp. 1-6.

⁹ Exhibit 4, Personal Disclosure #1.

¹⁰ Exhibit 8, Personal Disclosure #4, at p. 1.

¹¹ Exhibit 7, Recusal Application.

¹² Exhibit 3, National Documentation Package (NDP) for Mexico (August 30, 2019), item 6.3.

¹³ Ibid.

¹⁴ Ibid., item 7.18.

¹⁵ Ibid., item 6.3.

¹⁶ Ibid., item 6.1.

All Countries Morocco

2020 RLLR 152

Citation: 2020 RLLR 152
Tribunal: Refugee Protection Division
Date of Decision: October 27, 2020
Panel: Carolyn Rumsey
Counsel for the Claimant(s): Laura Setzer
Country: Morocco
RPD Number: MC0-02209
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000090-000094

DECISION

[1] MEMBER: So, this is the decision of the Refugee Protection Division in the claim for refugee protection of the claimant XXXX XXXX (ph) and legal name is XXXX XXXX XXXX XXXX.

[2] So, you are a citizen of Morocco and you are making a refugee claim pursuant to s. 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[3] So, because of the nature of your claim, I have considered our Chairperson’s Guidelines on sexual orientation and gender identity and expression.

[4] For the reasons that follow, I find that you have established that there is a well-founded fear of persecution for yourself in Morocco, and this is based on your sexual orientation and your gender identity, and I find that you are a Convention refugee pursuant to s. 96 of the IRPA, of the Act.

[5] As we discussed at the beginning of the hearing, your detailed allegations are contained in your Basis of Claim form. You allege that you fear that you will be harmed or killed due to your identity as a transgender woman in Morocco, but you also mention your sexual orientation as being pansexual, and I’ve also considered this as part of your claim.

[6] So, in terms of your identity, your personal and national identities as a citizen of Morocco are established on a balance of probabilities by your testimony but also by your documentary evidence that you have on file, and in particular, a copy of your Moroccan passport.

[7] I had to analyze your credibility and whether I (audio cuts out) what you told me today, whether I believed what was in your narrative and in your supporting documents, and I found you to be very credible.

[8] You spoke about your experiences in Morocco, about your experiences coming out to friends that you had in Morocco in person, but also to a community of people that you met online. And you talked about your experiences also coming out to your family and how that was more of a negative experience than coming out to your friends.

[9] And when you spoke about your reason for choosing your name, the name that you now use to refer to yourself, I found that very compelling. You gave an explanation of why you chose your first name and your last name and the importance that it held for you and how you felt since using that name.

[10] You also talked about your experience in Ottawa when you first came here and how you suffered from XXXXandXXXX XXXX and how this led you to seek help, to seek help from the healthcare system, and how you have been following hormone therapy and you have been moving towards a transaction, and how your feelings before this were very negative and that now you feel much more comfortable in your body. And there was something in your narrative that really stuck out for me as well. You wrote in your narrative that now strangers refer to you as female and that that has — that makes you feel very good inside. So, I found that very compelling and very moving, too.

[11] I found that there were no contradictions or omissions or inconsistencies in your testimony. You gave very detailed responses and you testified spontaneously.

[12] You also (audio cuts out) documents to support your story. So, you submitted a letter from your doctor, the doctor that you referred to today who prescribed you the medication that you are taking, the hormone therapy. You provided a letter from your partner, XXXX (ph), who has also acted as your support person today. You also provided a copy of your joint lease for your apartment with XXXX, your partner, and other roommates here in Ottawa. And then finally, you included a number of photographs, and these are photographs of yourself before your transition, photographs of yourself now, and photographs with your partner, XXXX, as well.

[13] So, given your credible testimony and the documents that you have submitted and the fact that your testimony was consistent with your narrative and your port of entry forms, I find that on a balance of probabilities you have established the truth in your allegations and I believe what you have said today and in your narrative.

[14] So, I just have to talk about the objective evidence. So, we have a National Documentation Package for Morocco and there is a section that is dedicated specifically to LGBT issues, or we call them SOGIE issues, sexual orientation, gender identity, (audio cuts out) expression issues. So, I find that this documentary evidence on the situation for LGBT persons in Morocco is very clear. The most stark point is the legislation against being a member of the LGBT community.

[15] So, the Moroccan government deems lesbian, gay, bisexual, or transgender orientation or identity to be illegal. And this is document 6.1 in the NDP that I’m referring to right now. It also mentions that society does not look kindly upon gay and lesbian relationships, considering them to be prohibited by Islam. And this echoes, of course, what you were saying about your relationship with religion and the way that LGBT community is perceived in Morocco. The same report talks about social violence, harassment, and blackmail based on sexual orientation or gender identity, and it also says that, specifically to the gender identity, people who feel that they belong to a gender other than their official gender do not openly discuss their situation for fear of being banished by society.

[16] The next report in the package is 6.2. It talks about the family response to someone coming out as having a sexual orientation or gender identity that is kind of outside of the norm. They mention mob attacks, forced heterosexual marriage, confinement or eviction from family homes, psychological abuse. And the same report even mentions that even the authorities in Morocco are known to intimidate LGBTI activists. And it also says that there’s a general social hostility and this is legitimized by public officials and by the rhetoric that is anti-LGBTQ and also pervasive kind of negative medica coverage on those issues.

[17] More specifically to transgender people, the same report indicates that they are viewed as being mentally ill and that there is a complete lack of legal gender recognition and that this restricts their access to services, so things like healthcare services and stuff like that.

[18] There is even — there is a quote in that report that I found particularly striking and it quotes the Human Rights Minister in Morocco in 2017 as saying that (as said), “In Morocco, we have to stop talking about homosexuals because we give them value when we talk about them.” And then he said, “They are trash.” So, even coming from the government there is this anti-LGBT rhetoric, and of course, because issues concerning LGBT activities are considered illegal, that is not terrible surprising.

[19] This report also mentions that there is a national human rights council in Morocco but that it does not address LGBTQ issues. And even more so, Morocco in Human Rights Council meetings of the UN, Morocco has voted against the adaption of resolutions that support LGBTQ issues and rights.

[20] So, based on all of that information, I find the country condition evidence is overwhelming regarding LGBTQ persons in Morocco. And so, I find that on a balance of probabilities there is an objective basis for your fear in Morocco for that reason.

[21] So, I had to look at two other things.

[22] The first is state protection. So, I have to look at whether the authorities could protect you in Morocco. And given the items in the package that mention authorities’ attitudes towards LGBTQ persons and the fact LGBTQ activity is considered illegal, I find that the authorities are an agent of persecution in your case and therefore that on a balance of probabilities adequate state protection would not be available to you if you were to return to Morocco.

[23] Finally, I also have to consider whether you could go to another part of your country and be safe there. So, that’s called internal flight alternative. Again, because — I find — because the laws that prohibit LGBTQ activity are enforced throughout Morocco and the information to me is clear that these attitudes are pervasive throughout the country, this leads me to conclude that there is nowhere that you could be safe in Morocco. So, you have a serious possibility of persecution throughout the country and therefore there is no internal flight alternative available to you.

[24] So, to conclude, based on all of this evidence, I find that you would face a serious possibility of persecution on the basis of your particular social group as a transgender woman and as a pansexual person if you were to return to Morocco. So therefore, I find that you are a Convention refugee, and I am accepting your refugee claim under s. 96 of the Immigration and Refugee Protection Act.

[25] COUNSEL: Thanks very much.

[26] MEMBER: So, I just want to say thank you to XXXX XXXX XXXX. I — I really appreciate your willingness to do this in a virtual way in particular given the difficulties that we’re facing this year in 2020. So, thank you for that. Thank you for your testimony as well. I know it’s not an easy thing to do, to - especially to talk about these kinds of sensitive issues with a stranger, so I really appreciate that very much.

[27] I want to say thank you to your partner, XXXX, as well for being support today this morning.

[28] And thank you, Counsel, as well for your support.

[29] COUNSEL: Thank you.

[30] MEMBER: So, just one last thing to — to let you know is that if you change your mailing address, if you decide to move, just let the Board know, just keep your address updated because the decision I just read out to you, you will receive a written copy of that decision in the mail and we don’t want you to miss that.

[31] So, congratulations and I wish you all the best. Take good care of yourself.

[32] COUNSEL: Thanks very much.

[33] MEMBER: Thank you. Bye-bye.

[34] COUNSEL: Bye-bye.

– – – – – – – – – – – REASONS CONCLUDED – – – – – – – – – –

All Countries Nigeria

2020 RLLR 149

Citation: 2020 RLLR 149
Tribunal: Refugee Protection Division
Date of Decision: November 3, 2020
Panel: M. Bourassa
Counsel for the Claimant(s): Henry Igbinoba
Country: Nigeria
RPD Number: TB8-13768
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000053-000061

REASONS FOR DECISION

[1] The claimant, XXXX XXXX XXXX claims to be a citizen of Nigeria, and is claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).ⁱ

[2] The panel has received and considered post-hearing evidence^,ii namely updated medical reports.

DETERMINATION

[3] Having considered the totality of the evidence, the panel finds that the claimant, is a Convention refugee pursuant to s. 96 as he has established a serious possibility of persecution based on a Convention ground, namely his perceived political opinion.

ALLEGATIONS

[4] The allegations are set out in the claimant’ s Basis of Claim form.ⁱⁱⁱ In short, the claimant alleges that if he were to return to Nigeria, he fears for his life at the hands of the state security apparatus, especially the military, due to his perceived political opinion based on his perceived membership in the Indegenous People of Biafra (IBOP).

[5] The claimant alleges that he operated a business at XXX in Umuahia in Abia State. He XXXX XXXX XXXX XXXX at the XXXX XXXX XXXX in Lagos to see and provide services to his customer base in Umuahia. He would shuttle between his business in Umuahia and his home is Lagos.

[6] He alleges that in XXXX 2016, he was was detained, interrogated and mistreated by the military on suspicion of involvement with the IPOB and released without being charged.

[7] The claimant alleges that he went to his nearby home village of XXXX XXXX to stay with relatives and recover. At the end of October 2016, he received a call from a business colleague who informed him that the military had returned to his shop at XXXX. The claimant returned to Lagos to live with his wife and family. He alleges that he remained very scared and largely stayed inside the house. He did not experience any problems after his return to Lagos.

[8] The claimant alleges that he and his wife had planned a trip to Canada to celebate an important anniversary that had to be delayed because of what had happened to him. They left Lagos on XXXX 2018.

[9] The claimant alleges that his wife received a call while in Canada informing her that the “Bale” or local chief had sent men looking for her as her same sex relationship had been exposed. They separated and the claimant remains estranged from his wife. The claimant also fears the police and the “Bale” of the area where they formerly resided and that he risks being arrested because of his estranged wife’s issue.

[10] The claimant alleges that the military have come to his home village looking for him, most recently on November 20, 2019, and that there is nowhere in Nigeria where he would be safe.

NEXUS

[11] The panel finds that there is a link between what the claimant fears and one of the five Convention grounds, namely, his perceived political opinion as a perceived member of the IPOB.

ANALYSIS

Identity

[12] The panel finds that the claimant’s personal identity and nationality as a citizen of Nigeria and his Igbo ethnicity have been established on a balance of probabilities. This has been established through the claimant’s testimony and the supporting documentary evidence filed that includes his passport, a copy of which was provided to the Board by IRCC/ Canada Border Services Agency (“CBSA”).^iv

CREDIBILITY

[13] Considering the totality of the evidence, the panel finds the claimant to be a credible witness and therefore believes what he has alleged in support of his claim as set out in oral and written testimony. The panel notes that the claimant’s estranged spouse has a separate claim for refugee protection based on her own personal circumstances. She did not appear as a witness nor did she submit any evidence in support of the claimant’ s claim.

