Categories
All Countries Ukraine

2021 RLLR 35

Citation: 2021 RLLR 35
Tribunal: Refugee Protection Division
Date of Decision: March 16, 2021
Panel: Jessica Norman
Counsel for the Claimant(s): El-Farouk Khaki
Country: Ukraine
RPD Number: TB9-07374
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000173-000180

REASONS FOR DECISION

INTRODUCTION

[1]     These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX, legally known as XXXX XXXX, who alleges that they are a citizen of Ukraine, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “IRPA“).

[2]     This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the IRPA.

ALLEGATIONS

[3]     The details of the claimant’ s allegations are fully set out in their Basis of Claim form and narrative, dated XXXX XXXX XXXX 2019.1 To summarize, the claimant alleges that they fear persecution at the hands of the Ukrainian police and Ukrainian society, including far-right nationalist groups, due to their sexual orientation and gender identity as a bisexual, non-binary, transgender person.

DETERMINATION

[4]     For the following reasons, the panel determines that the claimant is a Convention refugee pursuant to section 96 of the IRPA, because they face a serious possibility of persecution in Ukraine.

ANALYSIS

Identity

[5]     The panel finds that the claimant’s identity as a Ukrainian citizen is established, on a balance of probabilities, by a certified copy of their genuine Ukrainian passport.2

Nexus

[6]     The panel finds that there is a link between the claimant’s fear and the Convention refugee definition – namely, membership in a particular social group as a queer, non-binary, transgender person. Accordingly, the panel has assessed their claim pursuant to section 96 of the IRPA.

Credibility

[7]     The claimant’s narrative includes a detailed description of growing up in a repressive and abusive environment, where they were abused by their parents, bullied, and physically and sexually assaulted, including by their classmates, for not conforming to gender norms. The claimant also gives a detailed description of how they came to understand their own sexual orientation and gender identity after coming to Canada. The claimant’s BOC form and narrative are internally consistent, and entirely consistent with the other forms they completed upon initiating their refugee claim.

[8]     The claimant submitted relevant and probative documentary evidence corroborating their allegations.3 That evidence includes a copy of their birth certificate; copies of detailed social media posts expressing their sexual orientation and gender identity; detailed letters of support, including from the claimant’s partners and other friends described in their narrative; documents showing that the claimant attended the 519 “Among Friends” program well before initiating a refugee claim; photos of the claimant with partners and friends, including at Pride events; and a letter from the claimant’s XXXX corroborating their XXXX health issues.

[9]     The claimant’s documentary evidence is consistent, in content and chronology, with their basis of claim form and narrative and with the other evidence in their claim.

[10]   The panel believes what the claimant has alleged and finds that they have established on a balance of probabilities that they are a queer, non-binary, transgender person.

Subjective Fear

[11]   The panel notes that the claimant arrived in Canada in 2013 but did not file a refugee claim until XXXX 2019, at which point they had been out of status since XXXX 2017.4 The panel considered whether this gives rise to a negative inference as to their subjective fear of returning to Ukraine.

[12]   The claimant explained that prior to leaving Ukraine to attend university in Toronto in 2013, they were unaware of their sexual orientation and gender identity. It was only after becoming part of a community of transgender, non-binary and other queer persons that they began to explore this aspect of their identity. They began to identify as, and publicly came out as, a non-binary transgender person in XXXX 2016, at which point they changed their chosen name from XXXX to XXXX XXXX XXXX. The claimant has not returned to Ukraine since that time.

[13]   The claimant also explained that although they learned of the existence of the refugee claim system in XXXX 2017 after visiting the 519, their poor XXXX health and homelessness made it difficult to make decisions and seek information about anything outside day-to-day survival.

[14]   The claimant explained that in XXXX 2018, they were finally able to access healthcare for the first time since the expiry of their previous health insurance, and that after receiving XXXX health treatment they began working with a lawyer to prepare a refugee claim in XXXX 2018. However, after an exploitative employment situation, followed by the loss of their job, their XXXX health again worsened, and they were unable to continue. The claimant alleged that it was only after their partner reached out to their current counsel in XXXX 2018, and learned of the existence of legal aid, that the claimant felt able to continue working on their claim.

[15]   The claimant submitted evidence corroborating that they had begun working with a lawyer in XXXX 2018,5 as well as evidence corroborating their XXXX health challenges.6

[16]   The panel finds that the claimant has provided a reasonable explanation of how their poverty, homelessness and XXXX health issues led to their delay in filing a refugee claim. Accordingly, the panel does not draw a negative credibility inference, and finds that the claimant has established that they fear returning to Ukraine.

Objective basis

[17]   The panel finds that the claimant’s fear of persecution in Ukraine as a queer, non-binary, transgender person is objectively well founded, and that going forward the claimant faces a serious possibility of persecution. In reaching this conclusion, the panel considered the documents in the National Documentation Package (NDP) for Ukraine dated June 30, 2020,7 as well as the country condition evidence submitted by counsel.8

[18]   Despite the fact that consensual same sex activity was decriminalised in Ukraine in 1991, the objective evidence suggests that “LGBTI people are by and large forced to hide their identities as a result of stigma”.9

[19]   Transgender persons additionally face unique challenges. They reported “difficulties obtaining official documents reflecting their gender identity, which resulted in discrimination in health care, education, and other areas.”10

[20]   There have been some minor improvements in state policy towards transgender persons. For instance, transgender individuals are no longer required to “undergo sex reassignment surgery to change their names and genders officially”. However, they are still required to receive “counseling and hormone therapy” to do so. Moreover, regulations “still prevent reassignment for married individuals and those with minor children.” Furthermore, “transsexuality” is still classified as a psychiatric disorder, and those individuals who do wish to have reassignment surgery “must spend 30 days in a psychiatric hospital amongst the mentally ill before this is considered”.11 A person with a diagnosis of “transsexualism” is “legally prohibited to be a guardian of a child.”12 Until very recently, forced sterilization was required as a part of the legal procedure for gender recognition.13

[21]   Societal violence against LGBTI persons in Ukraine continues to be prevalent and was “often perpetrated by members of violent radical groups.”14 Authorities reportedly “often did not adequately investigate these cases or hold perpetrators to account.”15 Attacks against members of the LGBTI community “were rarely classified under criminal provisions pertaining to hate crimes, which carried heavier penalties.”16 Moreover, such crimes and discrimination are considered underreported.17

[22]   Far-right nationalists and other radical groups “consistently tried to disrupt LGBTI events with violence or threats of violence.”18 For instance, at a “Trans March” held on Transgender Day of Remembrance in Kyiv, the eighty people marching were attacked by extremists from the “Tradition and Order” far-right group. While six attackers were detained by the police, they were only charged with “petty hooliganism”.19 Similarly, police intervened and detained members of the radical groups who attacked participants at the European Lesbian Conference in Kyiv with tear gas. However, the “attackers were subsequently released, and no charges were filed.”20

[23]   In summary, the panel finds that the objective evidence strongly corroborates that the claimant faces a serious possibility of persecution in Ukraine on the basis of their sexual orientation and gender identity.

State Protection

[24]   There is a presumption that States are capable of protecting their own citizens. However, a claimant can rebut the presumption of State protection, and demonstrate that such protection would not be provided, with clear and convincing evidence of the unwillingness or inability of the State to protect them.21

[25]   The objective evidence described above details the inadequate response by police to violence and other abusive behaviour against the LGBTI community. A 2020 report from the “LGBT Human Rights Nash Mir Center” summed up the situation as such: “Hate crimes against LGBT people are investigated ineffectively, offenders often avoid responsibility, and the motives of intolerance on grounds of sexual orientation or gender identity are ignored.”22

[26]   In addition to the incidents and patterns already described, there are also reports of police violence against members of the LGBTI community, and instances of the police luring members of the community through online ads and then extorting them for money.23 Moreover, police reportedly “used laws on human trafficking or prostitution as a pretext to target LGBTI persons”, including in a raid on a gay nightclub in Dnipro in April 2018.

[27]   With respect to police protection for Pride and other marches, a report by Freedom House states that “when police do provide protection, they often only protect the assembly itself, allowing participants to be attacked before and after the event.”24

[28]   Having considered all the evidence, the panel finds that the presumption of State protection has been rebutted.

Internal flight alternative

[29]   The panel considered whether a viable internal flight alternative exists for the claimant. Given the objective evidence already cited above, which confirms that the State and its agents are often among the agents of persecution, whether directly or indirectly, the panel finds that the claimant does not have an internal flight alternative. There is nowhere in Ukraine that they could safely live openly as a queer, non-binary, transgender person.

CONCLUSION

[30]   Having considered all the evidence, the panel finds that the claimant is a Convention refugee pursuant to section 96 of the IRPA, as they face a serious possibility of persecution in Ukraine on the basis of their sexual orientation and their gender identity and expression. Their claim is therefore accepted.

