Tag: PSG: SOGIE

2019 RLLR 154

Citation: 2019 RLLR 154
Tribunal: Refugee Protection Division
Date of Decision: December 9, 2019
Panel: S. Randhawa
Counsel for the Claimant(s): El-Farouk Khaki
Country: Bahamas
RPD Number: TB7-23928
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000093-000096

[1] PRESIDING MEMBER: I’ve asked you questions and I’ve listened to counsel’s submissions at this point and I am ready to render my decision and I have reviewed the evidence that’s before me and it’s in abundance including your testimony and I have considered counsel’s submissions.

[2] I reserve the right to – this decision is final, but I reserve the right to edit the written version of the reasons for syntax, spelling and grammar and to add references to legal citations and footnotes of country conditions, country documentary evidence as necessary.

[3] Now you are claiming refugee protection pursuant to Section 96 and Section 97.(1) of the Immigration and Refugee Protection Act.

[4] You were born on XXXX XXXX XXXX XXXX, and you’re claiming to be a citizen of Bahamas.

[5] Now your allegations are presented in your Basis of Claim Form which are the original narrative and then there is the amended narrative and then there is an amendment to the amendment.

[6] Basically your allegations are that you are – from the beginning you were lesbian, you liked women and then basically you started as a male and you considered yourself as a male. I’m not going to repeat all the allegations that are in the part of your Basis of Claim Form.

[7] Now my determinations are that I find you to be a Convention refugee pursuant to Section 96 of the IRPA and a person in need of protection under Section 97 and I find that you’ve established your claim on a balance of probabilities that you are indeed – you were lesbian, you’re transcending into being a transgender male.

[8] Now I have also taken into consideration the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, that is the SOGIE Guidelines. I’m satisfied and accept your personal identity as a citizen of Bahamas since there is a true, certified copy of your Bahamas passport and you recently provided your birth certificate.

[9] There was – I had to consider country of reference because of the reference made to your father being from Turks & Caicos (ph). However, according to the birth certificate it indicates that your father was from Bahamas. So I’m not going to address further than that on that issue. I accept that you are who you say you are. You ‘re transcending into a transgender male.

[10] You have testified – you have clarified the facts and you have testified spontaneously. There were certain times that you corrected the counsel and me. However, when a claimant swears that certain facts are true this creates a presumption that they are indeed true unless there is a valid reason to doubt their voracity.

[11] You identified that there was discrimination and that your family also did not accept the way you were and in the SOGIE Guidelines it’s stated that: “Some individuals with diverse SOGIE may face different risks due to additional factors such as race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education. Where appropriate, these intersectional factors should be considered when determining whether an individual has established a well-founded fear of persecution.”

[12] In your case you did not embellish or exaggerate.

[13] The issues identified, one of the issues was failure to claim in the U.S. You have visited U.S. two times or three – more than three times and you had a visa to go to U.S. You did not file a claim and your reasoning was that you did not know what to do. There were several ways – your counsel and I asked you why would you not ask some people and your basic answer was that you did not know, you didn’t – second time you said people – the way – when counsel asked you did you know the way people can stay permanently in U.S. you said that they were there on student visa and as student then you could stay. However, you returned back several times, but I do accept your explanation about that.

[14] And there was a re-availment from Canada two times and your explanation was that your current partner at that time you were going to – XXXX (ph) I believe was – you were going to marry her and the marriage didn’t go through. She said she didn’t love you anymore and the marriage fell apart.

[15] You were asked about sponsorship and you said you were not aware of it. You were asked whether – XXXX XXXX (ph) who is here (inaudible) you said that you only spent few hours with her that you didn’t know.

[16] Now the documentary evidence which counsel quoted and the documentary evidence from NDP package which is our number BHS104686.E, it tells us about what the legal situation in Bahamas is. Sources indicate that homosexuality was decriminalized in Bahamas in 1991.

[17] However, it also states the Bahamas is the only English-speaking Caribbean country where same sex acts are legal.

[18] However, the same document states that protection against discrimination in the workplace based on sexual orientation is not addressed in the Employment Act of 2001 of Bahamas.

[19] Now in the same document there’s a quotation from the Cari-FLAGS coordinator providing the following Caribbean context to explaining homophobia in Bahamas. “In the British Caribbean, hyper-masculinity is valued and black men especially are expected to perform their masculinity in compliance with the hegemonic norm. Openly gay men, effeminate men or transgender people are seen as betraying manhood. These values are rigidly policed and it is culturally acceptable to exert physical violence against men who betray these gender norms.”

[20] This same document goes on to state that: “Majority of LGBT people are not ‘out’ in the traditional sense, they balance degrees of visibility and invisibility in their personal and professional circles. Physical and psychological violence is typically directed towards ‘out’ LGBT people like activists, and others who declare publicly their orientation or gender identity.”

[21] And the same documents indicates that LGBT people in the Bahamas have been subject to violence, including killing.

[22] There are further indication in this document which indicates that considering – now failure to claim in and of itself is – does not negate your claim. So I’m accepting your explanations for that and the documentary evidence supports your claim and you have presented your psychological reports and the reports from Sherbourne Clinic that you are advancing to your next stage of taking treatment.

[23] So reviewing all the – considering all the evidence and your counsel’s submissions I find on a balance of probabilities that you are a transgender man, you were lesbian going to transgender and that your testimony was credible and the documentary evidence supports your claim. Therefore, I accept your claim. Good luck.

CLAIMANT: Thank you.

COUNSEL: Thank you.

PRESIDING MEMBER: Thank you.