[14] The claimant testified credibly and in detail that he was detained, interrogated, and mistreated by the military in XXXX 2016 on suspicion of involvement with the IPOB and released without being charged. He described in detail how he was arrested by the military who entered his shop asking about IPOB materials, which he denied having. He was taken along with other men to a military barracks where he was detained, beaten and interrogated about the IPOB, its leadership and activities and the whereabouts of Emma Powerful. He denied any involvement with the IPOB. Two days later, he was taken to his home where they saw XXXX XXXX XXXX XXXX that he used in his XXXX and was accused of being an engineer technician for Radio Biafra. They also went to his shop in XXXX where they found various XXXX that he was repairing or had for sale. He was taken back to the barracks and subjected to further interrogations and beatings. He alleges that he lost XXXX XXXX as a result of the beatings. He remained in detention for a further 10 days and was released. The document issued to him by XXXX showing that he owned a business there and his driver’s licence were retained. He testified that he was never charged, and no conditions were attached to his release.

[15] The Panel finds the claimant’s account of events in Umuahia is plausible in light of the objective documentary evidence regarding the treatment of members and suspected members and supporters of the IPOB by joint military and police operations throughout the south-eastern region of Nigeria during this time period.^v The panel also notes that the documentary evidence^vi refers to Radio Biafra and its main host, Emma Powerful, and its role in organizing protests and calling for boycotts. According to one source, the broadcasts are illegal and are conducted live from an undisclosed location in Nigeria.

[16] The claimant also provided evidence of his business registration^vii which the panel found to be credible.

[17] The claimant also provided an affidavit^viii from C.C. who owns a shop in XXXX XXXX

as the claimant that corroborates the claimant’s account of his detention by the military arrest as a suspected member of the IPOB and the military’s return trip to XXXX and to the claimant’s shop while he was recovering in his village. The panel finds the affidavit to be credible.

[18] The claimant also provided an affidavit^ix from U.I., a cousin, that corroborates the claimant’s account of his condition and that he cared for the claimant in the village of XXXX XXXX Umuahia in Abia State. The panel finds the affidavit to be credible.

[19] The claimant also provided an affidavit^x from M.O.O., that states that the military and plain clothed security agents came to the village on XXXX 2019 and arrested IPOB members and others and also came to the family house in search of the claimant. The panel finds the affidavit to be credible.

[20] The claimant also submitted reports from C.E. with XXXX XXXX^xi hearing clinic that references the claimant’s history of head trauma by the Nigerian military and corroborates hearing loss in XXXX. The claimant testified that he receives ongoing treatment from a psychotherapist and submitted two reports into evidence.^xii

[21] Considering the totality of the evidence, the panel finds on a balance of probabilities that the claimant has a subjective fear of returning to Nigeria due to his perceived political opinion as a perceived member of the IPOB. He has established that he is a person of previous interest to the state security apparatus, especially the military, and that he was detained, interrogated and mistreated by the military in Umuahia in Abia State on suspicion of involvement with the IPOB and released without being charged and that the military continue to look for him.

OBEJCTIVE BASIS

[22] The Board finds that the claimant’s allegations are supported by the documentary evidence, namely the national documentation package for Nigeria^xiii and claimant’s disclosure, ^xiv and that the claimant could face a serious possibility of persecution should he return to Nigeria on account of his perceived political opinion as a perceived member of the IPOB.

[23] The panel considered the following documentary evidence.

[24] It was reported by Amnesty International (AI) in September 2016^xvthat on several occasions security forces have used excessive force against pro-Biafran activists who have attended protest marches or attempted to do so across south-eastern Nigeria. AI has documented cases of arrest, enforced disappearance and often killing of supporters and members of various pro-Biafran groups. Scores of Biafran independence supporters were in detention for attempting to hold or participate in peaceful assemblies, many of them since January 2016.

[25] Another AI report^xvi from November 2016 refers to its research that shows a disturbing pattern of hundreds of arbitrary arrests and ill-treatment by soldiers during and after IPOB events, including arrests of wounded victims in hospital, and torture and other ill-treatment.

[26] Other sources in addition to AI xvii report on members and supporters of IPOB as well as bystanders being injured or killed by police and military in Onitsha on May 30, 2016 during protests held to mark the anniversary of the start of the 1967 Biafra war. According to AI, this resulted in at least 17 deaths and 50 injuries and was the consequence of excessive and unnecessary use of force.

[27] AI also noted that between August 2015 and May 2016, there were at least five similar incidents in Onitsha alone where the police and military shot unarmed IPOB members and supporters. AI reported that the military opened fire on peaceful IPOB supporters and protesters and that killing and mass arrests of members and supporters by joint military and police operations happened in October, November and December 2015.^xviii

[28] Sources also stated that Nmamdi Kanu, the leader of the IPOB, was jailed on charges including treason which is punishable by death and kept in custody until April 2017 despite the court ordering his release.^xixFour IPOB members who were arrested with Nnamdi Kanu in 2015 were jailed and charged with treasonable felony. They were granted bail in June 2018.

[29] The Nigerian military launched Operation Python Dance II in September 2017. The military raided Kanu’s home as part of the operation. AI indicated that ten IPOB members were killed and twelve injured by the military and the military noted that the deaths occurred during their attempt to arrest Kanu at his home.^xx

[30] Sources indicated that the Nigerian military designated the IPOB as a terrorist organization in September 2017.^xxi Also, five south eastern states including Anambra banned all IPOB activities in September 2017. Sources indicate that the Abia State Police Commissioner stated, subsequent to the terrorist designation and the ban on IPOB activities, that anyone caught with Biafran materials would be arrested and prosecuted.^xxii According to other sources, the Anambra Police Commissioner indicated the ban would be enforced and anyone involved in the activities of the IPOB would be charged with terrorism, which carries a minimum sentence of twenty years and a maximum sentence of the death penalty.^xxiii

[31] Other sources reported that in September 2017, sixty pro-Biafra supporters who participated in an IPOB rally which left a police officer dead and a police station nearly burned down, were charged and jailed for conspiracy, terrorism, attempted murder and membership in an unlawful society^.xxiv

[32] Other sources indicates that 112 women in Owerri were arrested during an August 2018 protest regarding the whereabouts of Kanu and subsequently detained and charged with treason and unlawful assembly.^xxv

[33] Other sources indicated that 51 people were arrested in December 2018 for being m possession of different emblems of the IPOB.

[34] Other sources indicate that Enugu State Joint Security Patrol teams found Biafra insignias on 140 individuals going to a funeral. All 140 individuals were arrested and charged with terrorism and sent to prison by the magistrate court until their case could be heard at the High Court.

[35] The panel has also considered recent documentary evidence from June 2020^xxvi that refers to the arrest of IPOB protesters in Abia state that were to be brought to the police headquarters in Umuahia, the same location where the claimant operated his business. More recent documentary evidence from August 2020 refers to clashes between IPOB members and the police, army and Department of State Services operatives when the police attempted to arrest them.^xxvii

[36] Considering all of the evidence, including the claimant’s credible account of events that he is a person of previous interest to the state security apparatus, especially the military, and that he was detained, interrogated and mistreated by the military in Umuahia in Abia State on suspicion of involvement with the IPOB and that the military continue to look for him and the documentary evidence with respect to the treatment by Nigerian authorities of actual or perceived members and supporters of the IPOB, the panel finds that the claimant would face a serious possibiity of persecution should he return to Nigeria based on his perceived political opinion as a perceived member of the IPOB.

STATE PROTECTION

[37] Based on the claimant’s personal circumstances as well as the objective country documentation as referred to above, the panel finds on a balance of probabilities that it is objectively unreasonable for the claimant to seek protection from authorities in Nigeria. The state security apparatus, especially the military, is the agent of persecution. Therefore, the panel finds that there is no adequate state protection available for the claimant in Nigeria.

INTERNAL FLIGHT ALTERNATIVE

[38] With regards to an internal flight alternative (“IFA”), this is not a viable option as Nigerian authorities have effective control over the territory. Based on the objective documentary evidence as set out above, the panel finds that there is a serious possibility of persecution throughout Nigeria and as such there is no viable IFA.

CONCLUSION

[39] Based on the totality of the evidence, the panel finds that the claimant would face a serious possibility of persecution based on his perceived political opinion as a perceived member of the IPOB. Therefore, the panel finds that the claimant is a Convention refugee and accepts his claim.

(signed) “M. Bourassa” M.BOURASSA

November 3, 2020 Date

ⁱImmigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1)(b).

ⁱⁱExhibit 18, post-hearing evidence.

ⁱⁱⁱExhibit 1.

^iv Exhibit 2.

^v Exhibit 7, Response to Information Request NGA 106308.E, 28 June 2019.

^vi Exhibit 13,

^vii Exhibit 9, item 6.

^viiExhibit 7, item 6

^viii Exhibit 9, item 1.

^ix Exhibit 9, item 2.

^x Exhibit 17.

^xi Exhibit 18, post-hearing submissions and Exhibit 9, item 5.

^xii Exhibit 18, post-hearing evidence and Exhibit 7, item 4.

^xiii Exhibits 3 and 13.

^xiv Exhibits 16 and Exhibit 10, item 5, Nigeria: The lndigenous People of Biafra (IPOB), including objectives, structures, activities, relations with other Biafran independence groups and treatment by authorities.

^XV Ibid.

^xvi Exhibit 10, item 2.

^xvii Ibid.

^xviii Ibid.

^xix Exhibit 13, NGA 106308.E, 28 June 2019.

^xx Ibid.

^xxi Ibid.

^xxii Ibid.

^xxiii Ibid.

^xxiv Ibid.

^xxv Ibid.

^xxvi Exhibit 16.

^xxvii Ibid.

All Countries Mexico

2020 RLLR 151

Citation: 2020 RLLR 151
Tribunal: Refugee Protection Division
Date of Decision: February 5, 2020
Panel: Krystle Alarcon
Counsel for the Claimant(s): (no information available)
Country: Mexico
RPD Number: MB9-12276
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000083-000089

[1] This is deci… the decision for XXXX XXXX XXXX. I would like to note that the claimant’s identity documents indicate that she is male and the name on the passport submitted as evidence is “XXXX XXXX XXXX”. The claimant is now transitioning to a woman and therefore identifies as a woman and would now like to be addressed as XXXX, though she has not gone through any formal name changes yet. The claimant’s file number is MB9-12276. At the hearing, and in rendering this decision, I have considered and applied both the Chairperson’s guidelines four, women refugee claimants fearing gender-related persecution, and Chairperson’s guidelines nine, proceedings before the IRB involving sexual orientation and gender identity and expression. I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally. I would like to add that when written reasons are issued, they may be edited for spelling, syntax, and grammar. You are a citizen of Mexico and you are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

DETERMINATION

[2] I find that you are a “Convention refugee” based on your gender as a transgender woman.

ALLEGATIONS

[3] You allege the following. In your… In your original Basis of Claim form, or your… or your BOC, you stated that you fear serious harm or death at the hands of cartels, because at least three of your family members have been kidnapped for ransom in Mexico, as you hail from a well-to-do family. In your amended Basis of Claim form, you stated that you have now come out as a woman and that you fear returning to Mexico with your new identity as a woman, because of the horrible discrimination that the LGBTQ+ people face.

ANALYSIS

IDENTITY

[4] Your personal identity and nationality as a citizen of Mexico has been established on a balance of probabilities by a certified true copy of your valid Mexican passport.

CREDIBILITY

[5] I find you to be generally credible Madam. You testified in a straightforward, open and detailed manner. For example, you described how since you were eight years old you felt like you were in the wrong body. That you enjoyed playing with dolls and other girls, and at first you thought you were gay, but then you realized that you were jealous of other girls because you wanted to be born a girl. You provided a compelling testimony about how you came out to your mother recently, and she didn’t accept that you wanted to transition. You said that she called you repetitively since then, and talked to you for hours trying to change your mind. You said that she told you that no matter what, you would always be her son. I also note that you asked me not to tell your father about your transition as he initially was supposed to testify as a witness regarding the targeting of your relatives by cartels in Mexico. You said that you haven’t spoken to him yet about your transition and you fear his reaction if he finds out today about it. You also went into significant detail about how it hurts you when people address you as “Sir” or “Monsieur”. You gave the example about how earlier today you approached a stranger for help with something, and this person referred to you immediately as “Sir”. You testify that you accept that no matter what you will never be fully accepted by society, excuse me, society, even if you don’t wear makeup or dress like a woman. You also went into detail about how you sought support from an organisation in Montreal called Action Santé Transves … Transvestite and Transsexuel du Québec, who have whole heartedly encouraged you to go through hormone therapy and to come to terms with your gender identity. I would also like to note that indeed, today, in front of me, you are dressed as a woman, in a squirt, and you are wearing makeup.