(signed) Jessica Norman

16 March 2021

1 Exhibit 2.

2 Exhibit 1.

3 Exhibit 4.

4 Exhibit 2.

5 Exhibit 4.

6 Ibid.

7 Exhibit 3, National Documentation Package for Ukraine (June 30, 2020) [Ukraine NDP].

8 Exhibit 5.

9 Exhibit 3, Ukraine NDP, Item 2.9, “Hate crimes and incidents in Ukraine.” LGBT Human Rights Nash Mir Center. See also Item 6.1, “Ukraine. Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe.” International Lesbian, Gay, Bisexual, Trans and Intersex Association. ILGA-Europe [Item 6.1]; and Item 6.2, “The Face of Hatred: Crimes and incidents motivated by homophobia and transphobia in Ukraine in 2014-2017.” LGBT Human Rights Nash Mir Center [Item 6.2].

10 Exhibit 3, Ukraine NDP, Item 2.1, “Ukraine. Country Reports on Human Rights Practices for 2019.” United States. Department of State [Item 2.1].

11 Exhibit 3, Ukraine NDP, Item 1.13, “Country Policy and Information Note. Ukraine: Sexual orientation and gender identity. Version 2.0.” United Kingdom. Home Office [Item 1.13].

12 Ibid.

13 Ibid.

14 Exhibit 3, Ukraine NDP, Item 2.1.

15 Ibid.

16 Ibid.

17 Ibid.

18 Ibid.

19 Exhibit 3, Ukraine NDP, Item 6.1.

20 Exhibit 3, Ukraine NDP, Item 2.1.

21 Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689.

22 Exhibit 3, Ukraine NDP, Item 6.3, “Old problems, new prospects LGBT situation in Ukraine in 2019.” LGBT Human Rights Nash Mir Center.

23 Exhibit 3, Ukraine NDP, Item 6.2.

24 Exhibit 3, Ukraine NDP, Item 2.3, “Ukraine. Freedom in the World 2020.” Freedom House.

Categories
All Countries Bahrain

2021 RLLR 34

Citation: 2021 RLLR 34
Tribunal: Refugee Protection Division
Date of Decision: February 5, 2021
Panel: J. Eberhard
Counsel for the Claimant(s): Reni Chang
Country: Bahrain
RPD Number: TB9-09367
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000166-000172

DECISION

[1]     MEMBER: So let me give you an overview. So, what the decision says is, I believe that you are who you say you are. I believe that you’ve come to Canada for protection for the reasons that you say you have. Given the circumstances that you have faced, and that you are afraid of facing if you remain in Bahrain. You cannot live as a person who you are not. It is reasonable and fair and right, that you want to live as you are. And this is a place where you can do that. So it’s a privilege to be able to give you this decision today.

[2]     Clearly, the state is among those that you are afraid of, so you can’t go to them for protection. Even if it’s a little bit mixed about where they stand, and they sometimes have not been as awful as they might have been. They do arrest people. And they do punish people under morality laws. And it’s the way that you have chosen to hide and how you have managed your life looking over your shoulder and worrying all the time is nota fair way to live your life. It’s not reasonable, it’s not okay.

[3]     So, there isn’t anywhere else in the country that you could go where you wouldn’t face the same problems and risks. So, for all of those reasons, I will grant you protection in a slightly longer and more formal decision in just a minute. Do you have any question so far? No. Counsel, that’s about the gist of it.

[4]     COUNSEL: Thank you.

[5]     MEMBER: What I will say is, given the amount of documentation and the length of time that your claim covers, which is basically your whole life, you’re XXXX. I could say a lot more, we could have been here for longer. It’s not necessary, as I said before, for me to keep you. It’s not necessary for me to put every piece into the decision. You know your story, and the people in your life who matter to you know your story. But I wanted to reflect some of it there.

[6]     So the things that I haven’t put in, forgive me. The things that I have, I chose because they were some of the things that stood out tome, just in case you’re wondering, okay? Okay.

[7]     Let me see what the time is 03:14, okay.

[8]     So I’ve considered your testimony and the other evidence before me and I’m ready to render my decision orally. You will receive an unedited transcript of this decision in the mail in the near future. Your Counsel will also get a copy. So if you have any questions for her, you can ask her.

[9]     The Claimant, XXXX XXXX, otherwise known as (XXXX) (ph), which we’re putting in parentheses, claims to be a citizen of Bahrain and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[10]   For the record, this claim was made in the name of XXXX XXXX XXXX XXXX XXXX XXXX which is the name that the Claimant was given at birth, and which appears on the Claimant’s passport. The Claimant has long lived as a male and has completed and signed the Immigration Refugees and Citizenship Canada’s request for a form — request form for a change of sex designation, what the form is called, to formerly request a change to his name on the record of this proceeding. The request form was signed on XXXX XXXX XXXX 2019 shortly after the Claimant arrived into Canada on claim protection.

[11]   For record keeping purposes only, the name the Claimant was assigned or given at birth, which also appears as I mentioned on his passport will be included on the decision as an AKA or an also known as. In making this change to the IRB’s record I consulted with and I’m applying both the Operational Bulletin Number 7, together with the Chairperson’s Guideline on Sexual Orientation and Gender Identity Expression or the SOGIE Guidelines.

[12]   In particular, I noted Section 4 of the SOGIE Guidelines on the use of appropriate language which states the following, “All persons in proceedings before the IRB have a responsibility to be respectful toward other participants. Part of this responsibility includes the use of appropriate language by all participants. Appropriate language is defined as language that reflects that person’s self-identification, and avoids negative connotations. And this is the key part individuals should be addressed and referred to by their chosen name, terminology and pronouns”. I find that you are a convention refugee because you have established that you face a serious possibility of persecution in Bahrain, as a member of a particular social group, namely trans man.

[13]   In deciding your claim, again, I’ve considered and applied the Chairperson’s Guideline on Sexual Orientation and Gender Identity Expression, which was released on May 1, 2017.

[14]   The details of your claim are set out at length in your Basis of Claim Form dated March 29, 2019.

[15]   In short, you were born in Bahrain in 1993, to a family of five sisters and parents. As you grew older, you realized that you were different from your sisters and your other cousins in terms of your preferences, including for play, and dress. As you matured, you came to understand that your identity as — you came to understand your identity male rather than female, as your physical body suggested. You sought ways to express your genuine identity in dress and name and in your relationships over time.

[16]   You forged your own way, trying to walk a tightrope of conformity to please your family and meet social expectations while still being able to recognize yourself. You found support along the way from romantic partners, friends, and in time medical and legal professionals and others who helped you as you sought ways to be more authentic, including in time by physically changing your body first hormonal and later surgically.

[17]   Your decision to leave Bahrain for Canada was not spontaneous, but rather well informed, considered legally advised and still heartbreaking because it meant having to leave your family and your community at home.

[18]   You’ve still not been able to tell your parents that you’re not coming home, and your earlier attempts to be truthful with them about who you are, and your struggle with gender dysphoria were overwhelmingly painful for all of you.

[19]   You left Bahrain as soon as you were able after you received your Canadian (audio cut). You’ve established your identity as a national of Bahrain.

[20]   COUNSEL: Sorry, I think we just lost you for a moment there. After heartbreaking, overwhelmingly heartbreaking for all of you, I think we lost you right after there.

[21]   MEMBER: Okay, I’ll start after that. Okay so I’ll go back your decision to flee Bahrain for Canada was not spontaneous, but rather well informed considered legally advised and still heartbreaking because it meant leaving your family and community at home. You still have not been able to tell your parents that you are not coming home. And your earlier attempts to be truthful with them about who you are, and your struggle with gender dysphoria were overwhelmingly painful for all of you.

[22]   You left Bahrain as soon as you were able, after receiving your Canadian visa, and you sought protection without delay after your arrival.

[23]   You’ve established your identity as a national of Bahrain on a balance of probabilities by your testimony in the copy of your passport, which is in Exhibit 1, another copy is also in Exhibit 4. I note you’ve also provided several additional identity documents in Exhibit 4. These include your national identity card and driving licence from Bahrain.

[24]   I find you to be a very credible witness and I believe what you’ve alleged in support of your claim. You testified in an open, direct, straightforward and very natural manner about all of the central aspects of your account, and there were no relevant inconsistencies in your testimony or contradictions between it and the other evidence before me.

[25]   You provided substantial personal documentation to corroborate all aspects of your claim in Exhibit 4 and 6, which includes the documents I’ve just received today. You provided documents that were consistent in content and chronology with your testimony about your personal identity, including your transition to a trans man.

[26]   In particular, you provided a carefully documented photo essay of your life over 15 years from 2005 to 2019. You’ve entitled your photo essay “Born Different”, and the photos you have selected to share clearly illustrate your lifelong efforts to freely express your true male identity. They also reflect your ongoing and persistent efforts to balance this desire with the need to protect your safety in Bahrain, within your immediate family, community and in your country.

[27]   As you describe in your account, your awareness of the risks you faced in Bahrain only increased over time, and you hadn’t even always appreciated precisely how precariously you were living. For example, your double life included dressing in male clothing, as your life expanded to use your words appreciating the risk, but not deescalating danger, given that it can be seen as illegal to cross-dress in Bahrain, or to elect to call yourself a male name. You didn’t know this when you first chose to use the name Soud. I’ve considered and accepted the medical evidence before me of your decisions to change your physical body over time to comport with your self-identification as male.