—- REASONS CONCLUDED —–

All Countries India

2019 RLLR 153

Citation: 2019 RLLR 153
Tribunal: Refugee Protection Division
Date of Decision: November 4, 2019
Panel: Georgia Pagidas
Counsel for the Claimant(s): Tony Manglaviti
Country: India
RPD Number: MB7-19949
Associated RPD Number(s): MB7-19977 / MB7-19978
ATIP Number: A-2022-00978
ATIP Pages: 000027-000033

REASONS FOR DECISION

INTRODUCTION

[1] This is the decision of the Refugee Protection Division (the Panel) in the claim for refugee protection of XXXX XXXX (“the claimant”) and his parents, XXXX XXXX XXXX (“the father”) and XXXX XXXX (“the mother”), all citizens of India. The claimants are seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).¹

[2] The claimant’s allegations are detailed in the narrative annexed to the Basis of Claim form (BOC).² The following is a summary of the allegations therein.

DETERMINATION

[3] Having considered the totality of the evidence, the Panel finds that the claimants are “Convention refugees”.

ALLEGATIONS

[4] The claimant alleges he is a gay man from India.

[5] The claimant fears returning to his country due to his sexual orientation which has put his life and his parents’ lives in danger.

[6] The claimant alleges that in 2013, when he went to senior secondary school, he met his partner XXXX XXXX XXXX XXXX XXXX who was already studying in this school.

[7] The claimant’s parents learned about his sexual orientation in XXXX 2015. The claimant alleges that they were both shocked and saddened, but that they soon began to support him.

[8] Police arrested XXXX on XXXX XXXX XXXX 2017, and he confessed about his relationship with the claimant. The claimant alleges that XXXX parents were very strict and conservative, and that they beat XXXX following his release.

[9] On XXXX XXXX XXXX 2017, upon the complaint of XXXX parents who believed that he contributed to spoiling their child, the claimant’s father was arrested. He was detained in the police station for two days. He was forced to pay money to secure his release.

[10] The claimant alleges that thereafter his relationship with XXXX ended. He also alleges that his father’s business had to be closed, as they were boycotted by the community.

[11] The claimants applied for refugee status in Canada, on XXXX XXXX XXXX 2017.

Identity

[12] The claimants’ personal and national identities are established, on a balance of probabilities, by the documentary evidence on file, specifically their passports seized by the Canadian authorities, copies of which are produced in the file.³

Credibility

[13] In this context, the determinative issue for the Panel is whether or not the claimant has credibly established, on a balance of probabilities, that he is homosexual. On the basis of the evidence before it, the Panel finds that the claimant has established that he is homosexual.

[14] In deciding this claim, the Panel considered the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.⁴

[15] Testimony given under oath is presumed to be true unless there is a reason for doubting its truthfulness. In this claim, the Panel has no such reasons.

[16] The Panel finds the claimant was credible with regards to the determinative issue of his claim. The Panel finds the claimant is credible for the following reasons.

[17] The claimant testified at the hearing in a straightforward manner. He was detailed and open in his answers to the Panel’s questions, and at no time he did try to embellish or exaggerate his allegations as it appears in the examples below.

Discovery of Sexual Orientation

[18] When asked about his discovery of his sexual orientation, the claimant was able to provide a great deal of detail about how he saw himself growing up. He explained that from a young age he realized that he was different when he compared himself to his peers. He felt no attraction for girls, but instead fantasized about boys. As he grew up, he was curious and searched on the internet to learn more about his homosexuality. His descriptions were sincere and believable, and his testimony was not embellished nor rehearsed. There were no discrepancies or inconsistencies in his testimony, nor were there any relevant omissions in his BOC that were not reasonably explained. As a result, the Panel finds that, on a balance of probabilities, the claimant is credible with respect to the discovery of his sexual orientation.

First Intimate Same Sex Relationship

[19] The claimant testified that his first same-sex relationship began around 2013 in secondary school with his classmate XXXX XXXX, whom he referred to as “his partner” throughout the hearing. His description matched the information contained in his BOC. He took the Panel through the development of his relationship with XXXX, which started as friends at the end of 2013 until it became serious. The claimant testified that he became intimate with XXXX in the XXXX of 2014. He also provided details, such as how he felt both happy and shocked that XXXX accepted his first kiss and how they planned the precautions they would take to avoid raising suspicion in the public, and particularly with XXXX family. He described the emotional ties that had developed between the two of them, and how they spent hours talking in parks, doing yoga together and watching movies. There was coherency to the claimant’s oral testimony that demonstrated the claimant’s credibility. There were no discrepancies between claimant’s testimony and his BOC, nor were there any relevant omissions. As a result, the Panel finds that, on a balance of probabilities, the claimant is credible with respect to his first same-sex relationship.

Life in Canada

[20] The claimant also testified about having a casual encounter with two other men in Canada, one of which appearing in the photos he submitted.⁵ He testified with enthusiasm that he has started organizing entertainment events for his South Asian Community in Montreal, and how he along with others are trying to find a “way to organize a gay event”.

Corroborative Oral and Documentary Evidence

[21] When the claimant’s father was asked about the incident of his arrest on XXXX XXXX XXXX 2017, he testified in a sincere and open manner. He confirmed the allegations in the BOC narrative and he explained his problems with the police and the parents of XXXX clearly. When asked about his fear, the claimant’s father was spontaneous and sincere in expressing to the Panel his feelings of fear ever since the incidents with XXXX parents and the police occurred. He added that his fear is ongoing despite the fact that he is in Canada, because of the summons that was issued for his arrest in India. The Panel finds his testimony credible. In support of their claims, the claimants submitted a lawyer’s letter⁶, a police summons⁷, a medical report⁸ and a XXXX report⁹. The Panel finds that the claimant’s parents established that the underlying cause of their fear is related to the aforementioned events. The Panel further finds these documents credible and affords them full weight.