[6] There were no significant inconsistencies, omissions or incompatible behaviours that were not reasonably explained. Of course, I would like to address why you omitted from your first Basis of Claim form that you identify as a woman. Your initial Basis of Claim form was signed on XXXX XXXX XXXX 2019, and you testified that you have only started hormone therapy in XXXX 2019, which is corroborated by your doctor’s note labelled P-2. You said that you were initially even afraid of talking about your transition to your lawyer, worried that she might not want to retain you and represent you as a transgender woman. Given that indeed you submitted an amendment signed on XXXX XXXX XXXX 2019, which is shortly after you started the medical transition, we do not draw a negative inference in regards… I do not draw a negative inference in regards to your credibility for this omission, as it is reasonable that you only included it in your narrative after you actually started the treatment.

[7] I also asked you about your failure to claim refuge in the U.S.A. Given that you knew at a young age that you wanted to become a woman and that Mexicans are hostile towards transgender women, you said that you only transitioned recently, so your fear of Mexican society at large has become real and apparent only now. You said that you started your transition in XXXX 2019, as noted earlier, and given that indeed you only commenced XXXX recently, and given that you had a valid Visitor Visa until XXXX 2022 according to your U.S. Visa in your expired Mexican passport, labelled document seven, I find your explanation reasonable and I do not find your failure to apply for asylum in the U.S.A. to be incompatible behaviour with someone fleeing persecution.

[8] In support of your claim, you provided the following documents. A letter from the non profit that you approach to support you, labelled P-2. A letter from your doctor regarding your hormone therapy, which was noted earlier, labelled P-3. And, documents from your pharmacist regarding the drugs you are taking, labelled P-4. I therefore find the following to be credible. You sought the help of a non-profit that supports transgender people in XXXX 2019. You started hormone treatment in XXXX 2019, and that you identify as a woman and you want to be called XXXX from now on and addressed with the pronouns associated with women, such as “she” and “her”

NEXUS

[9] I find that there is a nexus with your fear and one of the five Convention grounds, which is gender. Therefore, your claim is assessed under Section 96 of the Immigration and Refugee Protection Act.

PERSECUTION

[10] The objective documentation supports your allegations that individuals in your circumstance face persecution or death in Mexico. According to the Transgender Law Center of Cornell Law School LGBT Clinic, in tab 6.3 of the National Documentation Package, transgender women regularly experience harassment and hate crimes at the hands of members of the public. The following are only a few examples of the many atrocities that transgender women have experienced in Mexico. A prosecutor in Chihuahua belittled a transgender woman who sought redress for abuse and violence she experienced, asking her “So, why are you not… So, why are you walking in the streets?” In November 2011, in Chihuahua, a group of men kidnapped two transgender women in Hotel Carmen. Days later, the dismembered bodies of these women were found in a van. In June 2012 in Mexico City, the body of a transgender woman was dismembered. Her remains were found abandoned in different neighbourhoods in the Bonito Juares District. In June 2013, a police found the body of a transgender woman who headed a special unit for attention to members of the lesbian, gay, bisexual, transsexual, transgender, transsexual, and intersex community of the Attorney General of the Federal District. In July 2013, two attackers released pepper spray into a crowd of 500 at a beauty contest for transgender women.

[11] Mexico has the second highest index of crimes motivated by transphobia behind Brazil. Reports of hate crimes, particularly transpho … transphobic murders, continue to rise including in Mexico City. Most hate crimes against the LGBT community go uninvestigated. In many instances, police dismiss investigations of homophobic and transphobic murders by cate… categorizing them as “crimes of passion”. Indeed, it is estimated that almost 90% ofc rimes in Mexico go unreported. It follows then, that the actual number of transphobic murders in Mexico are likely much higher. Research conducted by the Immigration and Refugee Board of Canada in 2019, at tab 6.2, reiterates this, that transgender individuals are regularly victims of violent hate crimes that often end in murder. It cites research that indicates the 66% of transgender women, 41% of transgender men, and 41% of intersex people who responded to the survey on LGBTQ+ discrimination regarding the rights to safety and to justice declare they were victims of physical assault. A Trans-respect Versus Transphobia Worldwide Project reported that in 2008 four transgender people were murdered in Mexico, while in 2017 the number was 65.

[12] Tab 6.3 also states that transgender people have limited access to healthcare. A representative of Fundación Trans Amor stated that there are very few cases in which a transgender person who has been denied healthcare has managed to carry out the applicable protocols such as successfully requesting a consultation with an Endocrinologist, a laboratory analysis, or obtaining a hormonal assessment, without proprieting … without providing further details. Sources reported cases of transgender and non-binary people having to stop hormonal treatment against their will or being denied access to gender confirmation medical treatment. The same document also states that transgender people also face a lot of discrimination in the workplace in Mexico. According to the Alliance for Diversity and Inclusion in the Workplace, transgender and non-binary people are less on average than lesbians, gay men, and bisexuals. According to another non-profit, 25% of transgender women respondents engage in sex work. The same source states… The same so… The same source, being the Executive Commission for Care of Victim… of Victims, states that almost all respondents who engaged in sex work were transgender, noting that this may be related to the lack of other employment options by the lack of acceptance. Given all these conditions, the cases of violence and murder of transgender women, the lack of access to medical care, and the lack of employment opportunities that leads transgender women to sex work, I find that the claimant established a subjective fear that is objectively well-founded.

STATE PROTECTION

[13] I find that adequate State protection would not be available to you were you to seek it in Mexico. The objective documentary evidence in tab 6.4 indicates that police are sometimes complicit themselves in the violence that transgender people and sexual minorities face. The U.N. Special Rapporteur on extraju … extrajudicial or arbitrary executions noted that there is an alarming pattern of grotesque homicide of lesbian, gay, bisexual, and transgender individuals, and the broad impunity for these crimes, sometimes with the suspected complicity of investigative authorities. The Executive Commission of Attention to Victims and the Fundación Arcoiris report found that transwomen and homosexuals represent the group most affected by motivated physical assaults.

[14] Furthermore, according to the U.S. Country Reports 2016, civil society groups claim police routinely subjected LGBTQ+ people to mistreatment while in custody. Even in Mexico City, where the Zona Rosa gay district is located, police harassment against LGBTQ+ members remains high. In 2016, a Federal Agency that supports those who have been victim of a federal crime or whose human rights have been violated, reported some forms of abuse by authorities, including delays in or refusal to provide services, violence and insults. In light of the objective documentary evidence, I find that you have rebutted the presumption of State protection, and that adequate State protection would not be available to you in Mexico.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[15] Considering your profile as a trans… as a transgender woman, the documentary evidence of uninvestigated murders of transgender women in Mexico, the rampant discrimination and violence that transgender women face, and the lack of State protection and the complicity of State officials in the violence transgender women go through, I find that it is unsafe for you to lo… to relocate anywhere in Mexico. I therefore find that there is no viable internal flight alternative for you anywhere in Mexico.

CONCLUSION

[16] Based on the totality of the evidence, I find that the claimant is a “Convention refugee”. Your claim XXXX XXXX XXXX is therefore accepted.

All Countries Singapore

2020 RLLR 150

Citation: 2020 RLLR 150
Tribunal: Refugee Protection Division
Date of Decision: January 23, 2020
Panel: Daniel Carens-Nedelsky
Counsel for the Claimant(s): (no information available)
Country: Singapore
RPD Number: MB9-04322
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000075-000082

[1] MEMBER: This is the decision in the claim for refugee protection of XXXX(ph.) XXXX XXXX XXXX under file MB9-04322 and I note for the record that the claimant’s name in her passport is XXXX XXXX XXXX XXXX. The claimant is a transgender woman and prefers to go by XXXX. So, that is how I identified her, but wanted to clarify that distinction. And you are claiming to be a citizen of Singapore and are claiming refugee protection pursuant to s. 96 and s. 97 of the Immigration and Refugee Protection Act.

Allegations

[2] Your full allegations are set out in your basis of claim form and attached narrative. In brief, you fear the treatment you would receive in military detention due to your failure to report for mandatory military service. You also (inaudible) the treatment you would receive during the military service after your detention and your narrative briefly talks also about your fear in general of the treatment you would face by society at large as a transgender woman.

Determination

[3] I find that you are a Convention refugee for the following reasons.

Identity

[4] I find that you have established your personal identity and your nationality, on a balance of probabilities, through your documentary evidence – in particular, your Singaporean passport – as well through your credible testimony.

Nexus

[5] I find that you have a nexus to the Convention as a member of a particular social group, specifically as a transgender woman fearing persecution due to your gender identity.

Credibility

[6] You testified in a spontaneous and forthcoming manner without any inconsistencies or omissions and I therefore accept as true what you have alleged here today and in your basis of claim form.

[7] You credibly testified about your experience transitioning here in Canada and this was consistent with the story you provided in your basis of claim form. You talked about the depression you felt prior to your transition, your first time disclosing that you were transgender to a woman you were dating in high school, about talking with a counsellor and beginning hormone therapy for your transition and how this improved your mood, as well as about your family situation. And you supported this with documents, including two letters from XXXX XXXX XXXX (ph.) that discuss the medical treatments you have received as well as from your counsellor, XXXX XXXX (ph.), describing the improvement in your XXXX health throughout your transition. And both of these individuals speak to their fear of your worsening XXXX situation if you were to return to Singapore.

[8] And based on your credible testimony, I find that you have a subjective fear of returning too Singapore.

Objective Basis

[9] Your most significant fear that you identified was the fear of the treatment you would receive if you were to return and were forced into detention for having failed to appear for the mandatory military service as required. And I find that this fear is supported in the documentary evidence.

[10] And so, I turn first to the question of whether you would in fact be considered a deserter. And here, you submitted evidence, C-6, a document from XXXX XXXX XXXX (ph.), a Singaporean native who is a professor at XXXX XXXX in China, and he states – sorry, I jumped forward. The first question is whether you would in fact be required to engage in mandatory military service, which is required of all men in Singapore. And so, the letter from XXXX XXXX XXXX that I just began states that,

“Singapore legally recognises the sex change that post-op transgender individuals have gone through.”

[11] And so, then he writes that the treatment that you would likely face depends on whether you are classified as female or male, and that if you are still considered by the Singaporean government as male, you would continue to be obligated to enlist and serve your mandatory time in the military. And this is also supported by the quick response for information that I disclosed that was a research undertaken by the IRB. It cites a 2016 Guardian article from the United Kingdom that states that,

“A transgender woman who had not undergone reassignment surgery was expected to continue to participate in military service, although that those who had undergone reassignment were not.”

[12] And the same quite response includes a document from what I understand to be a Singaporean Transgender Support website. It’s not an official documentation, but nonetheless evidence that states that in order to legally change your sex in Singapore, you have to get a medical examination report form, filled by a medical expert, that says that you have “completely changed your genitalia from male to female or vice versa. And, again, not the most reliable of documents, but I found that was generally consistent with the rest of the information in the package regarding how Singaporean society and official institutions approach the issue of transgender individuals.

[13] And in your case, you credibly testified and provided documentary evidence to state that you had started hormone therapy and transitioning socially, but that you have not had any gender affirmation surgery.

[14] And so, I therefore do find that, on a balance of probabilities, you would legally be considered a man by the Singaporean military and would be forced to enlist.