[28]   This has been a lengthy and undoubtedly difficult process at times, including rejection by doctors who wouldn’t undertake the risk of performing your top surgery, boards of directors and others who regulated your personal choices, and who could place you at grave risk if your intentions and information were revealed.

[29]   Other documents and evidence corroborate your account of the efforts you undertook before surgery to shift your external appearance into alignment with your internal one, including by wearing shirt binders for many years and undergoing hormone therapy, which was largely unavailable to you in Bahrain until much later and then not particularly hopefully. Medical reports also document your efforts to seek legal and safer ways to transition including through chromosomal and hormonal analysis and abdominal ultrasounds.

[30]   Ultimately, these efforts were unsuccessful, as were your later efforts to seek professional legal assistance in claiming your own identity in Bahrain.

[31]   Over and again, you heard from psychiatrists and the legal expert that you have talked about that you would have to leave Bahrain in order to live freely and safely as yourself at the high cost of leaving behind your family and other people that you love.

[32]   The letters also in Exhibit 4 reflect the many persons you’ve known in a wide variety of capacities as close family, friends, former employers, volunteer coordinator. All of these letters indicate that you’re a well respected, capable and cared about human being, though not all of them reflect knowledge of your male identity.

[33]   While this synopsis doesn’t reflect the full breadth of the personal evidence that you’ve disclosed, I have considered it all carefully.  And I find that the documents that you’ve mentioned together with your testimony are consistent with what you’ve set out in your Basis of Claim Form account about why you fear returning to Bahrain.

[34]   In short, I accept the evidence that you’ve presented both documentary and testamentary. And I find it to be (unintelligible 02:03:48).

[35]   So a person who seeks protection as a convention refugee has to establish both that he’s afraid of persecution at home, and that there’s an objective basis for that fear.

[36]   In your case, the primary convention ground is as I said earlier, a particular social group of which you are a member as a trans man who’s subject to persecution in Bahrain. I find that your decision to leave as soon as possible after receiving your Canadian visa is consistent with having a subjective fear of persecution for the reasons that you have set out in great detail.

[37]   I accept your explanation for the delay in time as between when you got your visa and when you finally left the country. And mainly that you needed to cover your departure for the sake of your parents, who needed a good reason and you were waiting for leave from work to be able to go.

[38]   In making this finding, I’ve also considered your words on the final slide of your photo essay, namely, “I had to choose between the people I love and seeking protection in Canada. I chose to leave the country after consultations and confirmation that I have no future in Bahrain. I’ve been living as a man ever since”.

[39]   The country condition documents in the National Documentation Package for Bahrain dated 31, March 2020, which are in Exhibit 3, as well as those exhibited by — submitted by Counsel in Exhibit 5 are also consistent with your allegations that there’s a serious possibility you’ll face persecution as a trans man if you returned to Bahrain, particular I’ve looked at items 6.1, 2.1 and 2.6.

[40]   In short, well, there’s some mixed evidence, according to the United States Department of State report, the 1976 penal code.  In other words, the law in Bahrain does not criminalize same sex, sexual conduct between consenting adults of at least 21 years. But it does not extend anti-discrimination protections to lesbian, gay, bisexual, transgender intersex individuals on the basis of their sexual orientation or gender identity.

[41]   According to human rights watch, the government prosecuted acts, such as organizing a, “gay party, or cross dressing” under Penal Code provisions against “indecency and immorality”. Discrimination based on sexual orientation or gender identity occurred in Bahrain, including in the areas of employment and obtaining legal identity documents.  In some cases, courts have permitted transgender individuals to update identity documents if they had undergone sex reassignment surgery, but as Counsel has suggested by drawing my attention to a case where somebody was granted permission to have this surgery and later ran into troubles nonetheless, things in Bahrain are not clear-cut, and the risks are too high.

[42]   Freedom House states that “same sex activity is not illegal, yet individuals have reportedly been punished for it”. And some organizations explain that it should be noted that there is morality or public decency laws in place in Bahrain that can be interpreted to include LGB and trans persons. Article 324 of the 1976 Penal Code states, that every person who entices a male or female to commit acts of immorality or prostitution, or assist in the acts of any matter whatsoever shall be liable for a prison sentence. This is very general and the fact that such a general morality law exist on the books and can be used puts you at risk.

[43]   Moreover, other documents say that law enforcement agencies in the courts have broad discretionary power to use fines or jail time for any activities that they deem to be in violation of traditional morality.

[44]   Another article by Middle Eastern news site Al Bawaba states that “gender non conforming individuals encounter harassment by police and Bahraini citizens alike”. Country Reports 2014 further states that in July of 2014, a foreign man was sentenced to a month in jail, followed by deportation for “wearing women’s makeup and accessories”. The source adds that the man was arrested because police thought he was walking in a feminine way. This kind of arbitrary, discretionary power is not what you would choose to be subjected to, and certainly would constitute persecution if you are constantly fearing it.

[45]   Moreover, sources indicate that there are no legal measures to prevent discrimination against sexual minorities in Bahrain. According to Human Rights Watch, and there are no organizations in Bahrain, to which sexual minorities may turn for recourse of protection.

[46]   As we discussed, during your hearing, the very fact that there’s almost no information in the NDP about the situation for sexual minorities suggests the kind of repression and discretionary over use of morality laws that is consistent with your account of your own personal experience living there.

[47]   Account of the objective evidence that I’ve just described and noting that Counsel has provided me with well over 100 pages of documentary evidence, which is consistent with what I just set out with more emphasis on cross-dressing and some other aspects of your claim. I find that your fear of persecution in Bahrain is well-founded.

[48]   So given the evidence before me both personal and objective, I find there’s a serious possibility that you’ll face persecution in Bahrain if you return because of your membership in a particular social group as a trans man.

[49]   There’s a presumption that states can protect their own citizens except when they’re in a state of complete breakdown. To rebut this presumption of state protection, a claimant has to provide what we call clear and convincing evidence of the state’s inability or unwillingness.

[50]   Again, with respect to the country condition documents that I have described, I find that you are precariously situated as a trans man in Bahrain, you’re not permitted to be who you are, to dress as you choose, to call yourself by your chosen name. And you face risks at every level, from your family level, to your community level, to your state level, with all of the intersecting pieces of that whether it’s employment or healthcare or access to a wide variety of what is the normal going about of life business.

[51]   Police will not protect you in Bahrain. Indeed, they may be the agents responsible for persecuting you by punishing your dress and your self expression.

[52]   So for all of these reasons, following the Supreme Court of Canada’s decision and award, I find you presented clear and convincing evidence that rebuts the presumption that adequate state protection is available to you on a balance of probabilities having regard to your own persona) experience and the experiences of others similarly situated to you.

[53]   I’ve also considered whether an internal flight alternative exist for you. Generally speaking, internal relocation is not an option if a person has to conceal their sexual orientation or gender identity in the proposed new location. Anywhere you go in Bahrain, you would face the same situation. I therefore find you face a serious possibility of persecution throughout Bahrain, and therefore there is no internal flight alternative available to you.

[54]   So for all of these reasons, I find you established you face a serious possibility of persecution in Bahrain on a convention ground. I therefore find that you are convention refugee and I accept your claim.

[55]   COUNSEL: Thank you, Madam Member.

[56]   MEMBER: You’re most welcome.

———-REASONS CONCLUDED———-

Categories
All Countries Iran

2021 RLLR 33

Citation: 2021 RLLR 33
Tribunal: Refugee Protection Division
Date of Decision: November 22, 2021
Panel: J. Kim
Counsel for the Claimant(s): Farzan Fallahpour
Country: Iran
RPD Number: TB9-16035
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000163-000165

DECISION

[1]     MEMBER: This is a decision for the claimant XXXX XXXX, file number TB9-16035. I’ve considered your testimony and other evidence in the case, and I’m ready to render my decision orally. For making this decision and in formulating questions for the hearing, I considered Chairperson’s Guideline 9, proceedings before the IRB involving sexual orientation, and gender identity and expression. You are claiming to be a citizen of Iran and are claiming Refugee Protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act. I find that you are a Convention refugee for the following reasons.

[2]     You allege the following. That you are a citizen of Iran, and that if you were to return, you will face persecution because of your membership in a particular social group as a gay man. You allege that there is not state protection for you or an internal flight alternative.

[3]     Your personal identity as a citizen of Iran has been established by your oral testimony and a copy of your passport, which can be found at Exhibit 1. I find on a balance of possibilities that identity and the country of reference, which is Iran, have been established.

[4]     In terms of your general credibility, I found you be credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim forms. You provided an extensive amendment to the original Basis of Claim form, which originally alleged that you were gay and also a transgender woman. You’d retracted that portion of the original Basis of Claim form that stated that you are transgender woman, and alleged improper conduct by your former counsel and the interpreter for the counsel. Your testimony was straightforward and was keeping with amended Basis of Claim form. There were no significant inconsistency or omission that went to the heart of the claim, which is that you are a gay man (sic).