[22] The claimant also provided three photographs of himself with his partner. He described in detail the context in which the pictures¹⁰ were taken and how they were taken. He also provided pictures¹¹ of himself and two gay friends in Canada that he referred to in his BOC. Again, the claimant was able to describe the context in which these photos were taken and his testimony was consistent with the allegations in his BOC. Therefore, the Panel affords full weight to these pictures.

STATE PROTECTION

[23] The Panel finds that the claimants have rebutted the presumption of state protection with clear and convincing evidence that the Indian state would be unwilling or unable to provide them with adequate protection. The Panel took into account the substantial documentary evidence from independent and reliable sources on the situation in this country from the National Documentation Package for India.¹²

[24] The Panel recognizes that the documentary evidence reports¹³ that same-sex consensual relations were decriminalized in India, in XXXX 2018, when the Supreme Court declared that Section 377 of the Penal Code was unconstitutional. The evidence reports¹⁴ that the decriminalization of same-sex conduct will not immediately result in full equality for the LGBT community in India. While the Supreme Court judgement held that the aforesaid reading down of Section 377 shall not lead to the reopening of any concluded prosecutions, the documentary evidence reports that it is too early to draw any conclusions for pending arrests and cases.

[25] The summons to the claimant’s father was issued prior to the Court decision and the claimant’s name is still on file with the police. Furthermore, the documentary evidence¹⁵ confirms that violence, abuse and harassment suffered at the hands of the police still exist throughout India and the Panel therefore finds that the claimants would be at risk.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[26] The Panel proposed Mumbai as a possible IFA for the claimants.

[27] The Panel finds that the claimants have established that, on a balance of probabilities, they face a serious possibility of persecution in Mumbai. The Panel therefore finds that there is no viable IFA for the claimants in India.

[28] The claimant’s father is a person of interest to the police and the principal claimant became known to them through XXXX and co-claimant’s arrests by the police.

[29] Furthermore, the documentary evidence¹⁶ reports tenant registration is existent in Mumbai. The purpose of tenant registration is for authorities to verify the identities of the tenants and to confirm that they are not wanted criminals, terrorists or fugitives from the law.¹⁷

[30] In view of all these particular circumstances, the Panel concludes that the claimants would face a serious possibility of persecution should they return to India and live in Mumbai.

[31] Given that the first prong of the internal flight alternative test has not been met, there is no need to consider the second prong.

CONCLUSION

[32] For the foregoing reasons, the Panel concludes that there is a serious possibility that the claimants would be persecuted on the basis of their membership in a particular social group, namely Indian homosexual man and family, in the event of their return to India.

[33] The claimants XXXX XXXX, XXXX XXXX XXXXandXXXX XXXX XXXX are “Convention refugees” pursuant to section 96 of the Act. Their claims are therefore accepted.

Georgia Pagidas

November 4, 2019

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

² Document 2 – Basis of Claim Form (BOC).

³ Document 1 – Package of Information from the referring Canada Border Services Agency (CBSA) / Immigration, Refugees and Citizenship Canada (IRCC): Passports.

⁴ Chairperson’s Guideline 9 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant

to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017.

⁵ Document 4 – Exhibit C-6 : Pictures (in bulk).

⁶ Document 4 – Exhibit C-2 : Lawyer ‘s letter.

⁷ Document 4 – Exhibit C-5 : Summon to claimant ‘s father.

⁸ Document 4 – Exhibit C-3 : Medical report.

⁹ Document 4 – Exhibit C-7 : XXXX report.

¹⁰ Supra note 5.

^l1 Idem.

¹² Document 3 – National Documentation Package, India, 31 May 2019 (NDP India), tab 6.1: Response to Information Request, IND106287.E, Immigration and Refugee Board of Canada, 9 May 2019.

¹³ Document 3 – NDP India, tab 6.6: Country Policy and Information Note. India: Sexual orientation and

gender expression. Version 3.0, United Kingdom, Home Office, October 2018.

¹⁴ Idem.

¹⁵ Idem.

¹⁶ Document 3 – NDP India, tab 14.8: Response ta Information Request, IND106289.E, Immigration and Refugee Board of Canada, 14 May 2019.

¹⁷ Idem.

All Countries Pakistan

2020 RLLR 172

Citation: 2020 RLLR 172
Tribunal: Refugee Protection Division
Date of Decision: January 9, 2020
Panel: Lesley Stalker
Counsel for the Claimant(s):
Country: Pakistan
RPD Number: VB9-03502
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000168-000172

— DECISION

[1] PRESIDING MEMBER: This is a Bench decision of the Immigration and Refugee Board in the refugee claim of XXXX XXXX XXXX, file number VB9-03502. XXXX XXXX XXXX is a citizen of Pakistan who is claiming refugee protection pursuant ss. 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] In rendering my decision, I have considered the Chairperson’s guideline on proceedings before the Immigration and Refugee Board involving sexual orientation and gender identity and expression, more commonly known as the SOGI guidelines.

ALLEGATIONS

[3] You detailed your allegations in your basis of claim form. You fear persecution in Pakistan at the hands of your father, civil society and state authorities given your sexual orientation as a bi-sexual man and your atheist beliefs.