[15] And so, this now turns to the second question of whether you would likely face detention or jail time as a result of your failure to enlist. And a 2015 Response to Information Request at Tab 8.2 of the National Documentation Package references a 2012 statement by the Ministry of Defence that states that Ministry will “‘press for … custodial sentence[s] on … defaulter[s]’ based on the length of the default period…” And in this case, you would refer – meet the situation set in there as a shorter jail sentence for someone who has defaulted in a period in excess of two years but is young enough to serve your full operational service.

[16] The same RIR is somewhat unclear on the total number of individuals who in fact do serve time. It references a number of deserters in the low hundreds, then references another news article that says only five individuals are facing it. It references a further one that states nineteen conscientious objectors, who are all Jehovah’s Witnesses, are in fact in jail for failing to doit.

[17] I asked you about this document and you very credibly testified that your experience growing up in Singapore was that your sense is that individuals who did evade their service were in fact often prosecuted and were forced into jail times [sic]. I note that the same RIR references two specific cases where individuals were sentenced to jail time and successfully appealed and the Court overturned it and substituted a fine.

[18] I note that XXXX XXXX XXXX letter at C-16, as well as some of the other documents, do suggest that the default rule would in fact be jail time served for failing to enlist.

[19] And so, considering all of this evidence as a whole and that the Ministry of Defence itself has indicated that their approach is in fact to prosecute and push for jail time for those who have avoided enlisting for more than two years, a situation you find yourself in now, I find that there is a serious possibility that you would be forced to serve as a result of your failure to enlist as required.

[20] And so, I now tum to the treatment that you fear you would receive if you were to serve (inaudible) and there is limited information based on the experience of transgender individuals in Singapore. In fact, the Quick Response contains no information on this, saying that it [sic] just could not find any information. And I note that a partial explanation for that is in the quick response itself that states – it cites an article that states that the Singaporean government does not keep official statistics on transgender people, which makes it hard to categorise precisely the harms that they face. And so, this is, to my understanding, a very clear reason why it’ s hard to get specific information of this.

[21] But your counsel put forward a number of harms that you specifically fear would happen if you were to go to prison and these include being forced to shave your hair, be referred to by your male name, be forced to wear male clothes, be refused the hormones you are currently being provided, a significant risk of harm to your psychological well-being, as well as a significant risk of mistreatment by fellow inmates as well as guards.

[22] In support of the first three risks, your counsel pointed to XXXX XXXX XXXX letter as well as Document C-7, that XXXX XXXX XXXX refers to, titled “Life in the Barracks: What You Can Expect,” and this is from the Criminal Justice Club at the Faculty of Law at the National University of Singapore. Again, although not a perfect source, it is the best evidence I have available and it discusses exactly those harms that counsel alluded to as to the treatment that you would expect for failing to enlist, including having to shave your head, having to share a small cell with two other cisgender men.

[23] In support of your XXXX well-being, I have the letters from XXXX XXXX XXXX and your counsellor that discuss the extremely harmful effect the situation would have as well as I have your own credible testimony about how you feel that such a situation would affect you if you were forced to shave your head, if you were force to spend time in the situation.

[24] And regarding the mistreatment from fellow inmates, you have submitted documents from the US at C-8, from the UK at C-9, and from Australia at C-12, that all discuss the situation of transgender individuals and, more specifically, often transgender women in prison. And these documents all discuss the very high risk of physical and sexual violence that transgender women face in prison from fellow inmates as well as from the guards. And, I’ve noted, there is no evidence of this directly in the documentary evidence for the Quick Response.

[25] And I now refer to the report by Ben Lee Yee (ph.), Invisible, Yet Visible. In the Quick Response, it states that there are no official statistics on transgender people. That makes collecting the data on the situation of trans individuals very difficult. And I appreciate there is a significant cultural difference between generally Western societies and Singapore. Nonetheless, I find these articles highly persuasive in terms of what the situation could reasonably be expected to be.

[26] And furthermore, the risk of mistreatment is supported by the pervasive negative attitudes in Singapore towards LGBT individuals. And in support of this is C-14, a letter from Professor Yu (ph.), which references a recent report that states that only 11 per cent of Singaporeans approve of same-sex relationships, and this is a significant increase from an earlier report, but still a very low number.

[27] As well as the claimant’s document at C-12, a 2012 report regarding LGBTQ individuals in Singapore – and it notes – that report consistently finds that trans women, of all LGBTQ individuals, faced the highest incidence of harassment and discrimination against an already marginalised group.

[28] And so, considering all of these documents together, the specific standard rules that you would be forced to follow, the documentary evidence that Singapore is a very by-the-book and rules oriented society that very rarely is able to make exemptions for individuals who don’t fit the specific neat boxes, thus you would be forced to follow all these situations.

[29] The very significant psychological and emotional harm that these incidences would put you through as well as the very real risk of physical and sexual violence that such a situation would put you in – I find that, overall, there is a serious possibility of persecution and therefore that there is an objective basis to your claim.

State Protection

[30] The harm that you fear is by the State of Singapore itself and, as discussed above in the documents, that it is in fact often the prison authorities are unable or unwilling or active persecutors of trans women in prison. And I find, on a balance of probabilities, that adequate State protection would not be available to you if you were to return.

Internal Flight Alternative

[31] Singapore is a very small country and its laws are in effect across the whole country. And so, I find that you would face a serious possibility of persecution throughout Singapore and therefore that you do not have an internal flight alternative available to you.

Conclusion

[32] I find that you face a serious possibility of persecution as a result of being a transgender woman and being forced to enlist in military service and the treatment you would receive, likely receive, in the detention centre.

[33] As I found that you face a serious possibility of persecution for those reasons, I have not considered the risk that you would face in serving in the military or from society at large after.

[34] And, overall, your claim is accepted.

— Decision concluded

All Countries Uganda

2019 RLLR 151

Citation: 2019 RLLR 151
Tribunal: Refugee Protection Division
Date of Decision: December 5, 2019
Panel: Chad Prowse
Counsel for the Claimant(s): (no information)
Country: Uganda
RPD Number: VB9-00024
Associated RPD Number(s):
ATIP Number: A-2022-00210
ATIP Pages: 000164-000168

— DECISION AND REASONS BY THE MEMBER

[1] PRESIDING MEMBER: XXXX XXXX, I’ve considered your testimony and the other evidence in this case and I’m ready to render my decision orally. I would like to add that in the event that written reasons are issued, they will reflect those that I’m giving you now.

[2] XXXX XXXX XXXX is a citizen of Uganda who claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3] Her complete allegations are contained in her Basis of Claim form and narrative. A brief summary follows.

[4] The claimant worked as an XXXX XXXX XXXX XXXX at the XXXX XXXX Research Institute, the XXXX, from 2014 onwards. Beginning in XXXX 2018 she secretly began providing XXXX to clients at her home in XXXX XXXX The clients were referred to her by XXXX XXXX (ph) an LGBT activist in Uganda working at XXXX XXXX XXXX XXXX XXXX.

[5] The claimant believed in the work that XXXX and other activists were doing in Uganda, advocating for human rights for LGBT persons. This is why she got involved in this work.

[6] The claimant was subsequently accused by her community, including the local village counsel, of accommodating LGBT persons and teaching immoral acts due to her counseling sessions out of her home.

[7] On the XXXXof XXXX XXXX 2018 the claimant was arrested by a police officer accompanied by village security personnel. She was released on a police bond. Following her release she was harassed by members of the community and perceived to be a lesbian. She received death threats.

[8] She moved with her family to another community, XXXX XXXX, for their safety. Shem found an agent through a friend who helped her get a Canadian visa which was issued on XXXX XXXX 2018.

[9] The claimant is afraid that she will be arrested and prosecuted in Uganda on the false charge of promoting immoral acts. She’s also afraid of becoming the victim of mob justice as a result of her work with the LGBT community or as a perceived lesbian.

[10] The determinative issue in this case is credibility.

[11] The claimant’s identity as a citizen of Uganda is established by her testimony and the supporting documentation filed, including a certified true copy of her passport.

[12] With respect to credibility, when a claimant swears to the truth of certain allegations this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. Overall, I found the claimant to be a credible witness.

[13] For the most part, she testified in a straightforward manner and there were not material inconsistencies or omissions in her testimony or contradictions between her testimony and the other evidence before me that have not been explained.

[14] There were a few omissions in the claimant’s testimony and her testimony occasionally lacked detail; however, I agree with counsel that these issues were generally minor and/or could be explained by her serious nervousness during the hearing.

[15] A few questions arose during the hearing about a number of the documents that the claimant provided in support of her claim, principally the Uganda police bond form. During the hearing I noted that the document provided by the claimant is different in form and content than the contemporary example provided in the NDP. Additionally, some of the printed details on the form appear to be inaccurate relative to objective evidence about the Criminal Code and Procedures in Uganda. Moreover, there is a conspicuous spelling error on a printed part of the form.

[16] Counsel addressed a few of these issues in her submissions. For example, she produced a wide variety of purported Uganda police documents as a result of a Google search; however, it is unclear that any of these are from an official source or are contemporary with the claimant’s allegations. Therefore I prefer the document in the NDP.

[17] While it’s far from clear that the bond form is fraudulent or improperly issued I assign little weight to the document as a result of these concerns.

[18] The claimant also produced a news article from the Red Pepper newspaper, apparently corroborating the basic details of her narrative.

[19] While the research produced by the Research Directorate about this publication, that is the Red Pepper, indicates that the paper is a purveyor of, to use counsel’s words, salacious news articles which are not necessarily grounded in fact, overall I find that this evidence actually supports her case.

[20] I accept that this is a genuine so-called news article that was actually published in Uganda.

[21] I agree that it is implausible that the claimant would plant this story herself given the harm that this would subject her and her family to and the fact that it exists is likely evidence of the campaign in Uganda to our and/or harm her.

[22] Notwithstanding the few identified credibility issues in this claim, I find that the overwhelming burden of evidence on file which includes letters of support from NGOs and other persons, reliable evidence of her employment and her credentials and so on and so forth, is reliable and corroborates her claim and central allegations.

[23] On a balance of probabilities I find that the claimant has established that she was an XXXX XXXX XXXX XXXX and activist in Uganda; that she was threatened and effectively chased out of her community because of her views about and acceptance of LGBT persons; and as a perceived lesbian.

[24] The available country evidence in the NDP together with the evidence disclosed by the claimant establishes that there is an objective basis for her fear of persecution. I accept counsel’s submission that the claimant has a well-founded fear of persecution on the basis of imputed membership in a particular social group, in addition to on the basis of political opinion.

[25] According to the Chairperson’s Guideline 9, individuals may be subjected to persecution by reason of their perceived or imputed SOGIE. Examples may include individuals who do not fit stereotypical appearances or conform to socially accepted SOGIE norms may be perceived as individuals with diverse SOGIE when they are not.

[26] Those advocating for or reporting on SOGIE rights may be perceived to be individuals of diverse SOGIE and individuals who provide support for individuals of diverse SOGIE, for example, partners who remain with individuals of diverse SOGIE through, for example, gender re-assignment surgeries, may be perceived to be individuals with diverse SOGIE.

[27] I find that some of these circumstances apply to the claimant.

[28] Additionally, the Chairperson’s Guideline states that in addition to their status as an individual with diverse SOGIE, political activism by an individual to promote SOGIE rights may put that individual at increased risk of persecution. In other words, persons may also have a well-founded persecution by reason of political opinion when they are promoting SOGIE rights.

[29] I find that on a balance of probabilities the claimant falls into that category or would be perceived to be.

[30] In Uganda, same sex sexual activity is criminalized under the Penal Code which prohibits unnatural offenses and acts of gross indecency. Popular support for new laws imposing harsher punishments for persons believed to be homosexual culminated in the anti- homosexuality bill of 2009.

[31] While the anti-homosexuality bill of 2009 was annulled in 2014, meaning that the promotion of homosexuality is no longer criminalized, Ugandans are no longer seemingly required to report gays and lesbians to authorities, homosexuality remains a criminal offense under Uganda’s Penal Code.