[5]     Your oral testimony today included details regarding your realization about your sexual orientation, and learning about the term, and what being a gay person means to you. You discussed your serious relationship you had with a person of the same gender in Canada, and regarding the short-term relationship you’ve had since then. You discussed your serious relationship, how the two you met, how the relationship developed, what you two did as a couple, and how you to broke up, as he had to return to Iran to family issues. You discussed a fear you had of what would happen to him, as he was returning to Iran after being in relationship with another man, and that you never contacted him since you two parted ways.

[6]     You also discussed your father’s negative reaction when he found out about your relationship with your boyfriend and how he cut you off. You also discussed activities you have done in Canada, such as going to clubs and attending pride parade. Your best friend also testified today, in regard to your sexual orientation and knowing about your serious relationship. Although there were some minor inconsistencies with his testimony and your testimony, I do not draw negative credibility inferences on them.

[7]     You provided your own affidavit, in regard to the reason for significant amendment on your Basis of Claim form and XXXX Assessment Report, which can be found at Exhibit 5. You also provided communication to your previous counsel, and the response from the previous counsel. I do not put a lot of weight on this issue with previous counsel, as I find it to be not determinative, as I found you to be credible in your allegation that you are a gay man. Your testimony and the supporting documentation all established, on a balance of probabilities, you are a gay man.

[8]     The country condition documents in the National Documentation Package for Iran, which can be found at Exhibit 3, are consistent with your allegation that there is a serious possibility that you will face persecution as a gay man in Iran. Item 2.1, the US Department of State Report for Iran, points to the crimes involving violence or threats of violence targeting members of the LGBTQ+ communities, criminalization of consensual same-sex conduct as few of significant human rights issues present in Iran (sic). Item 6.2, report by International Lesbian Gay Bisexual Trans and Intersex Association, states the implementation of discriminatory laws against same-sex relations, and states that healthcare professionals have been reported to regularly tell gay and lesbian patients that their same-sex attraction and gender non-conformity are a sign of gender identity disorder that must be treated.

[9]     Item 6.6, report by UK Home Office on sexual orientation and gender identity or expression also points to the Islamic Penal Code that criminalizes same-sex sexual relations, and states that the security forces rely upon discriminatory laws to harass, arrest, and detain those they suspect of being lesbian, gay, and bisexual. Having considered this objective evidence, together with your consistent and credible testimony, I find on a balance of probabilities that you have well-founded fear of persecution in Iran.

[10]   I find on a balance of probabilities that adequate state protection would not be available to you if you were to seek it in Iran, as the agent of persecution is the state authorities. It would be unreasonable to expect you to seek state protection in this case. As already stated, that you report by UK Home Office, Item 6.6, states that security forces use laws to harass and abuse those are part of LGBTQ+ communities in Iran. Therefore, I find on a balance of probabilities that you have rebutted the presumption state protection because adequate state production will not be available to you, as the state will be unwilling to protect you in Iran.

[11]   As you have rebutted the presumption of state protection, and since the country documentation indicates about the situation for individuals in circumstances such as yours is the same throughout the country, I find on the balance of probabilities that you do not have a viable internal flight alternative.

[12]   In conclusion, after assessing ail of the evidence, I find that you have established that there is a serious possibility of persecution on the Convention ground, because of your membership in a particular social group as a gay man. I therefore find that you are Convention refugee, and I accept your claim.

[13]   All right. Thank you, that concludes this hearing.

———-REASONS CONCLUDED———-

Categories
All Countries Colombia

2021 RLLR 31

Citation: 2021 RLLR 31
Tribunal: Refugee Protection Division
Date of Decision: September 28, 2021
Panel: David Young
Counsel for the Claimant(s): Michael F. Loebach
Country: Colombia
RPD Number: TB9-22083
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000155-000157

DECISION

MEMBER:

[1]     I’ve reviewed the documents in this claim and asked the claimant some questions. I’m prepared to give my decision now.

[2]     The claimant, XXXX XXXX XXXX is making a claim against Colombia, seeking refugee protection pursuant to section 96 of the Immigration and Refugee Protection Act.

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

[4]     The allegations are set out in the claimant’s basis of claim form. They’re quite detailed and consistent throughout the narrative. They do not raise any credibility concerns that need to be addressed on what I considered to be the key issue here.

[5]     The allegations, as I see it, are on two parts. The first part is regarding gender identity. The second is regarding possible criminal targeting.

[6]     Based on the documents I’ve been supplied in, in support of the claim, I accept as credible the allegations regarding gender identity. This is, this is the (indiscernible) of the claim, this is sufficient for me to make a positive decision on.

[7]     So, I’ve not addressed the possible criminal targeting by paramilitaries because it is not necessary, and I, I make no finding on that aspect of the claim. As I said, it’s not necessary for me to, to.

[8]     The claimant’ s described his understanding of his, of his gender identity experiences. He lived as a result of that identity, and these are consistent with — as I said, internally consistent and consistent with country condition documents on Colombia. I have no reason to, to — I have no credibility concerns about, about those allegations.

[9]     The claimant submitted a passport. The passport is in the — includes the claimant’s (indiscernible) a former middle name. But I, I acknowledge that it is a passport issued to the claimant, and therefore it is sufficient to establish his identity and his, his Colombian nationality.

[10]   With regard to level of risk, this is covered in part by the claimant’s own evidence and by the, the country documents. I’m just going to refer briefly to a couple of documents that were submitted by counsel.

[11]   The first was an article contained in the 2019 package. It has one statement in particular that, that I find summarizes what, what I understand to be the situation in Colombia for the claimant and others generally situated. And it’s page 54, 55 of the country — first country condition document that speaks about the paradox between laws and practice.

[12]   The, the quote is that there is a strong — I’m going to be paraphrasing a little bit — there’s a strong legal framework, but in practice, practice it is rarely enforced. And that is my understanding from reviewing the country documents generally on, on this, this issue.

[13]   Other documents were included with the next country condition — the next package, which included country condition documents. These were all consistent and they point to, I think, persuasive evidence that you would be facing more than a mere possibility– a reasonable chance — there’s difference ways it’s phrased in the, in the, the, the jurisprudence. You would face a reasonable chance of persecution due to your gender identity.

[14]   Since gender identity is concluded in the Canadian law as coming within the parameters of the convention refugee decision — the — convention refugee definition as being a member of a particular social group.

[15]   The country documents also point to two other issues I have to address. And the first is state protection. Again, both your evidence, your statements and your narrative speak of your experiences trying to access state protection in Colombia, and the documents are consistent with that.

[16]   And, and, and I point out that your experience is part of a, a broader, a broader issue in the country. What you experienced is consistent with what happens in Colombia far too regularly, such that I would have to say that for you, there is not on, on a balance of probabilities state protection in Colombia at this time.

[17]   The laws that have been passed may eventually result in practices which could in the future mean that you would have state protection in Colombia, but I’m assessing the claim as things are now. So, as things are now, I do not find that you would have, have state protection in Colombia; would be afforded state protection in Colombia.

[18]   With regard to internal flight alternative, the problem for — that goes to, to a lack of state protection is cultural attitudes. And I, I do not see any evidence before me that there are places in Colombia you would live where the cultural attitudes would be different from what you’ve experienced or what the documents speak of. So, therefore I do not find that there is a reasonable internal flight alternative available to you in Colombia.

[19]   So, based on the reasons just given and on review of the evidence, I find you’re a convention refugee and I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Brazil

2021 RLLR 30

Citation: 2021 RLLR 30
Tribunal: Refugee Protection Division
Date of Decision: February 16, 2021
Panel: Jiyoung Kim
Counsel for the Claimant(s): Ashley Erin Fisch
Country: Brazil
RPD Number: TB9-25893
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000151-000154

DECISION

[1]     MEMBER: This is the decision for the claimant XXXX XXXX XXXX XXXX, File Number TB9- 25893.

[2]     I’ve considered your testimony and other evidence in the case, and I’m ready to render my decision orally.

[3]     You’re claiming to be a citizen of Brazil and are claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act. For making this decision and in formulating questions for the hearing, I considered Chairperson’s guideline 9 with regards to proceedings before the IRB involving claims of sexual orientation and gender identity and expression.

[4]     I find that are a Convention refugee for the following reasons;

[5]     You allege the following;

[6]     That you are citizen of Brazil, and that if you were to return, you will – you will face persecution because you are a member of a particular social group, as a transgender person.

[7]     You allege that there is no state protection for you or an internal flight alternative.

[8]     Your personal identity as citizen of Brazil has been established by your oral testimony, a copy of your passport, and your birth certificate, which can be found at Exhibit 1.

[9]     I find that on a balance of probabilities that identity and the country of reference have been established.

[10]   I find that there is a link between what you fear and one of the five Convention ground, which is your membership in a particular social group as a transgender person. Therefore, I assessed your claim under section 96.

[11]   In terms of your general credibility, I found you to be a credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim Form. Your testimony was straightforward and was in keeping with your Basis of Claim Form. There were no significant inconsistencies or omissions that went to the heart of the claim. I therefore find the following to be credible;

[12]   That you are a transgender person who faces persecution in Brazil because of your gender identity.