DETERMINATION

[4] I find that you are Convention refugee as you have established as a serious possibility of persecution in Pakistan on account of your membership in a particular social group, namely bi-sexual men.

ANALYSIS

Identity

[5] I find that your identity as a national of Pakistan has been established by your testimony and by your passport, a certified true copy of which is on file.

Credibility

[6] 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 were spontaneous and you did not appear to exaggerate or embellish your claim.

[7] When asked why you identify as a bi-sexual man, you explained that you are attracted to both men and women. You explained that this creates some isolation even within the LGBTQ community as you are neither fully accepted by the heterosexual community nor by the gay community. You said that when you sought support at Winnipeg’s Rainbow Resource Centre they questioned whether you might be confused about your sexuality.

[8] You spoke movingly about your struggles to accept who you are and to love yourself. You are trying to overcome some of the early values that you learned about human sexuality and to come to terms with your family’s rejection of you.

[9] You filed a number of documents which corroborate your allegations, these documents which are found in Exhibit 4 include letters from friends and acquaintances who confirm that you had spoken to them about your struggles with your sexuality.

[10] Some of these letters indicate that you identified yourself as bi-sexual as early as 2016 or 2017. Some comment about the prevalence of homophobic remarks or jokes in their circle of friends which they believe affected your ability to disclose your sexuality more openly. On writer describes walking in on you in a compromising situation.

[11] You filed a letter from the University of XXXX Student Counselling Centre which states that you spoke about your sexuality during a session in 2015 and about your fear for your safety if you return to Pakistan.

[12] A recent letter from the XXXX XXXX Clinic indicates that you received an initial consultation with the clinic relating to XXXX XXXX XXXXand XXXX XXXX. Amongst the issues discussed was your fear that your father would disown you because of your atheism and your bi-sexuality. The clinic says that they referred you to a XXXX health centre for lower cost XXXX.

[13] When asked why you call yourself an atheist, you testify that you do not believe in God and that you believe that religion was created as a tool to help greedy people attain political power.

[14] Based on your testimony and the corroborative evidence before me, I find that you are a bi-sexual man and that you are an atheist.

Nexus

[15] I find that the persecution you fear in Pakistan has a connection to two Convention grounds. First, your fear is based on your membership in a particular social group, namely bi-sexual men. Secondly, you have a fear of harm because of your atheist views which has a nexus to the Convention ground of religion.

[16] As such, I have analyzed your claim under s. 96 of the Act.

Well-Founded Fear of Persecution

[17] I find that you have established a well-founded fear of persecution by reason of your sexual orientation for the following reasons:

[18] You testified that your father is a fundamentalist Muslim. Your father is your only surviving close relative as your mother passed away when you were 10. Your relationship with your father has long been difficult due to your clashing views on religion and sexuality. You asked when — you said that when you asked your father if it was wrong for the prophet to marry a 13-year-old girl, he became abusive and threatened to kill himself and your stepmother because of your blasphemist views. Your father arranged for an Imam to tutor you in Islamic studies. The Imam would beat you with sticks and other objects. You testified that your father also beat you with a cricket bat when you were 14 because you received a “XXXX” in religious studies.

[19] You became aware that you were attracted to men when you were a teenager. You remember experiencing feelings of remorse, shame and denial after a relatively innocuous encounter and you tried to pray the incident away.

[20] When you came to Canada, you were allowed to be more open about your sexuality. You described your burgeoning awareness, and this was in your basis of claim form, that you were an atheist. Until you came to Canada, your experience of religion was an abusive manipulative tool. You learned that in Canada you could publicly say that you did not believe in God without repercussion.

[21] When a Pakistani friend of yours came to Canada to study he informed your father that you were defying Islamic values. Your father told you that you had been brainwashed and accused you of being a cafer (phonetic) and on one occasion he gathered a group of neighbours and uncles who called you and collectively advised you to tum back to religion.

[22] You say that your father has cut off your funding and has disowned you. You have been receiving hate messages from people in Pakistan by Facebook and text message. You have blocked the senders but the messages that you filed in evidence illustrate the level of hatred that you face in Pakistan.

[23] The country condition documents on Pakistan provide an objective basis to your claim. The documents demonstrate that same-sex relationships are illegal and societal discrimination is severe and widespread.

[24] The UK Home Office Report on sexual orientation and gender identity, which is found at Tab 1.13 states that:

Section 377 of the Pakistan Penal Code does not explicitly refer to same-sex sexual activity but provides that “carnal intercourse against the order of nature”, is punishable by a fine or imprisonment for a period of two years to life

[25] An IRB response to information report on violence against sexual minorities, found at Tab 6.5 of the NDP, points to alarming rates of violence against members of the LGBTQ community. The violence is perpetrated by family members as well as members of civil society. Homosexuality is seen as a threat to the family stability and to its reputation as well as a threat to religious integrity.

[26] UK Home Office report also highlights the extent of violence against members of the LGBTQ community and its activists. Groups — fundamentalist groups such as the Pakistani Taliban engage in threats, assaults, murders and beheadings of members of the LGBTQ community.

[27] US Department of State report on Pakistan found at Tab 2.1 of the NDP states that:

Consensual same-sex conduct is a criminal offence. The penalty is a fine from 2 years to life imprisonment. Lesbian, gay, bi-sexual male, transgender and intersect persons rarely reveal their sexual orientation or gender identity.

[28] The DOS, D-O-S, report states that:

Violence and discrimination continues against LGBTI persons and police generally refuse to take action.