[32] The United States Department of State report on Uganda identifies violence and discrimination against marginalized people, including LGBT persons as one of the country’s greatest human rights problems. According to the United States Department of State LGBT persons face discrimination, legal restrictions, societal harassment and violence, intimidation and threats. There’ s considerable evidence, as counsel pointed out, that LGBT activists, that is persons who are actively advocating for the rights of LGBT persons – and I would put the claimant in that category – also face a serious possibility of persecution.

[33] The UK Country of Origin report for Uganda on sexual orientation and gender identity, for example, refers to a report by Sexual Minorities Uganda, SMUG, who in their 2018 report stated that health workers still carry out forced anal examinations when the Uganda police forces individuals who have been arrested for homosexuality, sodomy or carnal knowledge against the order of nature to be examined.

[34] The police were once again the biggest violators of the rights of LGBT persons in Uganda in 2017 according to the same UK Home Office report although there were much fewer violations perpetrated by the police in this year than in any previous years. A high propensity to violate the rights of LGBT persons is easily explained by the fact that the police often interfaces more with LGBT persons, especially when they’ve come into conflict with the law and the limited levels of knowledge and understanding of LGBT person issues among the members of the police force.

[35] Human Rights Watch noted in its November 2016 submission to the Universal Periodic Review that the government has increasingly sought to curtail the work of NGOs workingon topics considered sensitive to the government such as governance, human rights, land,oil, and the rights of LGBT persons. Tactics include closure of meetings, threats, andheavy-handed bureaucratic interference.

[36] Additionally, concerns remain that the 2016 NGO law effectively criminalizes legitimate advocacy and the rights of lesbian, gay, bisexual transgender people, LGBT persons. An Independent article – an article in The Independent – Gay Rights Activists Defy Again the Law by Publishing New LGBTI Magazine, dated January 2015, stated gay rights activists in Uganda have risked detention by police, threats of violence and death threats to publish a new magazine showing the stories of the country’s lesbian, gay, bisexual, transgender and intersex community.

[37] There are many other similar references in the NDP.

[38] With respect to state protection and internal flight alternative, I find the claimant has rebutted the presumption of state protection and that she does not have a viable internal flight alternative. In this case, the state is either the agent of persecution or effectively grants impunity to the non-state agents of persecution.

[39] The evidence shows that social attitudes towards LGBT persons and activists are more or less uniform across the country. While the claimant is not herself a lesbian, she is perceived to be one in Uganda due to her XXXX XXXX XXXX XXXX work with members of her community which, in itself, is rooted in her political opinion about human rights of LGBT persons.

[40] Over and above this, the objective evidence shows that her works as an LGBT activist, once again rooted in her political opinion, puts her at risk from state and non-state agents.

[41] Therefore, having considered all of the evidence before me, I determine that there is a serious possibility that the claimant would be persecuted in Uganda on grounds of imputed membership in particular social group and political opinion. Therefore, I find that the claimant is a Convention refugee and I accept her claim.

— PROCEEDINGS CONCLUDED

All Countries Nigeria

2019 RLLR 150

Citation: 2019 RLLR 150
Tribunal: Refugee Protection Division
Date of Decision: May 28, 2019
Panel: Joshua Prowse
Counsel for the Claimant(s):
Country: Nigeria
RPD Number: VB8-01902
Associated RPD Number(s):
ATIP Number: A-2022-00210
ATIP Pages: 000156-000163

— PROCEEDINGS COMMENCED

[1] PRESIDING MEMBER: This is the decision in the claim for refugee protection made in File VB8-01902. That is the claim of XXXX XXXX XXXX and her two children.

ALLEGATIONS

[2] The specifics of this case are stated in the narrative of your Basis of Claim form. In short you state that you left Nigeria because of history of domestic violence that you faced as well as risk of female genital mutilation or FGM for the minor Claimant who is part of this proceeding.

[3] In assessing this case, I considered the following Chairperson’s guidelines. Guideline 3 on child refugee claimants. Guideline 4 on women refugee claimants.

DETERMINATION

[4] I find that you are Convention refugees.

IDENTITY

[5] Your personal identity and your identities as a citizen of Nigeria are established by your testimony and the supporting documentation filed, principally copies of your passports which are on file at Exhibit 1.

OBJECTIVE EVIDENCE ABOUT COUNTRY CONDITIONS

[6] I will start assessing your allegations that you face a serious possibility of persecution in Nigeria by examining the context of the country conditions relevant to your situation. There are a number of documents about female genital mutilation, it’s prevalence in Nigeria and the state response to it. I note the Response to Information Request that is on file entitled Prevalence of female genital mutilation among the Urhobo including consequences for refusing to undergo this procedure, particular pregnant women. State protection available. And that document which makes a number of general comments and reviews evidence about the response to FGM including in Lagos area. And it states that FGM is still deeply entrenched in the Nigerian society. It describes it as widespread and rampant and it notes that according to one source 41 percent of adult women in Nigeria have undergone some form of FGM and that FGM is more prevalent in the southern states of Nigeria.

[7] A question also arises, and I’ll touch on this a little bit later but partly now, about the extent of the legislation and state response involving FGM. There’s a document on file at 5.32 of the National Documentation Package from the United Nations Children’s Fund, UNICEF entitled Country Profile FGM in Nigeria, October 2016. It’s also from an organization 28 Too Many which is an anti-FGM advocacy organization. And it notes at page 3 of that document that more than 20 million women and girls have been cut or are at risk of being cut and it discusses the nature of the legislation relating to FGM in Nigeria. At page 52 of that document it notes that while there is federal legislation, which is referred to by it’ s acronym the VAPP, V-A-P-P. That is a federal law and therefore it’s only effective in the federal territory of Abuja and that while each individual state in this case, Lagos, where the Claimants’ were last residing have passed legislation. Though the nature of that legislation varies and in some states there isn’t specific legislation related to FGM. In Lagos there is but there are reportedly significant problems with it’s enforcement.

[8] The US Department of State reports that police often refuse to protect women when “the level of alleged abuse did not exceed customary norms in the area.” And that generally speaking effective enforcement of such laws has been wanting.

[9] There’s a second aspect to this claim which involves violence, domestic violence being inflicted upon the Principal Claimant and her son and this something that has been ongoing and has reportedly affected them for a number of years. We have information on file in the National Documentation Package about the prevalence of domestic violence and recourse and options available to those who experience it. For example there’s a Response to Information request entitled Nigeria – Domestic Violence including Lagos state legislation recourse, state protection and services available to victims. And it discusses the fact that domestic violence as in, perhaps both countries, is quite prevalent but it also discusses a situation in which the state response available for those who experience domestic violence is quite limited. That there are very few services such as shelters available in the country and it describes the situation in which authorities such as the police and the courts are generally unaware of many key laws that are on the books but effectively unenforced.

[10] Given this evidence, I conclude that there is an objective basis to the allegations before me. The risk that has been described is consistent with information on file about the treatment of others in Nigeria.

DO YOU FACE A SERIOUS POSSIBILITY OF PERSECUTION?

[11] A claimant has the burden to induce evidence which shows they face a serious possibility of future persecution. This must be credible and believable evidence. Given my conclusion about the general country conditions, the questions for me to assess in order to determine these Claimants individual risks were first is it credible that they, in particularly the Principal Claimant have been subjected to domestic violence while they have been in Nigeria. And secondly is there a forward looking risk of circumcision for the female minor Claimant and violence attendant to that circumcision for the other Claimants should they refuse to partake in the procedure. And in general when assessing these issues I will say that I found the Claimants to be credible witnesses and I therefore believe what they have alleged in support of their claims.

[12] In assessing credibility in a refugee claim we start from the presumption that claimants and their allegations are credible. This presumption reflects the fact that claimants are providing sworn testimony and that circumstances facing fleeing refugees can compromise their ability to present corroborative evidence. In assessing whether a claimant’s statements are believable we consider whether the facts presented are detailed, plausible and consistent.

[13] These criteria are met in this case as the Claimants relayed their testimony convincingly both in writing and orally. And as I’ve stated their allegations are also consistent with information on file about country conditions.

[14] I asked some specific questions turning first to the allegations about domestic violence. Their testimony was consistent about this. The Principal Claimant’s son testified about what he has observed and what he fears in this respect. There’s corroborating documents on file including from a friend of the Principal Claimant who corroborates the statements about the domestic violence that this family has been subjected to over a significant period of time at the hands of Principal Claimant’s ex-spouse.

[15] And the Claimants state that they ran away from this ex-spouse about a year before leaving Nigeria and then coming to North America. I asked a number of questions about this. The Claimants continued their schooling over this period. How were they able to afford this sort of schooling? How were they able to afford visa applications? How were they able to afford international travel including to Benin then the United States during this period. And all of the Claimants’ answers on in terms of those types of questions were satisfactory, in my view. The Claimants received financial aid from a comparatively wealthy friend of the Principal Claimant who the Principal Claimant has known since she was a very young girl. This friend took the Principal Claimant and her children in. Supported them and facilitated their exit from the country. The minor Claimants did not need to pay for schooling at this time as they were attending a state school and in fact they switched what school, for instance the male child was in around the time of their move away from the ex-partner’s home and towards Lagos and they are completely consistent between their testimony and the other documents on file in this respect.

[16] The male Claimant says he last saw his father in 2015 and that the family went to the United States because his dad wanted to circumcise his younger sister. Which takes me to the second question that I considered in terms of the credibility of specific allegations. That’s the risk of circumcision for the minor Claimant in these proceedings. I have the Claimant’s sworn and consistent testimony in this respect that the agent of persecution inflicted and arranged to inflict FGM on another one of the Principal Claimant’s children. That child died from the procedure. I have corroborating documents related to that death. Including a medical report which describes it in detail. And further more this is a claim in which I have a number of corroborating documents related to the ongoing risk to these Claimants and the way that the principal agent of persecution has pursued them and in their absence from Nigeria has pursued the Principal Claimant’s friend who was instrumental in facilitating their exit from the country. I have a medial report at Exhibit 5 regarding injuries that this friend suffered as recently as last month as a result of thugs that the agent of persecution hired to pursue her and attempt to obtain information about the Claimants whereabouts. I have a police report that this individual filed about the fact that she was pursued by these thugs which names the principal agent of persecution in the police report. I have a detailed Basis of Claim amendment which includes corrections and was updated to reflect recent circumstances and I also have a number of statements on file including an affidavit from the Principal Claimant’s friend, XXXX (ph.). And I have bank statements, psychotherapist’s letter and a sworn declaration.

[17] In sum I accept that these Claimants face a violence at the hands of the Principal Claimant’s ex-partner who is seeking to inflict FGM on the minor Claimant and who has generally been abusive towards both the Principal Claimant and the children of their relationship and is not content to see these individuals move on from the relationship. Given the past persecution, the persecution of those similarly situated to them, I conclude that there is a serious possibility of these Claimants being persecuted should they return to Nigeria.

DOES THE HARM THAT YOU FACE UPON TO NIGERIA AMOUNT TO PERSECUTION?

[18] The harm that a refugee fears must be persecution. And our refugee law, persecution can be considered the sustained or systemic violation of basic human rights. The circumstances that you face implicate in a sustained or systemic manner a number of such rights. This includes the right to life which is illustrated by the fact that one of the Principal Claimant’s children already died when FGM was inflicted upon her. This is protected in Article 6 of the Internal Covenant on Civil and Political Rights which provides that every human being has the inherent right to life. This is also relates the freedom from domestic violence and gender based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men. And this is discrimination within the meaning of the Convention on the elimination of all forms of discrimination against women.

[19] A situation involving such rights violations will be persecutory if it has substantially prejudicial effects for persons concerned. And it’s clear that that is the case here. The Claimants write eloquently in their narrative at paragraph 48 in that “I am afraid to return to Nigeria because I know my partner and his family are still looking for me and may children. I know that if XXXX (ph.) found us he would harm or mistreat us and force my daughter to be circumcised. For these reasons I seek protection in Canada.

[20] Given these statements that the Claimants fear returning to Nigeria and their description of the harm that they have experienced and have anticipated upon return, I find that they subjectively fear returning to Nigeria and I conclude that the harm that they fear about is persecution.