[13]   Your oral testimony today included details regarding your process in coming to a realization about your gender identity as well as a medical process, and the process of the name change. You’ve described the hormonal therapy you had been receiving in Brazil and in Canada. You testified regarding the different NGOs you’ve worked with since you came to Canada, (inaudible) served the members of the LGBTQ+ communities. You’ve also testified about why you had to go back to Brazil in 2017 as you had to go through (inaudible) legal procedure of having your name changed. And I did not draw negative credibility inference on your (inaudible) based on your explanation.

[14]   You’ve also testified regarding the difficulties and hardship you face in Brazil because of your gender identity.

[15]   You’ve also provided documents in support of your claim, which can be found at Exhibit 4. These include a letter and a medical document from CAMH certification of the completion of high school, (inaudible) certification and photographs of you throughout your transitioning period. There are also documents from hospital in Brazil regarding your transition as well as a XXXX report.

[16]   There are also documents regarding your legal process to change your name and gender in Brazil. You’ve also submitted letters from different NGOs in Canada, including 519, Friends of Ruby, and the Cyborg Circus Projects.

[17]   Your testimony and the supporting documentation all establish, on a balance of probabilities that you are a transgender person.

[18]   The country condition documents in the National Documentation Package for Brazil, which can be found at Exhibit 3, and the documents that counsel submitted on your behalf, which can be found at Exhibit 5, are consistent with your allegation that there is a serious possibility that you will face persecution as a transgender person in Brazil.

[19]   US Department of State’s Report, found at Exhibit 3, Item 2.1, notes that that violence against LGBTQI2S individuals as a serious concern, and that the Federal Public Ministry, who’s responsible for registering reports of crimes committed on the basis of gender or sexual orientation has been slow to respond. As of May15th there were over hundred killings of LGBTQI2S individuals in the year and that transgender individuals are particularly at risk of harm, according to the reports.

[20]   2019 report by International Lesbian, Gay, bisexual, Trans, and Intersex Association, Item 6.4 states that quote, homophobia, sexism and racism operate as a means to produce lethal violence and systemic violations of the human rights of LGBTI persons in Brazil, end quotes. Page 106. It further notes President Bolsonaro stands against LGBTQ+ community through his appointment of pastor known for her support of so-called conversion therapy as the head of public policies for human rights for men and family.

[21]   The report by Human Rights Watch, Item 2.3 also addresses the homophobic statements and restriction of the rights of LGBTQ+ people facing the (inaudible) President Bolsonaro.

[22]   Country condition documents submitted by counsel, Exhibit 5, also describes the level of risk and discrimination that transgender individuals face in Brazil.

[23]   Having considered this objective evidence together with your consistent and credible testimony, I find on a balance of probabilities that you have a well-founded fear of persecution in Brazil.

[24]   I find that adequate state protection would not be available to you if you were to seek it in Brazil as the state is the agent of persecution in this case. Therefore, I find on a balance of probabilities, that you have rebutted the presumption of state protection because state protection will not be available to you as the state will be unwilling to protect you in Brazil.

[25]   As you have rebutted the presumption of state protection, and since the country documentation indicates that situation for individuals in circumstances such as yours is the same throughout the country, I find on a balance of probabilities that you do not have a viable internal flight alternative.

[26]   In conclusion, after assessing all of the evidence, I find that you have established that there is a serious possibility of persecution on the Convention ground because of your membership in a particular social group as a transgender person I therefore find that you are Convention refugee and I accept your claim.

[27]   Okay, thank you, that concludes the hearing.

———- REASONS CONCLUDED ———-

Categories
All Countries Mexico

2021 RLLR 29

Citation: 2021 RLLR 29
Tribunal: Refugee Protection Division
Date of Decision: March 17, 2021
Panel: Vandana Patel
Counsel for the Claimant(s): Adrienne C. Smith
Country: Mexico
RPD Number: TB9-32419
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000141-000150

REASONS FOR DECISION

[1]     XXXX XXXX XXXX XXXX XXXX XXXX (the claimant), a citizen of Mexico, seeks refugee protection, under 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 Basis of Claim (BOC) forms.2 The claimant fears persecution from her family and society generally because of her gender identity. She fears that, if forced to return to the transphobic environment in Mexico, she will be subjected to persecution based on her gender identity from members of Mexican society, including certain members of her family, prospective employers and the authorities. The claimant alleges that she has been verbally, emotionally, psychologically and physically abused by members of her family and others, during her adolescence and adulthood, in Mexico. The claimant also alleges that she suffered discrimination and violence due to her gender identity.

DETERMINATION

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

ISSUES

Nexus

[4]     The claimant alleges that the persecution she faces is due to her membership in a particular social group in Mexico, namely trans 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

Credible Subjective Fear

[6]     In considering credibility, the panel is aware of the difficulties that may be faced by the claimant, a 45 year old trans woman, 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.4

[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)5 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.

[8]     The claimant was not reluctant to discuss her gender identity. She was born a male but she has openly identified as a trans female for many years, since at least when she was a teenager. She testified about her fears, including having to hide her gender identity, based on her past experiences in Mexico, if she must return to Mexico. The claimant testified that when she lived in Mexico, including in Mexico City, she had to bide her identity as a trans woman. Members of her family and other members of the community have made transphobic comments about her gender identity.

[9]     The claimant had great difficulty testifying about being abducted and sent to a “conversion therapy” clinic by her family to change her gender identity. In this regard, the panel was cognizant of the claimant’s XXXX health issues, adding to the marginalization factor. The claimant was deemed to be a vulnerable person based on medical evidence and the panel made accommodations. Guideline 8 – Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada6 was considered and applied. She testified about her fears about being misgendered. violence and being killed because of her gender identity. She fears for her safety living as a trans woman anywhere in Mexico.

[10]   The claimant’s history of social isolation, mistreatment and lack of social support and mental disabilities were considered in terms of the way she testified. The report by the XXXX resident submitted was considered; in particular the diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (in remission) and XXXX XXXX XXXX (in remission); and the significant impact of the claimant’s experience of emotional and physical violence as a result of her gender identity.7 The report states, “On assessment, she reports a significant trauma history, involving a forced institutionalization while living in Acapulco, Mexico several years ago, which has resulted in symptoms of XXXX XXXX XXXX XXXX, including reexperiencing, XXXX XXXX XXXX and negative XXXX in XXXX XXXX and XXXX.

[11]   Given that the claimant was straightforward and gave many details in other areas of her testimony, the panel accepts that she experienced a traumatic experience, involving some kind of conversion therapy that had a link to her gender identity. For example, she testified about them cutting her hair.

[12]   The claimant gave evidence as to why she had re-availed herself of Mexico after years in the U.S., why she did not make an asylum claim in the U.S. and why she took so long to make a refugee claim in Canada. The panel accepts this as not being determinative of the claim,8 given her residual profile, a trans woman, for which there is a serious possibility of forward-looking persecution in Mexico, based on the National Documentation Package for Mexico9 and the claimant’s documentary disclosure.10

[13]   Although credibility, persecution versus discrimination and whether she has a subjective fear of return to Mexico (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 years. The panel accepts that the claimant is a transgender woman and that she has a subjective fear of persecution in Mexico.

[14]   Moreover, the claimant’s testimony was corroborated by copious amounts of corroborative documentary evidence,11 including medical reports from XXXX 2020, letter of support from the Hola Group dated XXXX XXXX XXXX 2020, letter of support from XXXX XXXX XXXX XXXX XXXX Neighbourhood Centre, letter of support from XXXX XXXX XXXX, The 519 (dated XXXX XXXX XXXX 2020), letter of support from XXXX XXXX, The 519 (dated XXXX XXXX XXXX 2021), several other support letters from her friends, emails related to her asylum application in the U.S., an email from the claimant to Adam House requesting assistance in refugee and legal aid process dated XXXX XXXX XXXX 2019, other emails relating to making her claim in Canada, photographs, and media articles confirming the situation for LGBTQ communities in Mexico and in illegal rehab centres in Mexico. Thus, the panel finds, on a balance of probabilities, that the claimant has subjective fear.

Objective Basis

[15]   Transgender women in Mexico still face pervasive persecution based on their identity gender identity and expression. Documentation 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

[16]   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, many challenges remain, particularly for persons with the claimant’s profile.

[17]   While unprecedented political and legal gains have been made in Mexico, the religious, cultural and social environment in most of Mexico remains repressive, and often dangerous.13 Machista ideals of manly appearance and behavior contribute to extreme prejudices against sexual minorities, and violence against them.

[18]   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 claimant’s circumstances, 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.

[19]   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.14

[20]   A recent Response to Information Request further notes from various sources that despite the president creating the National Guard, which began its activities to fight organized crime on June 30, 2019, “at the expense of the local police forces that are experiencing precarious conditions”, “the organization has failed to address criminality in a measurable way” and “violence has not decreased in the three states with the greatest National Guard contingent.”15

[21]   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.16 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 identity documents to match their gender presentation. It is indicated:

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 trea1rnen1 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 io 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.211 Even where it is available, such care can be prohibitively expensive for transgender women already suffering the effects of economic marginalization discussed earlier.212 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.17

[22]     Further documentation notes:

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 … 18 [footnotes omitted]

[23]   Thus, the panel finds, on a balance of probabilities, that there is an objective basis for the claimant’s subjective fear.