[29] Based on the objective evidence before me including the fact that same-sex relations are criminalized in Pakistan’s penal code, I find that you could not live openly as a bi-sexual man and have same-sex relationships without encountering legal sanctions or discrimination that is persecutory in nature. I find that you have established an objectively well-founded fear of persecution by reason of your sexual identity.

State Protection

[30] I find that adequate state protection would not be reasonably forthcoming in this particular case given that same-sex sexual acts are prohibited in Pakistan it would be unreasonable to expect a person identifying as bi-sexual to seek protection from the authorities. As such, I find that you have rebutted the presumption of state protection.

Internal Flight Alternative

[31] I have considered whether a viable internal flight alternative exists for you. The UK Home Office report at Tab 1.13 of the NDP states as follows:

Given that homophobic attitudes are prevalent throughout the country and state protection is generally not available, there is unlikely to be any place in Pakistan to which an LGBTI person could reasonably relocate without making fundamental changes to their behaviour.

[32] Based on the totality of the evidence before me, I find that there is a serious possibility of persecution throughout Pakistan as the IFA fails on the first prong of the IFA test. I find that there is no viable internal flight alternative for you in Pakistan.

[33] Given my finding with respect to your fear of persecution because of your sexuality, I have not considered whether you might also face a risk of persecution as an atheist.

CONCLUSION

[34] Based on the analysis above, I conclude that you are a Convention refugee and I accept your claim.

— DECISION CONCLUDED

All Countries Iran

2020 RLLR 171

Citation: 2020 RLLR 171
Tribunal: Refugee Protection Division
Date of Decision: October 23, 2020
Panel: Bjorn Einarson
Counsel for the Claimant(s): Frances Mahon
Country: Iran
RPD Number: VB9-08349
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000173-000178

REASONS FOR DECISION

INTRODUCTION

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

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

[3] The claimant identifies as a transgender man and prefers “he/him” pronouns as well as the male name “XXXX” rather than his legal first name “XXXX”. Although his identity documentation reflects his birth as a female, his preferred pronouns will be used in this decision

ALLEGATIONS

[4] The specifics of the claim are set out in the narrative of the Basis of Claim form.³

[5] The claimant alleges that he is a transgender man who has been in a seven-year relationship with a woman named XXXX XXXX who still lives in Iran.

[6] Although he is a transgender man, the claimant alleges he is perceived to be female in Iran. As such, his relationship with XXXX is perceived as a lesbian relationship and the claimant is therefore perceived by Iranian society and the state as a lesbian.

[7] The claimant alleges that he faces a forward-looking risk of harm because he is perceived to be a lesbian.

DECISION

[8] I find that the claimant is a refugee, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should he return to Iran, on account of his membership in a particular social group, specifically as a transgender man who would be perceived as a lesbian in Iran.

Identity

[9] I find that the claimant’s identity as a national of Iran is established by the documents provided, namely his passport.⁴

Credibility

[10] Based on the documents in the file, I have noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above on a balance of probabilities: that the claimant is a transgender man who would be perceived to a lesbian in Iran.

[11] After reviewing the documents, I have no reason to doubt their authenticity.

[12] Specific documentary evidence provided in Exhibit 4 – namely a) a letter of support from the claimant’ s partner, b) letters of support from other members of the LGBT community in Iran, c) correspondence between the claimant and his partner, and d) photographs of the claimant and his partner⁵ – establish, on a balance of probabilities, the credibility of the claimant’s risk profile. I find that these documents – to which I assign full weight – with the evidence adduced from the basis of claim narrative, is sufficient to establish on a balance of probabilities that the claimant is a transgender man who would be perceived as a lesbian in Iran.

Nature of the harm

[13] I have examined this claim under section 96 of the IRPA, as I conclude that the risk the claimant faces constitutes persecution based on at least one of the grounds prescribed in the Refugee Convention, specifically his membership in a particular social group, specifically as a transgender man who would be perceived as a lesbian in Iran.

Objective basis

[14] Given that there are no serious credibility issues with respect to the claimant’s central allegations, coupled with the documentary evidence set out below, I find that the claimant has established a prospective risk of being subjected to the following harm were he to return to Iran: that he would be subject to detention, imprisonment, or other judicial action for charges related to his perceived sexual orientation.

[15] The allegation of risk is corroborated by the following document in the National Documentation Package (NDP).⁶

[16] I have found that, on a balance of probabilities, the claimant would be perceived as a lesbian if he returned to Iran. As such, the objective basis of Iranian law regarding lesbian sexuality is essential to consider. Article 238 to 240 of the Iranian Penal Code are cited in NDP 6.2:

Article 238. Musaheqeh: Musaheqeh is defined as where a female person puts her sex organ on the sex organ of another person of the same sex.
Article 239. The hadd punishment for musaheqeh shall be one hundred lashes.
Article 240. Regarding the hadd punishment for musaheqeh, there is no difference between the active or passive parties or between Muslims and non-Muslims, or between a person that meets the conditions for ihsan and a person who does not, and also whether or not [the offender] has resorted to coercion.⁷

[17] On this basis, I find that there is a serious possibility that the claimant would charged under these provisions of the Iranian Penal Code, if he were to return to Iran, continue his long term relationship with XXXX, and live his life fully without recourse to repression or secrecy. Because these legal prescriptions constitute prosecution of the claimant’s exercise of his natural rights and punish that exercise with corporal punishment, I find that they constitute persecution. As such, I find there is a serious possibility of persecution should the claimant be returned to Iran. Moreover, I therefore find that the claimant has established on a balance of probabilities a subjective fear of persecution in Iran due to their membership in a particular social group, namely as a transgender man who would be perceived as a lesbian in Iran.