[21] When reaching this conclusion I did consider the fact that they spent some time in the United States prior to claiming in Canada. In fact they spent a significant amount of time there and ultimately stayed beyond the expiry of and validity period for their US visa. I don’t find that I should draw a negative inference about the credibility of the Claimants’ subjective fears of persecution in Nigeria, at that point, for several reasons. First two of the Claimants are quite young at that time. A minor Claimant and another who just reached the age of majority of that period and then for the Principal Claimant she’s quite a vulnerable individual. She does — she’s functionally illiterate, has no history of schooling in Nigeria. Was dependant upon others for advice and was deterred from claiming apparently for financial reasons. I find that in the circumstances the Claimants have amply and reasonably explained their failure to claim refugee protection in United States at the time that they did.

ARE YOUR FEARS BY REASON OF ONE OR MORE OF THE GROUNDS IN THE REFUGEE CONVENTION?

[22] In order to qualify for refugee status under the Refugee Convention, an individual must demonstrate that they have a well-founded fear of persecution “for reasons of race, religion, nationality, membership in a particular social group or political opinion.”

[23] I conclude that this requirement is met in your cases as your fears of persecution in Nigeria relate to the Convention grounds first of particular social group related to the particular social group of women. And second for the male Claimant the particular social group of the family. It’s clear that the domestic violence that the Principal Claimant has experienced and the female genital mutilation that the minor Claimant stands to experience, is something that is disproportionally inflicted upon women and also it is something where the state response is disproportionally anemic because of the gender of the victims of those practices.

STATE PROTECTION

[24] The refugee definition specifically requires that each refugee establish that they are “unable or by reason of their fear, unwilling to unveil themselves of the protection of their country.” It is the duty of all states to offer protection to their nationals. Refugee protection only becomes available when a claimant’s country of nationality fails in the performance of this duty. These Claimant’s have evidence which demonstrates that this requirement is met in their cases as they are unable to avail themselves of the protection of their country.

[25] And I have a number of documents about this. But with respect to the enforcement of anti- FGM legislation in Nigeria the Response to Information that I quoted earlier on the prevalence of female genital mutilation among the Urhobo states that — has a bunch of more general statements about FGM, starting at page 6 of that report. It states that no cases of legal prosecution of people who have been subjected to girls or women to FGM have been documented in Nigeria. And that even in Nigerian states that have legal provisions in place to prosecute the perpetrators of FGM either under general or specific criminal laws, prosecutions are very rare.

[26] Counsel provided a summary of some of the country conditions with respect to state protection in his submissions. He noted that the UK Home Office report at 1.7 of the National Documentation Package indicates that the effectiveness of state protection is undermine by a lack of resources, by corruption and that women face pervasive discrimination in attempting to access such state protection and that the bribery rate for police among those who wish to access police protection is nearly 50 percent. And I find that this is particular relevant given that fact that this agent of persecution is connected to politicians in the country.

[27] In short there is clear and convincing evidence before me that Nigeria will not afford these Claimants the protection we expect of a state and that they are consequently unable to obtain adequate protection from their country.

INTERNAL FLIGHT ALTERNATIVE

[28] When considering whether you have an internal flight alternative we ask whether there is a part of your country in which you would not face a serious possibility of persecution and whether it would be reasonable to expect you to move there. I conclude that you do not possess a viable internal flight alternatives in your country.

[29] This is for several reasons. In terms of the Principal Claimant, in my view, there are evident issues related to the reasonableness of any internal flight alternative. She is illiterate, uneducated, single women with children without any work experience outside of the home. However this is tempered by the fact that she would be relocated with her adult child who is in his early XXXX XXXX male child with above average education in Nigeria and in my view the analysis of the reasonableness of any relocation would be complicated by that fact. However it’ s not necessary for me to consider the reasonableness of relocation in this case because I find the viability of an internal flight alternative fails on the first prong of the analysis. The internal flight alternative location identified in this case, Port Harcourt, is one where there would remain a serious possibility of persecution for these Claimants by reason of the fact that the agent of persecution would be able to track them down and locate them in Port Harcourt through the Claimant’s friend who resides in Lagos.

[30] The Federal Court jurisprudence is clear that this Board cannot expect an individual to have to make a secret return to their country or a return where they are excluded from their support groups, from their friends, for their family members. Counsel directed me to the case of Ohakam 2011 FC1351 and I find that the principal coming out of that case is directly applicable to the circumstances before me. The Principal Claimant’s best friend, one who she is in frequent contact with, is located in Lagos while this friend has not divulged information about the Claimants’ whereabouts to date, it cannot be expected that this friend would be able to refrain from doing so indefinitely. Especially in light of the evidence before me that the agent of persecution has engaged in an ongoing campaign of harassment, threats and the hiring of thugs to intimidate her in order to obtain such information. As these Claimants would not be able to escape a serious possibility of mistreatment by internal relocation, I conclude that they do not possess a viable internal flight alternative in Nigeria.

CONCLUSION

[31] In conclusion I find that the Claimants are Convention refugees and I accept their claims. That concludes today’s hearing. We are now off the record.

—PROCEEDINGS CONCLUDED

All Countries Romania

2019 RLLR 149

Citation: 2019 RLLR 149
Tribunal: Refugee Protection Division
Date of Decision: December 2, 2019
Panel: Shamshuddin Alidina
Counsel for the Claimant(s): Pawandeep Johal
Country: Romania
RPD Number: TB9-10780
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000127-000132

DECISION

MEMBER: You asked me to address you as, Sir.

I have all the evidence that I need to make a decision and I have a decision for you and if you need the decision in writing, you can ask the Refugee Board to give it to you.

If you elect to do that, I reserve the rights to make grammar error corrections, syntax error corrections and to incorporate documentary evidence and case laws where deemed necessary.

So, I’m going to address the name that is given in the file. Okay?

CLAIMANT: Of course. I understand. For legal purposes. Yes.

MEMBER: Yeah.

[1] XXXX XXXX, a citizen of Romania, claims for refugee protection pursuant to Sections 96, 97(1)(a) and 97(1)(b) of the Immigration and Refugee Protection Act, IRPA.

[2] The claimant alleges that, at the time he left Romania, he was not sure of his sexual orientation. He knew that he was not a female.

[3] After he came to Canada for education, he married a female called, XXXX XXXX. Both of them travelled as a couple to Romania and while in Romania for one week, they had difficulties. They were discriminated against and ill-treated, particularly when the claimant went to use washrooms and other

public places.

[4] His family also looked at him differently and he had difficulties with his family too, that being the fact that he was not being accepted as what he was.

[5] The claimant alleges that should he return today to Romania and be what he is, he would be persecuted. He would be discriminated in every walk of life. His identity would not be accepted. He would not be accepted in the employment fields, housing, healthcare and even the Counsel says he could not work with the kids because his identity is different.

[6] Should he seek help from the police, they would not take him seriously.

[7] He decided to seek for refugee protection because he felt that, should he return to Romania, he would be persecuted.

[8] Basically, this is a sur place claim which is the realization of the danger of being what he is, after leaving Romania.

[9] At the outset of the hearing, the claimant indicated that his identity is not being a female. He would love to change his name to XXXX as a first name and XXXX to be the second name and the last name to remain, XXXX XXXX because XXXX is neither a male name nor a female name. It can be used both, both ways.

[10] The claimant indicated that should he do that, he would not recognized in Romania. He would not be able to change that name with the Romanian authorities.

[11] He also testified that, should he do that, he would not be able to even change his documents.

[12] His same-sex marriage with XXXX would not be recognized. Although, today he is separated from her but he is in a relationship with another female.

[13] The claimant provided documentary evidence in Exhibit 6 which gives his true identity in so far as his sexuality is concerned. The claimant, for the sake of the testimony today in the hearing, said that he could be addressed as a “he” and a transgender. He says, in reality, he was a non-binary. In that, he says, he is neither a female nor a male.

[14] He testified that should he return – should he stay in Canada and be allowed to stay in Canada, he would have his breasts removed while he would remain the other female parts and that would be his identity.

[15] He testified that he would not be able to do that in Romania. They would remove all the parts of the female and make him a male or leave all the parts of the female and let him be a female. He is not comfortable with that identity of being a total male or a total female.

[16] Therefore, in Exhibit 6, the Counsel has provided us documentary evidence of the definitions of a non-binary person.

[17] The claimant testified that he had no reason to seek any protection in Canada when he arrived, since he came, simply for education. Education took a little bit longer but then his sexuality was still not known to him. He was in a state of confusion and he got married to a female.

[18] He then decided to go to Romania because his father was not well and while he was in Romania, he testified that his family began not accepting him as a binary. The society in general was not accepting him. He went to use a male washroom and he had difficulties.

[19] He returned to Canada and applied for refugee protection knowing that he could not live in Romania.

[20] Therefore, based on the evidence that is adduced, the panel finds that the claimant is neither a female nor a male. The claimant is a non-binary and the question remains what would happen to people like him who would perhaps be called a transgender if he returned to Romania. That’s the closest thing that they would do.

[21] The objective evidence is very important in this case because it’s a sur place claim so the panel examined the documentary evidence.

[22] In so far as the claimant’s testimony is concerned, the claimant indicated that should he return to Romania, his gender identity would not be accepted. That’s the first thing. His name changed to XXXX and XXXX, as a second name, would not be acceptable to the authorities.

[23] He testified that he would have serious problems looking for a job because his identity would not be accepted. He would have problems seeking healthcare in Romania. He would have difficulties obtaining housing for rent.

[24] His family has stopped accepting him as what he is.

[25] The panel in determining objective evidence went through a number of documentations that are very clear. The DOS Report indicates that the law in Romania prohibits discrimination based on sexual orientation. In this case, the claimant has a sexual orientation which is not mentioned anywhere.

[26] The NGOs reported that societal discrimination against LGBT persons was common and there were some reports of violence against them. The claimant did face violence while he was there.

[27] Discrimination in employment occurred against the LGBT people.

[28] Although this year, the Pride parade with some 5,000 participants was without an incident in Bucharest, there were a hundred people who took part in a counter-protest.

[29] The law governing legal gender recognition for transgender persons was vague and incomplete. In some cases, authorities refused legal gender recognition unless an individual had first undergone sex re-assignment surgery.

[30] Access to adequate XXXX services was also limited because some XXXX refuse to accept transgender patients. In this case, the claimant is neither a male nor a female nor a transgender. He is a non-binary and there is absolutely no mention about the term non-binary in any of the documentary evidence that we have before us, either from the NDP or from the claimant’ s counsel.

[31] However, the panel will cite some documents because Counsel has provided a number of documents which indicates what happens to people like the claimant in Romania. This is the news, the latest one, page 109 of Exhibit 4 and that indicates the Romania has passed no legislation recognizing or promoting gay rights since the Balkan country joined the EU 12 years ago and since it decriminalized same-sex relationships 18 years ago. As a result, gay couples and transgender people still face huge problems as they try to go about with their lives.

[32] Documentary evidence indicates in regards to Romanian LGBT millennials on page 112, in Romania – sorry, in a new report on Romania, the Counsel for Europe’s Commission Against Racism, Intolerance, expressed concern about a number of issues, notably the widespread problem of racist and intolerant hate speeches and inadequate responses of the criminal justice to hate crimes and discriminations against Roma and LGBT persons, although it notes that some progress has been made.

[33] Documentary evidence on page 115 indicates that, temporary passports were issued to Adrian Common(sp)[1] , after he was denied new passports. He was issued a temporary passport instead.

[34] Documentary evidence of April 2017 indicates, for many transgender people in Europe something as simple as changing their names or gender on a driver’s licence requires an invasive and offensive medical procedure. Of the 47 countries currently signed up to the European Convention on Human Rights, 22 countries require transgender people to undergo sterilization before allowing them to change their names or gender on a legal document.

[35] The claimant indicated he would have to do that because he is not who everybody thinks he is.

[36] Page 19 of Counsel’s objective document says, that 6 in 1 0 Romanians would not want to have a gay family member and 29% would not want a Roma relative. This is according to the survey.