No State Protection

[24]   In light of the above documentary evidence regarding similarly situated persons in Mexico who did not receive adequate state protection, there is sufficient evidence before the panel to conclude that, despite efforts made by the state, at this time, the state is not able to offer adequate protection19 to trans women, like the claimant.

[25]   Therefore, the panel finds that there exists clear, convincing and cogent proof that state protection is not available to trans women, 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.

Internal Flight Alternative (IFA)

[26]   With respect to an IFA, it is clear from the documentary evidence that societal prejudices against transgender persons are found all over Mexico, including Mexico City. Documentation reports as follows:

Police harassment against the LGBT community remains high in Mexico City as well. Despite the reputation of the Zona Rosa district of Mexico City as an LGBT neighborhood, extortion and harassment particularly of transgender women continues there. As described above, Mexico City also has the highest rate of transphobic murders in the country. Moving to Mexico City will therefore not protect transgender women from persecution: they will remain vulnerable no matter where they reside in Mexico.20 [footnotes omitted]

[27]   There is blatant disregard for the safety and wellbeing of trans women, like the claimant. Homicides and assaults against these groups continue under a backdrop of religious and cultural tolerance and moral condemnation. Having to hide her gender identity amounts to a serious interference with a basic human right, constituting persecution.21 Based on the evidence adduced, the panel finds that there is no viable IFA for trans women in Mexico City or throughout Mexico.

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

CONCLUSION

[29]   Accordingly, the panel accepts the claimant as a Convention refugee. The claim is accepted.

(signed) Vandana Patel

March 17, 2021

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

2 Exhibit 2, Basis of Claim (BOC) form; and Exhibit 2.1, BOC amendment.

3 Exhibit 1, package of Information from CBSA/CIC, certified true copy of the claimant’s passport.

4 Exhibit 5.

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

6 Chairperson ‘s Guideline 8 Concerning Procedures with Respect to Vulnerable Persons Appearing Be/ore the Immigration and Refugee Board of Canada.

7 Exhibit 5, disclosure, pp. 28 to 34.

8 Rajudeen v. Canada (Minister of Employment & Immigration), [1984] F.C.J. No. 601, 55 N.R. 129 (F.C.A); and

Sukhu v. Canada (Minister of Citizenship & Immigration), 2008 FC 427.

9 Exhibit 3.

10 Exhibit 5.

11 Exbibit 5.

12 Exhibit 3, item 6.3.

13 Ibid., 6. 4.

14 Ibid., 6.3.

15 Ibid., item 7.18.

16 Ibid., item 6.4.

17 Ibid., item 6.3.

18 Ibid., item 6.1.

19 Ibid., item 6.4.

20 Ibid., item 6.3.

21 Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), 2004 FC 282; See also, Rocha Cortes v. Canada (Citizenship and Immigration), 2020 FC 661; and A.B. v. Canada (Citizenship and Immigration), 2020 FC203.

Categories
All Countries Barbados

2021 RLLR 28

Citation: 2021 RLLR 28
Tribunal: Refugee Protection Division
Date of Decision: June 1, 2021
Panel: Kim Bugby
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Barbados
RPD Number: TC0-05019
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000138-000140

DECISION

[1]     MEMBER: So, I have considered that your testimony and the other evidence in your case and I am ready to render my decision orally. These are the reasons for the decision in the claim of XXXX XXXX XXXX who claims to be a citizen of Barbados and is claiming refugee protection pursuant to s. 97 and s. 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons, I have considered the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

[2]     Your allegations are fully set out in your Basis of Claim. In summary, you fear persecution at the hands of society as a transgender woman. I find that you are a refugee pursuant to s. 96 of the Immigration and Refugee Protection Act as there exists a serious possibility of persecution should you return to Barbados due to your membership in a particular social group, namely transgender women. I find that your identity as a national of Barbados is established by submission of your passport.

[3]     I find you to be a credible witness and therefore believe what you alleged in support of your claim. You testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. In particular, the following evidence establishes your allegations as set out above: psychological, medical and social work reports substantiating that you identify as a transgender woman and are undergoing hormone therapy, multiple letters of support from friends in Canada and the Caribbean substantiating your sexual identity and the issues you have faces as a result, photos of you and social media screenshots related to your social interactions. After reviewing the documents, I have no reason to doubt their authenticity.

[4]     Given that there are no serious credibility issues, with respect to your allegations, coupled with the documentary evidence set out below, I find that you have established a perspective risk of harm in Barbados. The risk is corroborated by the following documents: at Tabs 6.1 to 6. 3 the evidence indicates the discrimination against LGBT individuals was one of the most serious human rights problems in Barbados, with LGBT persons facing discrimination in employment, housing, and access to education and healthcare.

[5]     At Tabs 6.4, the documents indicate that homosexual acts are illegal in Barbados with a maximum sentence of life imprisonment. Although the laws are generally not enforced, the discriminatory legislation negatively impacts the LGBT population, giving social and legal sanction for discrimination, violence, stigma and prejudice against lesbian, gay, bisexual and transgender individuals.

[6]     Your evidence indicates that your style of dress and demeanour were inconsistent with societal expectations. At Tabs 6.1, the documents indicate that those who do not fit the gender norm are tremendously at risk in Barbados and have been subjected to physical and sexual violence. 6.4 further indicates that trans women are particularly vulnerable to attacks by their partners as well as strangers and for transgender people, social rejection intensifies as they attempt to express their gender identity. Stigma and discrimination is often manifested in the form of property damage, ostracism and verbal abuse from strangers and family alike, unjustified denial of employment, denial of housing, rejection and abandonment by family, friends and society at large. The objective evidence is consistent with your allegations and I find that the harassment, discrimination and violence you have and would face in Barbados amounts to persecution. Further, the evidence supports a conclusion that you cannot live openly and freely as a transgender woman in Barbados.

[7]     I have examined your claim under s. 96 of the Immigration and Refugee Protection Act as I conclude that the risk you describe constitutes persecution based on at least one of the grounds prescribed in s. 96, specifically your membership in a particular social group. I find that there is clear and convincing evidence before me that this state is unwilling to provide you with adequate protection, the objective evidence indicates that there are no legal protections for those who face discrimination as a result of their sexual orientation, and the police in Barbados have been denounced as discriminatory in their treatment of victims who are LGBT.

[8]     I have also examined whether a viable internal flight alternative exists for you based on the evidence on file. I find that you would face a serious possibility of persecution throughout Barbados. The country is small, and the documentary evidence indicates that authorities operate similar throughout the country and societal attitudes are also similar throughout the country. In light of the preceding, I conclude that you are a refugee pursuant to s. 96 of the Immigration and Refugee Protection Act and accordingly, I accept your claim.

———-REASONS CONCLUDED———-

Categories
All Countries Barbados

2021 RLLR 27

Citation: 2021 RLLR 27
Tribunal: Refugee Protection Division
Date of Decision: June 10, 2021
Panel: Miranda Robinson
Counsel for the Claimant(s): M. Mary Akhbari
Country: Barbados
RPD Number: TC0-11108
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000131-000137

REASONS FOR DECISION

INTRODUCTION

[1]     These are the reasons for the decision in the claim of XXXX XXXX XXXX, aka XXXX XXXX XXXX, who claims to be a citizen of Barbados, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]     This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the Act.

[3]     The panel has considered and applied the Immigration and Refugee Board’s Chairperson’s Guidelines 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[4]     The claimant’s allegations are found in her Basis of Claim form and narrative1 and amendments.2

[5]     In summary, the claimant alleges she faces persecution in Barbados at the hands of the homophobic and anti-LGBTQ community for identity as a transgender woman and sexual orientation as lesbian.

Decision

[6]     The panel finds that the claimant is a refugee, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should she return to Barbados, on account of her membership in a particular social group, specifically as a person that identifies as transgender and lesbian. The reasons are as follows.

Identity

[7]     The panel finds that the identity of the claimant as a national of Barbados is established by the documents provided, primarily the certified copy of the passport.3

[8]     The panel notes the claimant has indicated a preference for she/her pronouns and the name of XXXX XXXX XXXX. As the claimant’s identification documents still reflect the legal name of XXXX XXXX XXXX, that name has also been included in this decision, however her preferred name and pronouns will be used henceforth.

Credibility

[9]     Based on the documents in the file, the panel has noted no serious credibility issues. After reviewing the documents provided, the panel has no reason to doubt their authenticity.