State Protection

[18] Whereas the agent of persecution is the state, I find that adequate state protection would not be reasonably forthcoming in this particular case.

Internal flight alternative

[19] I have considered whether a viable internal flight alternative exists for the claimant. On the evidence before me and given that the agent of persecution is the state, and the state has effective control over the entire country, I find that there is a serious possibility of persecution throughout Iran.

CONCLUSION

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

(signed) Bjorn Einarson

October 23, 2020

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

2 Instructions governing the streaming of less complex claims at the Refugee Protection Division, Dated January 29, 2019.

3 Exhibit 2.

4 Exhibit 1.

5 Exhibit 4.

⁶ Exhibit 3

7 Exhibit 3, National Documentation Package, Iran, 31 March 2020, tab 6.2: Iran. State-Sponsored Homophobia 2019. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Lucas Ramón Mendos. March 2019. p. 2.

All Countries Iran

2020 RLLR 170

Citation: 2020 RLLR 170
Tribunal: Refugee Protection Division
Date of Decision: October 29, 2020
Panel: Carol-Ann Gibbs
Counsel for the Claimant(s): (no information)
Country: Iran
RPD Number: TB9-30697
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000131-000135

REASONS FOR DECISION

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

[2] Paragraph 170(f) of IRPA² provides that the Refugee Protection Division (RPD) may allow a claim for refugee protection without a hearing, unless the Minister has notified the RPD of the Minister’s intention to intervene within the time limit set out in the Refugee Protection Division Rules.³ Further, subsection 162(2) of IRPA⁴ directs each Division to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.

[3] Having carefully considered the evidence in this case, the panel finds that it meets the criteria for file-review determination. This case has therefore been decided without a hearing, according to the Instructions governing the streaming of less complex claims at the Refugee Protection Division.⁵

ALLEGATIONS

[4] Regarding the allegations, these are noted in the claimant’s basis of claim form (BOC).⁶ The following is a summary. The claimant is a young man. He was born female but identifies as a male. He has suffered persecution in Iran due to his gender identity and cannot live openly in Iranian society. He fears harassment and harm from the people in his community in Iran and he knows that Iranian authorities will not provide adequate protection. The claimant came to Canada in XXXX 2019 and made a claim for protection in November 2019.

ANALYSIS

Identity

[5] Regarding identity, the claimant’s identity as a citizen of Iran is established by his Iranian passport.⁷ The claimant’s identity as transgender is established by his statements and photographs of himself as a child and teenager.⁸

Credibility

[6] Regarding credibility, the panel finds the claimant to be credible based on a review of the documents on file which are consistent.

[7] The claimant’s fear of returning to Iran due to his transgender identity is supported in the documentary evidence.

“There is a strong societal taboo against homosexuality. International LGBTI (lesbian, gay, bisexual, transgender and intersex) NGOs report that many young gay men face harassment and abuse from family members, religious figures, school leaders, and community leaders. Authorities have reportedly expelled individuals from university for alleged same-sex relations. While official rhetoric against homosexual individuals and practices has reduced since the Ayatollah Khomeini era, high level officials (including Ayatollah Khamenei), have continued to issue derogatory statements about homosexuality. LGBTI individuals are unlikely to obtain protection from state officials, and may face harassment, abuse or arrest should they come to the attention of security forces. As noted in Military Objectors, men whose homosexuality or transgenderism has been established (through an intrusive medical examination) are exempted from military service and given the designation ‘mentally ill’ on their military cards, which can lead to later difficulties when seeking employment. Both gay men and lesbians face considerable societal pressure to enter into a heterosexual marriage and produce children. The government censors all materials related to LGBTI issues, including blocking websites or content within sites that discusses such issues. NGOs are unable to work openly on LGBTI issues… Iran has recognised transgender individuals since 1987, when Ayatollah Khomeini issued a fatwa declaring transsexuality to be in conformity with Islam. Authorities regard transsexuality as a disorder for which medical solutions are available, and permits hormone treatment and sexual reassignment surgery (SRS). The government provides financial assistance to undergo these treatments, and requires health insurers to cover the cost of SRS. Following a referral from a psychologist or psychiatrist, the Department of Forensic Psychiatry determines whether a person qualifies for such treatment. Only after SRS has been completed and their legal documents (including identity card, birth certificate and passport) adjusted is a person legally allowed to dress according to the opposite sex and to move into the spaces reserved for this sex. Authorities do not generally permit crossdressing because men or women dressing as the opposite sex reportedly represents a disruption to the social order. However, once an individual is diagnosed as suffering from gender dysphoria and agrees to undergo SRS, local authorities may issue them a permit to allow them to appear in public dressed as the opposite sex prior to the actual surgery. Post-surgery, transgender persons are advised to maintain discretion about their past due to stigma associated with being transgender.”⁹ In this case, the claimant has not chosen to undergo reassignment surgery.

The U.S. Department of State for 2019 reports as a significant human rights problem, “harsh governmental restrictions on the rights of women and minorities; crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons; criminalization of LGBTI status or conduct.”¹⁰

[8] It is reported in the NDP that people perceived as transgender by broader society are likely to experience violence and abuse by both state and non-state actors. Transgendered individuals are often arrested for not wearing the mandatory hijab. Targeting and harassment by the police can occur even when trans individuals have secured an official letter from the government certifying their gender identity disorder diagnosis.