[37] As such 74% of those surveyed said, they don’t trust homosexuals and 72% said they don’t trust Roma immigrants.

[38] The survey revealed a high intolerance towards homosexuals.

[39] The next page, 21, indicates that more than 2/3 of the respondents don’t agree with gay marriages and 60% disagree with the idea of civil partnerships.

[40] The present cases, this is page 41, the present cases concern two trans men who claim that their right to privacy and right to found a family have been violated. The legal framework on legal gender recognition in Romania remains uncertain subjecting trans people to [2:11:56] judicial procedures and pathologizing and invasive medical requirements when they request for recognition of their gender identity. The claimant indicate that he would have to change either totally to male or totally to female.

[41] Documentary evidence on page 46 clearly indicates that the article which argues that Christians are suffering religious discrimination at the hands of the pro-LGBT campaigners comes as the country prepares for a referendum next month which could prevent same-sex marriage by changing the Constitution to define marriage as being between a man and a woman. That’s exactly what the claimant indicated.

[42] On page 69 the documentary evidence gives the clear picture of Romania is today. Romania is regarded as one of Europe’s most homophobic countries. Same-sex sexual activity is legal but there is no legal recognition of same-sex couples. The church holds a huge influence over the population. Approximately 85% of the 19 million population belong to Romanian Orthodox Church.

[43] Anti-gay campaigns led by Coalition for Family gained 3 million signatures in the country in 2016 urging for the government to act to amend the Constitution.

[44] On page 74, the 19^th March 2019 article indicates that the Senate rejected by a majority on March 8^th two bills that would have allowed same-sex individuals to close a civil partnership and enjoy rights similar to those of married couples.

[45] That is, in a nutshell, the objective evidence of what the society in Romania is.

[46] Based on the documentary evidence, the panel finds that the claimant would not be able to change his name. The claimant would not be able to have his parts like, the breasts removed and the rest of the female parts kept and should he return and continue, which he says he would, to be a non-binary, he would be targeted. He would be discriminated in employment, in housing, by his family and he would not have protection, as well as, he would not be able to change his name to XXXX XXXX.

[47] All that cumulatively amounts to persecution.

[48] The panel finds that the claimant – the panel finds that there is serious possibility that the claimant would be persecuted as a non-binary, should he return to Romania.

[49] For all above reasons, XXXX XXXX, is a Convention refugee.

(Signed by) Shams Alidina

I wish to thank you, Sir, for coming.

I wish to thank the two Counsels.

The hearing is over.

——— REASONS CONCLUDED ———-

All Countries Lebanon

2019 RLLR 148

Citation: 2019 RLLR 148
Tribunal: Refugee Protection Division
Date of Decision: September 26, 2019
Panel: Daniel Carens-Nedelsky
Counsel for the Claimant(s): (no information available)
Country: Lebanon
RPD Number: MB9-03758
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000069-000074

[1] This is the decision for the claim of refugee protection made by XXXX XXXX under file number MB9-03758. I have considered all of the evidence and I am ready to render my decision orally.

[2] You are claiming to be a citizen of Lebanon and are claiming refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.

ALLEGATIONS

[3] You alleged that you cannot return to Lebanon because of your fear of persecution due to your gender identity as a transgender person and you fear persecution from your family and society at large.

[4] During the hearing and in making my decision I have considered and applied the Chairperson’s Guideline number 9 regarding claimants with diverse sexual orientation and gender identity and expression.

DETERMINATION

[5] For the following reasons, I find that you are a “Convention refugee”.

IDENTITY

[6] I find on a balance of probabilities you have established your personal identity and your identity as a citizen of Lebanon through your documentary evidence, in particular your Lebanese passport as well as through your credible testimony.

NEXUS

[7] I find that you have a nexus to the Convention as a member of a particular social group, specifically as a person fearing persecution due to your gender identity.

CREDIBILITY

[8] You testified in a spontaneous and forthcoming manner with no omissions, contradictions or inconsistencies and I therefore accept as true what you have told me here today and what you have written in your Basis of Claim.

[9] You provided detailed testimony about first realizing that you were a transgender in Lebanon preferring to wear women’s clothing in secret at an early age, about a time when your uncle assaulted you for wearing earrings, about seeking the assistance of an LGBTQ group in Beirut in Lebanon.

[10] You told me about how you got there and how they weren’t ultimately able to help you, about a relationship that you had with a man in Lebanon. You provided details about how that relationship began and what you liked about him and about convincing your parents to come and let you study here in Canada. And you also told me about your experiences here in Canada, about how seeing gay and transgender people out in the world started to make you feel more comfortable about exploring your own gender identity, about your relationship with a man named XXXX and how he also encouraged you to push and explore your boundary. And you corroborated this evidence with a number of text messages and pictures of XXXX.

[11] Based on your credible testimony, I find that you have a subjective fear of returning to Lebanon.

OBJECTIVE BASIS

[12] The country condition documents are clear that LGBTQ individuals who are open about their identity face widespread discrimination and violence in Lebanon.

[13] The United States Department of State Report at 2.11 of the National Documentation Package notes that there is official and societal discrimination against LGBTI persons and that there is no (inaudible) anti-discrimination law to protect LGBTI persons. And the same document notes that most reports of abuse came from transgender women and it also notes that a project from the Arab Foundation for Freedom and Equality highlighted employment discrimination faced by transgender women.

[14] Item 6.2 of the National Documentation Package notes that article 534 of the Lebanese Code is still in force which makes illegal “unnatural sexual intercourse” carrying a sentence of up to a year in prison. And the same document notes that although some judges had held that this law cannot be used to convict LGBTQ individuals, arrests under the law have continued and actually increased from 2016 to 2017 and that this ambiguity creates a scope of violence against LGBTQ individuals. The same document reports the terrible treatment that LGBTQ individuals face by police, including physical violence, mandatory HIV testing carried out in an unsafe manner and psychological torment.

[15] Item 2.2 of the National Documentation Package notes that security forces continue to arrest people and press charges under this law and similarly item 2.8 of the National Documentation Package notes that in 2017 a transgendered woman in Lebanon was detained due to her sexual identity.

[16] Item 6.3 of the NDP notes that when asked whether people could identify not strictly as either a man or a woman, 72 per cent of Lebanese people surveyed disagreed and that the idea that there was only two sexes had 97.5 percent agreement.

[17] Item 9.4 of the National Documentation Package notes that LGBTQ people often faced recurrent humiliating treatments and verbal and psychological violence and abuse from the police and also reported being harassed. And this also includes a reference of a transgender person who was treated very terribly by the police and in another case an individual was deprived access of medicine for nine months.

[18] And lastly, I note that there is some positive evidence of life for LGBTQ people specifically in Beirut and Lebanon. Item 6.4 of the NDP notes that there is an underground LGBTQ life in Beirut, but the same document describes police abuse of LGBTQ individuals, police raids on LGBT establishments and that LGBTQ individuals are not able to live openly in Beirut without facing severe harassment and discrimination.

BY CLAIMANT

[19] I can help you with that. There is maybe one road. I think we can live there, but you cannot from the society. It’s called the “hamara (phonetic)”.

BY THE MEMBER

[20] And similarly, item 2.8 of the National Documentation Package notes that while the first Pride Parade in Beirut happened in 2017, numerous events were either cancelled or downsized due to threats of violence and protests. And similarly, item 2.5 of the National Documentation Package it says LGBTQ individuals face a moderate risk of societal and official discrimination and that in Beirut an individual would be able to lead a relatively open life, but would need to keep a low profile and would be at risk of societal and family ostracism.

[21] I find that the term of “relatively open life” understates the significant risks described earlier in the report that individuals with whatever sexual orientation and gender identity face and that the documentary evidence is clear that individuals who live openly face extreme persecution and discrimination including in Beirut.

[22] And based on this documentary evidence, I find there is an objective basis for your fear of returning to Lebanon.

STATE PROTECTION

[23] As discussed in the documents discussed above, the police often do not protect LGBTQ individuals and are in fact frequently agents of persecution towards LGBTQ individuals and particularly transgender individuals and I therefore find that adequate State protection would not be available to you if you were to return to Lebanon.

INTERNAL FLIGHT ALTERNATIVE

[24] The documentary evidence discussed above states that even in Beirut where there is something of an underground LGBTQ community, individuals are notable to live openly without facing severe discrimination by society and the police and that anti-LGBTQ sentiments are prevalent throughout the entire country. And I therefore find on a balance of probabilities that you would face a serious possibility of persecution throughout Lebanon and therefore do not have an internal flight alternative available to you.

CONCLUSION

[25] I find that you face a serious possibility of persecution as a result of your gender identity and therefore find that you are a “Convention refugee”. Your claim is therefore accepted.

All Countries Barbados

2020 RLLR 148

Citation: 2020 RLLR 148
Tribunal: Refugee Protection Division
Date of Decision: February 17, 2020
Panel: D. Willard
Counsel for the Claimant(s): Annie N. O’Dell
Country: Barbados
RPD Number: TB8-29245
Associated RPD Number(s): TB8-29336; TB8-29337; TB8-29338
ATIP Number: A-2021-01105
ATIP Pages: 000057-000065

DECISION

[1] MEMBER: This is an oral decision in the claims for refugee protection of XXXX XXXX XXXX XXXX XXXX XXXX the File number is TB8-29245, XXXX XXXX XXXX XXXX XXXX the File number is TB8-29336, XXXX XXXX XXXX TB8-29337 and XXXX XXXX XXXX the File number is TB8-29338.

[2] The claimant’s are seeking protection in Canada; well the principal claimant is seeking protection in Canada pursuant to Section 96 of the Immigration and Refugee Protection Act on the basis of her membership in a particular social group that is women who are at risk due to domestic violence and domestic violence in Barbados.

[3] The claimant indicates that she and the minors are all citizens of Barbados only and of no other country. The panel wishes to note that the written version of these reasons will not be edited for spelling, syntax, grammar and no references to applicable case law.

ALLEGATIONS:

[4] The details of the claimant’s allegations are found in Exhibit 2.1 before the panel in the basis of claim form narrative and also in the additional narrative at Exhibit 4 which provides an update to the initial narrative.

[5] In summary the claimant the principal claimant indicates that she was born in Barbados XXXX XXXX XXXX XXXX. That she and the minor claimant’s who are her children are all citizens of Barbados only. She states that her sons share a father XXXX XXXX who continues to reside in Barbados and from whom she obtained a letter of consent in order for them to travel to Canada.

[6] She indicates that her daughter XXXX her father XXXX XXXX(ph) is the individual who the claimant is afraid of in Barbados. She details the nature of her relationship with XXXX (ph) in her narrative.

[7] To summarize; she indicates that she met him a number of years ago when her eldest son was still quite young. She states that the relationship initially was positive but took a turn for the worst and became a very abusive one.

[8] She indicates that over the years she’s lived in a variety of different places including with XXXX(ph) father, her mother she’s moved addresses a number of times but that XXXX(ph) has been abusive on a continual basis in a manner of different forms.

[9] She indicates in her narrative that she tried to seek help from the police on a number of occasions. She indicates that help was not operationally adequate so to speak, it was not forthcoming to her.

[10] She states that after a number of attempts to try to get help from them she gave up hope, particularly on the last occasion in the fall of 2018 when she had an altercation with XXXX (ph) in which the police were not helpful to her and gave her a solution that she believed would end up in her being charged with assault and being arrested.

[11] It was at this point that she decided that she could no longer live in Barbados and promptly decided to come to Canada and seek help here. She entered Canada on XXXX XXXX of 2018 with the three minor children and shortly after arriving here filed a claim for refugee protection for herself and on their behalf as well.

DETERMINATION:

[12] After assessing all of the evidence before me madam I find that you have established on a balance of probabilities that you have a well founded fear of persecution in your country Barbados on the basis of your membership in a particular social group, that is on the basis of your gender and as a woman who fears abuse in Barbados from a partner.

[13] I find that you have established your identities that is your own and that of the minor claimant’ s on a balance of probabilities. I find as well that you’ve established the credibility of your allegations on a balance, the well foundedness of your fear.