[10]   To establish the claimant’s identity as a transgender female, she has provided excerpts from her blog indicating her transgender identity and some of her experiences in Barbados as a result;4 excerpts from her Facebook page showing her name as “XXXX XXXX” and referring to herself as trans;5 an email confirming the claimant’s acceptance in XXXX XXXX XXXX;6 a published article interviewing the claimant and her art;7 medical documents confirming hormone treatments the claimant is prescribed;8 letters of support from friends and family referring to the claimant in her preferred name and pronouns, and corroborating their knowledge of allegations;9 and a letter of support from the organization XXXX XXXX, which confirms her status as a client of the organization and her gender identity.10

[11]   To establish her sexual orientation, the claimant as provided a letter of support from her current partner, as well as photographs of the claimant and her current partner together;11 social media posts, photographs, and a conversation on a dating application showing the claimant’s relationship with a previous partner.12

[12]   The panel therefore finds, on a balance of probabilities, that the claimant identifies as a person that is transgender and a lesbian.

[13]   The panel finds the claimant’s subjective fear has been established.

Objective basis

[14]   Given that there are no serious credibility issues with respect to allegations of the claimant, coupled with the documentary evidence set out below, the panel finds that the claimant has established a prospective risk and well-founded fear of persecution in Barbados.

[15]   This risk is corroborated by the National Documentation Package (NDP) for Barbados -April 23, 2021 version.13

[16]   The objective evidence reports that the criminalization of consensual same-sex activity is a significant human rights issue facing Barbados. The penalty for this, although rarely enforced, includes life imprisonment.14 The presence of this law encourages anti-LGBTQ sentiments amongst the general population.15

[17]   Where the overall homophobic and anti-LGBTQ community is concerned, recent surveys have shown that approximately half of all Barbadians supported the enforcement of current laws banning same-sex activity.16

[18]   It is reported that LGBTI persons face ongoing discrimination in employment, housing, access to education and healthcare.17 The stigma and discrimination is commonly manifested in the form of property damage, ostracism, and verbal abuse from strangers, friends, family, and society at large.18 Activists have indicated that police disapproval and societal discrimination has made LGBTI persons more vulnerable to threats, crime, and destruction of property.19

[19]   Societal discrimination in Barbados is further exacerbated by public figures and church leaders condemning sexual minorities and labelling the “gay agenda” a threat to human existence.20 Popular media outlets have trivialized physical and sexual violence against the LGBTQ community and emphasize the lack of value placed on LGBTQ lives in Barbados.

[20]   It is additionally reported that LGBTI persons in Barbados face immense pressure to simply conform to traditional gender norms in order to appease society. Those that do not conform face a risk of physical and sexual violence, with transgender women being among the most at risk.21

[21]   The panel therefore finds the objective basis for this claim has been established.

Nature of the harm

[22]   The panel has examined this claim under section 96 of the IRPA, as it concludes that the risk the claimant faces constitutes persecution based on at least one of the grounds prescribed in the Refugee Convention, specifically her membership in a particular social group, as a transgender woman and lesbian.

[23]   The panel finds the claimant faces risk in the form of harassment, discrimination, threat of physical and psychological harm, and an inability to live openly as either a transgender female or lesbian.

State Protection

[24]   The panel finds that there is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection.

[25]   As outlined above, the laws banning consensual same-sex acts in Barbados carry heavy sentences, and there are limited legal protections for those facing discrimination as a result of sexual orientation or gender identity. The potential for arrest and prosecution under these laws is reported to be among the most serious issues facing the LGBTI community in Barbados.22

[26]   It is further reported in objective country documentation that police can be “very dismissive” of LGBTQ persons and of transwomen.23 Additionally, most members of the LGBTQ community do not report matters to police out of fear of further negative repercussions and ridicule. Reports state that police in Barbados have been denounced as discriminatory in their treatment of LGBT victims, and that individuals attempting to make reports have faced condemnation by police officers. Justice is very rarely served for LGBT cases and many charges are dropped after years of waiting, incomplete investigations and police complacency.24 Alternate sources also confirm police disapproval of the LGBTQ community contributes to the vulnerability of its members.25

[27]   The panel therefore finds the presumption of state protection in this case has been rebutted.

Internal flight alternative

[28]   The panel has examined whether a viable internal flight alternative exists for the claimant. Based on the evidence on file, the panel finds that the claimant faces a serious possibility of persecution throughout Barbados. As the legal framework and anti-LGBTQ atmosphere is consistent throughout Barbados, there is no part of the country where the claimant would be able to live freely as a sexual minority and with her transgender identity.

Conclusion

[29]   In light of the preceding, the panel concludes that the claimant is a Convention refugee, pursuant to section 96 of the IRPA and accepts this claim.

(signed) Miranda Robinson

June 10, 2021

1 Exhibit 2, Basis of Claim (BOC) form, 08 April 2020

2 Exhibit 6, BOC Amendment, 27 April 2021

3 Exhibit 1, Claim Referral Package from IRCC/CBSA

4 Exhibit 5, Personal Disclosure, 27 April 2021

5 Ibid., Exhibit 5

6 Ibid., Exhibit 5

7 Ibid., Exhibit 5

8 Ibid., Exhibit 5

9 Ibid., Exhibit 5

10 Exhibit 7, Personal Disclosure, 03 May 2021

11 Ibid., Exhibit 5

12 Ibid., Exhibit 5

13 Exhibit 3, National Documentation Package (NDP) for Barbados, 23 April 2021

14 Exhibit 3, National Documentation Package (NDP) for Barbados, 23 April 2021, item 2.1

15 Exhibit 3, National Documentation Package (NDP) for Barbados, 23 April 2021, item 6.1

16 Ibid., Exhibit 3, item 6.1

17 Ibid., Exhibit 3, item 2.1

18 Ibid., Exhibit 3, item 6.1

19 Ibid., Exhibit 3, item 2.1

20 Exhibit 3, National Documentation Package (NDP) for Barbados, 23 April 2021, item 6.2

21 Ibid., Exhibit 3, item 6.2

22 Ibid.. Exhibit 3, item 2.1

23 Ibid., Exhibit 3, item 6.1

24 Ibid., Exhibit 3, item 6.1

25 Ibid., Exhibit 3, item 2.1

Categories
All Countries Jamaica

2021 RLLR 26

Citation: 2021 RLLR 26
Tribunal: Refugee Protection Division
Date of Decision: July 22, 2021
Panel: Gregory Israelstam
Counsel for the Claimant(s): Pablo A Irribarra Valdes
Country: Jamacia
RPD Number: TC0-11961
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000127-000130

DECISION

[1]     MEMBER: Welcome back, everybody. It is 2:34, and we are back on the record.

[2]     CLAIMANT: Thank you, [inaudible].

[3]     MEMBER: Sir, I am now going to read my decision and the reasons for my decision. Are you ready?

[4]     CLAIMANT: Yes.

[5]     MEMBER: Okay.

[6]     CLAIMANT: Thank you.

[7]     MEMBER: These are the reasons for the decision under the Immigration and Refugee Protection Act concerning XXXX XXXX XXXX XXXX.

[8]     XXXX XXXX XXXX, the claimant, seeks protection pursuant to s. 96 of the Immigration and Refugee Protection Act. The claimant is a citizen of Jamaica.

[9]     The allegations of his claim can be found in his Basis of Claim form and in his testimony. The claimant alleges a fear of persecution on the basis of membership in a particular social group. In particular, the claimant alleges a fear of persecution on the basis of his gender identity. The claimant alleges that as a transgender man, should he return to Jamaica, he would be subject to discrimination, harassment, and an increased risk of violence at the hands of society in general.

[10]   At the outset of the hearing, I identified credibility as a primary matter for the hearing to focus on. In particular, an assessment of credibility was required to determine whether the claimant is, as he alleges, a transgender man, and whether he fears persecution as a result.

[11]   With respect to identity, on the file at Exhibit 1 are certified copies of the claimant’s passports from Jamaica. Other identification documents can be found at Exhibit 1 and 4. Through these documents, and his testimony, the claimant has established his personal identity, and his citizenship of Jamaica.

[12]   With respect to credibility, the claimant testified at the hearing. The claimant testified under oath as presumed to be telling the truth, unless there are valid reasons to disbelieve the testimony. In this case, I find no valid reason to reject the claimant’s testimony with regard to his gender identity and his fear of persecution in Jamaica. The claimant was straightforward and spontaneous in his testimony. His testimony contained no material inconsistencies or contradictions. The testimony was consistent with the narrative found in his Basis of Claim form and was supported by a considerable number of documents submitted at Exhibit 4. These documents included medical reports, letters of support from people who knew the claimant in Jamaica, press articles confirming that the claimant has been active in the LGBTQ community in Jamaica, and photographs of the claimant at LGBTQ events.

[13]   Overall, the claimant provided credible and trustworthy testimony. The claimant testified that he was assigned a gender of female at birth. He discovered his gender identity when he was very young. He faced harassment and abuse at school and at home because he was perceived as having masculine mannerisms and he was attracted to women. The claimant testified that he did have a number of relationships with women at high school and during university. On a number of occasions, he had been threatened with violence or sexual assault to cure him. At one point in university, he narrowly escaped assault from a group of teenage boys who had been following him and his date. The claimant testified that he was also subject to discrimination and harassment at his workplace.