[9] A transgender person’s behaviour and way of life is often criminalized within Iran despite legal recognition of trans individuals’ gender identity. Members of the trans community in Iran are targeted by the state on the basis of alleged engagement in vaguely defined acts prohibited under the state’s interpretation of Sharia law. For example, pursuant to Article 638 of the Iranian penal code, which criminalizes haram, which are acts generally considered sinful or prohibited by Sharia law, authorities can arbitrarily harass, arrest, detain and prosecute anyone perceived to have committed sinful acts in public. Individuals convicted under this article can spend between 10 days and two months in prison or be subjected to 74 lashes.

State Protection

[10] The panel finds that the claimant has rebutted the presumption of state protection given that the documentary evidence that the state does not provide adequate protection and, in some cases, the state is reported to harass and abuse members of the LGBTQ community in Iran.

Internal Flight Alternative

[11] The panel finds that there is no viable internal flight alternative for the claimant. In this case the claimant fears both state and non-state actors. There does not appear to be anywhere in Iran where the claimant could live without this fear.

CONCLUSION

[12] Having considered all of the evidence, the panel finds the claimant is a Convention refugee and accepts the claim.

(signed) Carol-Ann Gibbs

October 29, 2020

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

2 Ibid., section l 70(f).

3 Refugee Protection Division Rules (SOR/2012-256).

4 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 162(2).

5 Instructions governing the streaming of less complex claims at the Refugee Protection Division, effective January 29, 2019.

6 Exhibit 2

7 Exhibit 1

8 Exhibit 4

9 Exhibit 3, item 1.8

10 Exhibit 3, item 2.1

All Countries Jordan

2020 RLLR 169

Citation: 2020 RLLR 169
Tribunal: Refugee Protection Division
Date of Decision: October 22, 2020
Panel: Gillian Frenette
Counsel for the Claimant(s): Marianne B Lithwick
Country: Jordan
RPD Number: TB9-19255
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000118-000123

DECISION

[1] MEMBER: Okay, so I’ve considered your Basis of Claim Form, your testimony and your disclosure and I’m ready to render my decision orally. These are the reasons in the claim for refugee protection made by XXXX XXXX also known as XXXX(ph) XXXX. This is for File TB9-19255. XXXX(ph) I will refer to you as the claimant when I provide these reasons.

[2] So the claimant made his claim for refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection act. I find that the claimant is a Convention refugee under Section 96 of this act.

[3] The claimant’s detailed allegations can be found in Exhibit 2, in his Basis of Claim Form. In summary the claimant alleges that he is a Palestinian and that his gender identity and expression exposes him to persecution in Jordan both from family members as well as Jordanian society. He also alleges that he is unable to live safely and openly as a transgendered man in Jordan.

[4] He was assigned female gender at birth and alleges intolerance, rejection, discrimination and harassment in Jordan on account of his gender identity.

[5] INTERPRETER: Sorry can you repeat this sentence?

[6] MEMBER: Sure, so he alleges intolerance, rejection, discrimination and harassment in Jordan on account of his gender identity, including from the father of his girlfriend XXXX XXXX(ph)

[7] INTERPRETER: Sorry I forgot her name?

[8] MEMBER: Oh, XXXX XXXX(ph) who physically assaulted the claimant and threatened him after discovering his relationship with his daughter.

[9] With respect to the claimant’s identity, I find that his oral testimony and documentary evidence establishes that he is a stateless Palestinian. I was provided with a certified true copy of his travel document issued by the Hashemite Kingdom of Jordan, the original of which was seized by C.B.S.A. I will also not that this travel document does not contain a national identification number and does not confer Jordanian citizenship.

[10] I was also provided with a copy of the claimant’ s birth certificate indicating that although he was born in Saudi Arabia, he is a Palestinian national. I therefore find on a balance of probabilities that the claimant has provided sufficient documentation to establish his personal identity as a stateless Palestinian.

[11] As a stateless Palestinian I must assess whether the claimant faces a serious possibility of persecution or a risk of harm in any country of former habitual residence and whether he is able to return to any other countries of former habitual residence.

[12] COUNSEL: (inaudible)

[13] MEMBER: Sure.

[14] COUNSEL: I just wanted to ask XXXX(ph) do you need an interpreter at this time to translate? If you do that’s fine I’m just asking if you understand the English.

[15] MEMBER: XXXX(ph) how about….

[16] CLAIMANT: I do understand but there are some words only.

[17] MEMBER: Okay so would you like the interpreter to continue to interpret these reasons? It’s fine if you do.

[18] CLAIMANT: I think I understand everything.

[19] MEMBER: Okay, so….

[20] COUNSEL: XXXX(ph) go outside it’s fine, we’ll put you on speaker you can call me.

[21] CLAIMANT: I will mute myself, okay?

[22] COUNSEL: Then you can’t hear anything? (inaudible)

[23] CLAIMANT: My stuff I can hear everything, now the sound is only like…

[24] COUNSEL: Sometimes?

[25] MEMBER: Okay, so are we proceeding with the interpreter?

[26] COUNSEL: I think if you speak slowly the claimant will understand.

[27] CLAIMANT: Yes, definitely slowly yes.

[28] MEMBER: Okay, I’ll speak slowly and madam interpreter if you just remain on standby in case we need you.

[29] INTERPRETER: Sure. Should I mute myself?

[30] MEMBER: Yes.

[31] INTERPRETER: Yes? Okay.

[32] MEMBER: Okay, so as a stateless Palestinian I must assess whether the claimant faces a serious possibility of persecution or a risk of harm in any of, in any country of former habitual residence and whether he is able to return to any other countries of former habitual residence.