[14] I find that you’ve also provided a reasonable explanation for your delay in filing your claim here in Canada and that on a balance operational adequate state protection would not be forthcoming to you nor that there would be a viable internal flight alternative for you in Barbados.

[15] I’m going to turn to my analysis now. First with respect to your personal identities I note madam that you did provide your original passports both for yourself and the minor claimants and I have certified true copies of them before me in Exhibit 1.

[16] I note that all of the passport copies before me indicate the dates of birth and country’s of citizenship, places of birth that you have alleged.

[17] I find therefore madam that you have discharged your onus of demonstrating your personal identities as per Section 106 of the Immigration and Refugee Protection Act and Rule 11 of the Refugee Protection Division rules. Accordingly I accept that all of you hold the identities that you allege.

[18] With respect to credibility, madam I found you to be today a very credible witness. You were very straightforward, sincere, detailed, and heartfelt in the statements that you made. You were able to testify in a manner that was very consistent with the narrative that you provided of the events that occurred to you.

[19] You were consistent with the documentation in Exhibits 2.1 and Exhibit 4. I have insufficient reason to doubt the sincerity and truthfulness of your allegations of abuse at the hands of XXXX XXXX (ph) in Barbados.

[20] Accordingly I accept your allegations as truthful and in reaching that determination I’ve also been mindful of the documentation that you have provided and your explanation for the Jack of documentation from the police, I note that in Exhibit 6 through your counsel you provided a number of documents.

[21] You provided the Barbados police medical report, the original of which you gave tome today, you provided a copy of what’s app messages to XXXX XXXX who you dealt with in Barbados, you also provided a print out of recent calls from XXXX(ph), contact information, you provided a number of letters of support from individuals who know about the problems that you’ve endured with XXXX(ph), you also provided a consent letter from XXXX XXXX for the purposes of your travel.

[22] I note as well that there is a XXXX assessment from XXXX XXXX that I’ve also bore in mind in assessing your evidence today.

[23] I’ve also madam been mindful of and been guided by chair person’ s Guideline 4 on women fearing gender persecution in their country of origin and I’ve also been mindful of counsel’s outline in her application regarding the, your emotional state and the XXXX symptoms that you are experiencing.

[24] I find madam that you have established through your evidence and testimony today the credibility of your allegations and accept them as credible on a balance.

[25] With respect to the delay in filing your claim here in Canada, I did ask you questions today about whether or not you were aware that you could file a claim for protection upon arrival. I note that you indicated that you weren’t aware that you could qualify as a refugee claimant and therefore you were guided by a friend who gave you some advice and told you to seek legal assistance and contact a shelter.

[26] You described the steps that you took in detail that you contacted XXXX(ph) house, that you needed to apply for legal aid, seek legal assistance, I’ve bore in mind your particular circumstances and also have taken into account the fact that you were here on a valid visa, a valid visitor’s stay when you were seeking legal advice.

[27] Therefore I find that the delay of approximately a month or two in filing your claim here in Canada is not indicative of a lack of subjective fear. I accept your statements as reasonable and therefore draw no negative inference from the delay which was a rather short one.

[28] In terms of the well foundedness of your fear, I note that the documentary evidence in particular Item 5.5 indicates that domestic violence continues to be a major problem in Barbados.

[29] There was a, so Item 5.5 is indexed as BRB105717.E its dated March 3rd of 2017 and it’s includes a survey of six hundred people in Barbados on behalf of Unicef s office for the Eastern Caribbean area and it noted that seventy six percent of respondents indicated that they thought domestic violence remained to be a major problem in Barbados.

[30] Thirty six percent of respondents had someone close to them experience domestic violence by a spouse or partner. According to Freedom House violence against women remains widespread despite domestic violence laws in the country.

[31] Moreover it similarly states that the violence, that violence and abuse against women continue to be a significant social problem.

[32] A 2016 report by Inter American Developmental Bank entitled crime and violence in Barbados states that the recording of statistics related to violence in the home in Barbados is severely limited.

[33] It goes on to state that information collection on domestic violence is inadequate due to under reporting, under documentation, administrative incapacity and a lack of a appreciation for the use of statistics and the policy formulation and monitoring cycle.

[34] The Barbados government information service GIS further quotes the acting director of the Bureau of Gender Affairs as stating that the true incidents of domestic violence in Barbados is unknown since it is a crime that is seldom reported.

[35] I will proceed to discuss in further the legislation and the applicability of the legislation under my state protection analysis but I would note that this document does go on to describe incidents of domestic violence, the prevalence of it in the country and therefore madam I find that your fear is, is a well founded one.

[37] In particular with respect to the issue of state protection, I note that Item 2.1 the US Department of State report indicates that there is legislation in place to deal with domestic violence and incidents of rape and maltreatment of partners in Barbados.

[38] I note that Item 2.1 states that the law prohibits domestic violence and provides protection to all members of the family including men and children.

[40] The law applies equally to marriages and to common law relationships. The law empowers police to make an arrest after receiving a complaint, visiting the premises and having some assurance that a crime was committed and police made numerous arrests for domestic violence, penalties depend on the severity of the charges and range from a fine for first time offenders unless the injury is serious up to the death penalty for cases resulting in death of a victim.

[41] It states that victims may request restraining orders which the courts often issue. The courts may sentence an offender to jail for breaching such an order. Violence…nevertheless it does go on to state that violence and abuse against women continue to be significant social problems. Police have a victim support unit but reports indicated the services provided were inadequate.

[42] The same DOS report does state that there were public and private counselling services for victims of domestic violence, rape and child abuse. The government provided funding for a shelter for women who had faced violence, the shelter also served victims of human trafficking and other forms of gender based violence.

[43] In making its assessment the panel must assess whether or not the state protection in Barbados is operationally adequate. It is not enough to just look at efforts that are being made. The panel must assess whether or not there is an operationally adequate level of protection for you in your country.

[44] The panel notes that you described in your narrative in detail and again today in testimony the interactions that you had with the police. I note that your statements today were very consistent with the statements you made in your basis of claim form narratives.

[45] You state that in your interactions with the police the response was not fruitful. You state that in the last incident that you had a male and female police officer come to you and suggest that you throw a pot of boiling water on the agent of persecution as a solution.

[46] You also state that in your dialogue with a police officer about a restraining order they indicated to you that they would get back to you and nothing further came of it.

[47] You described as well seeking that charges be pressed against XXXX(ph) in the fall of 2017 and that the police escorted you and him in the same police vehicle wherein he was verbally accosting you for charging him, the matter did go to court, however nothing came of it even though you followed up and tried and did appear at the court.

[48] You stated today that you sought assistance from three different police stations that you’d gone to the police if you were to estimate more than twenty times, that you tried to call them and seek help from them over a period of a number of years.

[49] The panel has bore this in mind in reviewing Item 5.5 which is a detailed summary of what is happening on the ground with police efforts in Barbados. I’m going to read out what I have noted from this document.

[50] It states that in Item 5.5 that the IDP report notes that there has recently been an attempt to improve the inadequacies of data collection on domestic violence. Through the creation of a family conflict intervention unit designed to respond to and record more detailed information on domestic violence.

[51] The same source adds that the unit was established by the police force in June 2013 and that as a result detailed data on domestic violence is limited only to cases reported from June 2013 onwards. It goes on to state that there were two hundred and twenty cases of domestic abuse reported to the Family Conflict Intervention Unit.

[52] In November 2016 a Barbadian newspaper The Daily Nation reported that incidents of domestic violence are on the rise noting the police logged four hundred and thirty five reports of domestic violence cases between January 1st and October 31st 2016, a slight increase over four hundred and twenty nine cases reported in 2015.

[53] The same RIR indicates that there is legislation in place to address marital rape and domestic violence. There are also amendments to the domestic violence protection orders act that was introduced in 2016.

[54] I note that this item is also, this legislation is also made, there’s a reference made to it in Item 5.6 before the panel.

[55] The…under the state protection and police segment of this item the panel notes that the following is stated. It adds that victims may request restraining orders which the court often issued and the courts may sentence an offender to jail for breaching such an order.

[56] According to the IDP report there is no government run shelter in Barbados for victims of domestic violence.

[57] However sources note that the government provided a subvention to the Business and Professionals Women’s Club of Barbados to run a shelter for abused women which is the only shelter available to abused women in Barbados. According to the IDP report the Barbados government is the shelter’s main source of funding.

[58] With respect to the police according to Freedom House, police responsiveness is often slow and inadequate in cases of violence against women. Country reports 2015 similarly states that there are several reports that police did not responds promptly or adequately to complaints of sexual assault and domestic violence.

[59] Barbados today reports that police are reluctant to respond to cases of domestic violence. It indicates that there is a victim support unit within the police force.

[60] According to the same source this unit consists of civilian volunteers and offers assistance primarily to female victims of violent crimes but reports indicated services provided were inadequate.

[61] Sources also note the existence of a police family conflict unit. The IDP report explains that this unit was established due to a perceived need to sensitize officers responding to family and domestic violence cases. It reported that police were receiving training on domestic violence.

[62] With respect to support services there is reference to shelters that offer psychological counsellors, intervention services. Of note is that at the final page of this report it states that there was a crisis center and twenty four hour hotline established as a conduit for the shelter for battered women.

[63] However the same source states that the walk in crisis center was closed in October 2014 due to a reduction in fonds. There is a service alliance, violent encounters, a non profit organization.

[64] According to the information before the panel this foundation records and monitors incidents of domestic violence and provides free counselling and legal advice, operates a hotline and tries to raise awareness.

[65] After assessing all of this information madam and taking into consideration your own personal interaction with the police and authorities in Barbados.

[66] The panel finds that you testimony which is found to be credible in combination with the information that we have on the adequacy of the enforcement services in Barbados leads the panel to determine that you have in your circumstance discharged the onus of demonstrating with clear and convincing evidence that operationally adequate state protection would not be forthcoming to you.

[67] In reaching this determination the panel is mindful of the added services that may be present in Barbados. However it is clear that there is an ongoing lack of effectiveness in terms of the services provided by the police in Barbados.

[68] The panel notes that the reports are consistent with one another in Item 2.1 and Item 5.5 and others that while there are efforts being made the services provided are deemed to be inadequate from the police and that there isn’t always responsiveness on their part.

[69] Taking this into consideration madam with your own personal interactions with the police I find that you have discharged the onus of demonstrating that operational adequate state protection would not be forthcoming to you in Barbados.

[70] With respect to an internal flight alternative, I have bore in statement madam your, bore in mind your statement that you know that Barbados is small and that you’ve lived in a different, that you’ve lived in different locations and tried to seek protection from different police stations.

[71] I note that according to Item 1.3 of the national documentation package Barbados is a very small country. The square kilometers are four hundred and thirty in total. The population is estimated at less than three hundred thousand people as of July 2018.

[72] Given madam the small size of the country and the ongoing threats being issued to you through various people from XXXX(ph) which demonstrate a clear continued interest and determination to find you, his threat that he will locate you and kill you if you were to return to Barbados.

[73] I find that you have demonstrated that there would not be a viable internal flight alternative for you that would be safe in Barbados given the small size of the country making it very easy for XXXX(ph) to locate you should you try to relocate throughout the country and his past efforts and abilities to continually find you, harass you and abuse you on an ongoing basis.

[74] In conclusion I find madam that you have demonstrated that you have established your evidence on a balance of probabilities. I note that you have indicated that your children have also been abused and threatened by him. I find therefore that you have established a well founded fear of persecution on your own behalf but also on their part.

[75] I finally note as well that you have met the onus of demonstrating that you meet the definition of a Convention refugee.

[76] That you have established the components of Section 96 and established that there is a serious possibility of persecution for you on the basis of your membership in a particular social group that is on the basis of your gender and as a woman who is fearful of domestic violence, for your children as members of your family as well.

[77] I therefore find madam that you are all Convention refugees and I accept your claims.

[78] Thank you. We are concluded.

———- REASONS CONCLUDED ———-