[14]   The claimant testified that he began hormone replacement therapy as part of his transition in 2015. He informed his workplace, a technical company named XXXX (ph). Although his supervisor undertook to attempt to aid in the transition in the workplace, the claimant testified that he continued to face harassment and abuse from colleagues. The claimant included other instances of threats or harassment short of actual assault in his Basis of Claim narrative. He testified that he did not go to the police because the police were homophobic, and often allied with people who might attack him.

[15]   The claimant testified that after he left XXXX, he discovered that somebody from that company had outed him as transgender without his consent or knowledge. In the claimant’s Basis of Claim narrative, he describes how this made it difficult for him to secure work.

[16]   The claimant testified that he felt he had to leave Jamaica by 2020. He testified that his XXXX health was suffering because of the stress of having to conceal his identity, as well as the fear of violence. The claimant testified that he was aware of other transgender people who had been assaulted.

[17]   In light of my findings with respect to the credibility of the claimant and the extensive supporting evidence, I find, on a balance of probabilities, the claimant is, as alleged, a transgender man. I further find that he has a fear of persecution on the basis of his gender identity in Jamaica.

[18]   Having found the claimant to have a subjective fear of persecution, I turn to the question of whether this fear has an objective basis. Country condition reports in the Immigration and Refugee Board’s National Documentation Package for Jamaica, dated 16th of April, 2021, support the claimant’s allegation that he is at heightened risk of violence, harassment, and discrimination in Jamaica because of his gender identity. Homophobia remains prevalent throughout Jamaican society, and transgender persons in particular are at high risk of harassment and violence.

[19]   I conclude that the claimant does have an objective basis for his fear of persecution. As such, the claimant has a well-founded fear of persecution.

[20]   The claimant testifies that he does not believe that the police would be able to help him escape a heightened risk of violence. Item 6.2, 6.5, and 6.7 of the National Documentation Package for Jamaica supports this allegation. Jamaica remains a deeply homophobic society, and transgender individuals face a higher risk of discrimination in the workplace, the provision of services, as well as harassment and an increased likelihood of ill-treatment and violence. While steps have been taken by the Jamaican government to address these issues in the hopes that the LGBTQ community will feel safer reporting violence or abuse to the police, in practice, these steps have not been successful. The police continue to often turn a blind eye towards persecution and may even be complicit to such persecution.

[21]   I conclude that there is compelling evidence that the state is unable or unwilling to protect the claimant against persecution. With respect to an internal flight alternative, given the pervasiveness of homophobia and anti-trans sentiments throughout Jamaica, I find there would be no reasonable internal flight alternative to the claimant in Jamaica.

[22]   My conclusion is this. Based on the evidence before me, and the testimony of the claimant, I conclude that the claimant has established a serious possibility of persecution on the Convention ground of membership in a particular social group if he were to return to Jamaica. The claimant is therefore a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act. His claim for protection is accepted.

[23]   That concludes my reasons. Sir, do you have any questions?

[24]   CLAIMANT: No, sir. Just a point — I think, in delivering your decision, you said that I started hormone replacement therapy in XXXX XXXX 2015. I actually started in XXXX XXXX 2016.

[25]   MEMBER: Thank you. My apologies. I think I got that from the Basis of Claim form, so — all right. I appreciate you correcting me. Other than that, do you have any questions?

[26]   CLAIMANT: No, sir, just — thank you.

[27]   MEMBER: I would like to thank you for answering all my questions. I do appreciate that they were personal questions, and they may have brought back some difficult memories, so I would like to thank you for being honest and open with me today. I would like to thank your counsel, who provided an excellent evidentiary record that made it very easy for me to come to a positive decision.

[28]   COUNSEL: Thank you.

[29]   MEMBER: And, if there is nothing else, sir, I wish you all the success possible in your new home.

[30]   CLAIMANT: Thank you, sir.

[31]   COUNSEL: Thank you. Have a good week.

[32]   MEMBER: The hearing is concluded. Have a good day, everybody.

[33]   CLAIMANT: You too.

[34]   COUNSEL: [inaudible].

———-REASONS CONCLUDED———-

Categories
All Countries Saudi Arabia

2021 RLLR 25

Citation: 2021 RLLR 25
Tribunal: Refugee Protection Division
Date of Decision: July 8, 2021
Panel: Deborah Coyne
Counsel for the Claimant(s): (no information)
Country: Saudi Arabia
RPD Number: TC0-12715
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000123-000126

DECISION

[1]     MEMBER: These are the reasons for decision in the claim of XXXX XXXX XXXX who claims to be a citizen of Saudi Arabia and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.  In deciding this claim, the Panel applied the Chairpersons’ Guideline 9, the proceedings before the IRB involving sexual orientation and gender identity and expression.

Allegations

[2]     The allegations are set out in the Basis of Claim form. The claimant alleges a serious possibility of persecution in Saudi Arabia because of her sexual orientation and gender identity. The claimant was born as a male but self-identifies as a female and completed the gender transition in Malaysia. She alleges that she faces serious persecution and life-threatening harm if she has to return to Saudi Arabia.

Decision

[3]     The Panel finds that the claimant faces a serious possibility of persecution should she return to Saudi Arabia because of her membership in a particular social group, specifically based on her sexual orientation and gender identity as a transgender woman. She is, therefore, a refugee pursuant to Section 96 of the IRPA.

ANALYSIS

Identity

[4]     The Panel finds that the identity of the claimant as a national of Saudi Arabia is established by the claimant’s Saudi Arabian passport in Exhibit 1.

Credibility

[5]     Based on the testimony and the documents in the file, including the detailed Basis of Claim, the Panel has noted no serious credibility issues. On a balance of probabilities, the Panel finds the following to be true: that the claimant was born as a male in Saudi Arabia in 1996. Since a very young age, the claimant was aware that she was not like other boys and that she preferred the female identity. She was abused and threatened mentally and physically by her father throughout her childhood, especially when her father took custody of him and his sister, away from their mother after their parents’ divorce. She suffered physical and mental bullying at school.

[6]     In 2019, the claimant was able to travel to Malaysia for studies and the claimant started the HRT process to transition his gender to female. Exhibit 5 includes documents from the claimant’ s XXXX in Malaysia that explains the claimant’ s treatment and progress.

[7]     The claimant’ s family found out when the claimant returned to Saudi Arabia to attend his sister’ s wedding. The claimant’s father and other relatives threatened his life and the claimant’s mother insisted that the claimant leave Saudi Arabia immediately as the pandemic was starting to shut down flights out of Saudi Arabia. The claimant was able to get a TRV to come to Canada and arrived in XXXX 2020.

[8]     The claimant submitted her claim for refugee protection and cannot return to Saudi Arabia where she fears persecution and death because of her gender identity and sexual orientation as a transgender woman.

[9]     The Panel finds that the claimant’s narrative and evidence was internally consistent and plausible. There were no contradictions or omissions that go to the core of the claim. The allegations were supported by personal documents in Exhibit 5 that the Panel finds credible, and that establishes the claimant’s identity as a transgender woman. These include letters from the doctor in Malaysia who provided the HRT treatment and related medical documents, as well as some photos.

[10]   The Panel accepts the evidence as establishing on a balance of probabilities the claimant’ s subjective fear of persecution because of her gender identity and sexual orientation if she returns to Saudi Arabia.

[11]   The objective evidence in the National Documentation Package for Saudi Arabia in Exhibit 3 indicates that LGBTQ rights are not recognized and confirms that both male and female, same sex sexual activities are illegal. Saudi citizens must comply with uncodified criminal code based on Sharia Law and within this framework, sex outside of marriage is illegal, same sex marriage is not permitted and same sex intimacy is criminalized.

[12]   In Saudi Arabia, homosexuality and being transgender is widely regarded as immoral and indecent. The law imposes severe punishments for acts of homosexuality and cross dressing such as torture, prison up to a lifetime and capital punishment. Members of the LGBTQ community are ostracised and, in some cases, exposed by their own family members.

[13]   The situation faced by transgender persons in Saudi Arabia is corroborated by news reports and reports submitted by the claimant and also in Items 2.1, 2.4, 2.9, 6.1, 6.2, and 6.3 of the NDP. The Panel finds that the claimant’s subjective fear of persecution and death as a transgender woman in Saudi Arabia is well founded.

State Protection

[14]   Since being a transgender woman is criminalized in Saudi Arabia, the Panel finds that it is clearly unreasonable for the claimant to ask for the protection from the Saudi authorities. The Panel finds the claimant has rebutted the presumption of state protection with clear and convincing evidence.

Internal Flight Alternative

[15]   The Panel has considered whether a viable Internal Flight Alternative exists for the claimant. The Panel finds that the claimant faces a serious possibility of persecution throughout Saudi Arabia because of her sexual orientation and gender identity, and, therefore, the Panel finds the claimant does not have a viable Internal Flight Alternative within Saudi Arabia.

CONCLUSION

[16]   The Panel finds that the claimant faces a serious possibility of persecution should she return to Saudi Arabia because of her membership in a particular social group, specifically based on her sexual orientation and gender identity as a transgender woman. She is, therefore, a refugee pursuant to Section 96 of the IRPA and the claim is accepted.

———- REASONS CONCLUDED ———-