[33] So the claimant moved to Jordan when he was approximately two years old and resided there continuously until he left for Canada in XXXX of 2019. As I said previously he holds a Jordanian travel document, a copy of which can be found in Exhibit 1 and he has a right of return to Jordan. For these reasons I find that Jordan is a country of former habitual residence for the claimant.

[34] With respect to the West Bank, the claimant testified that he travelled there approximately three or four times in total and stayed there for no more than a month each time and that he travelled there for the purpose of vacation or visiting family. I do not find that this establishes a significant period of de facto residence such that it would be considered a country of former habitual residence.

[35] Finally, with respect to Saudi Arabia, although the claimant was born there and lived there for approximately two years as a child, he only held temporary status there and does not have a right of return to Saudi Arabia.

[36] I find that the claimant has established a well founded fear of persecution in Jordan on the basis of his membership in a particular social group as a transgendered male and that he is unable to return to any other country of former habitual residence.

[37] With respect to credibility, the burden rests on the claimant to establish his allegations on a balance of probabilities. In this claim the determinative issue is whether the claimant has proven his identity as a transgendered man and in this respect I find that his testimony was credible.

[38] The claimant provided straight forward and consistent testimony regarding the treatment that he faced in Jordan. He described in detail incidents that lead him to flee Jordan, including physical abuse from his parents growing up when he would refuse to wear traditionally female clothing and abuse, in his Basis of Claim Form he notes abuse from his father whenever someone would refer to him as a man.

[39] He also testified credibly with respect to the harassment and intolerance that he faced from Jordanian society as well as his relationship with XXXX XXXX(ph) which when discovered by XXXX(ph) family members, resulted in a physical assault and threats by XXXX(ph) father. I found the claimant’s testimony to be sufficiently detailed and credible.

[40] The core aspects of the claimant’ s testimony are corroborated with personal documentation which can be found in Exhibit 7 through 9.

[41] The documentary evidence includes a letter of support from XXXX (ph) as well as numerous text messages between XXXX (ph) and the claimant and photographs of them together. It also includes photographs of XXXX (ph) injuries that were inflicted by her father, following the discovery of her and the claimant’s relationship in XXXX of 2018. As well as medical reports from the claimant’s family doctor in Toronto and in Jordan, detailing the claimant’s transition and the hormone treatment that he has taken to that effect since XXXX of 2019.

[42] I find these documents reliable and probative in establishing, in assisting to establish the claimant’s allegations. I therefore accept the allegations and find on a balance of probabilities that the claimant is a transgendered male and faces a serious possibility of persecution in Jordan on that basis.

[43] With respect to the objective basis for this claim, I have considered a number of different documents in the national documentation package, specifically Items 2.1, 6.1 and 7.3. I have also considered the country conditions disclosure that was provided in Exhibit 7.

[44] So Item 2.1 of the NDP is the Department of State Report for the United States for the year of 2019. That report states that societal discrimination against lesbian, gay, bisexual, transgender and intersex persons was prevalent as were honour killings.

[45] It also states that authorities in Jordan can arrest LGBTI individuals for allegedly violating public order or public decency which are crimes under the penal code and it notes that transgender individuals were especially vulnerable to acts of violence and sexual assault in Jordan.

[46] This as I said this is also corroborated by the documents contained in the claimant’s country conditions package which I believe I misspoke I think it’s Exhibit 6 not Exhibit 7. Item 2.1 also notes that activists reported that discrimination against LGBT people occurred in housing, employment, education and access to public services.

[47] Some LGBT individuals reported reluctance to engage the legal system due to fear that their sexual orientation or gender identity would provoke hostile reactions from the police, disadvantaged them in court or be used to shame them or their families.

[48] I’ve also considered Item 6.1 which repeats much of what I noted in Item 2.1. It further indicates that discrimination is quite prevalent and that there are no anti discrimination laws that specifically protect LGBT individuals in Jordan.

[49] It also notes that Jordanian society is deeply conservative and describes why political reform has not been happening as legal reforms affecting LGBT people would be politically costly and (inaudible) defend LGBT rights would cause parliamentarians to lose their audience and supporters.

[50] There’s another Item in the NDP, Item 7.3 which states that conservative, cultural and religious norms restrict Jordanian LGBTI persons from being open. It also notes that authorities may use laws forbidding adultery or breaches of modesty to be used against LGBTI travellers.

[51] So in light of the evidence that I’ve just cited I find that the claimant would face a serious possibility of persecution in Jordan due to his gender identity and I also find that adequate state protection would not be available to the claimant as this attitude is generally consistent throughout the country.

[52] With respect to an IFA, I find that there is no viable internal flight alternative for the claimant as Jordanian society is one of the agents of persecution and there is no evidence that any area of Jordan is particularly better than any other area of Jordan for transgendered individuals.

[53] So I have therefore determined that the claimant has a well founded fear of persecution on the basis of his membership in a particular social group and I accept his claim.

[54] I want to thank you for your testimony today XXXX(ph) I wish you all the best.

[55] CLAIMANT: Thank you very much.

[56] COUNSEL: Thank you so much it was a real pleasure appearing in front of you, thank you.

[57] MEMBER: Thank you. Thank you madam interpreter as well for your assistance.

[58] INTERPRETER: Thank you, thank you very much.

[59] MEMBER: And for connecting and reconnecting when we had issues. Alright so I hope everyone has a great day take care. I believe a transcript of this decision will be sent to you in the mail both counsel and XXXX (ph) so you’ll have a copy of that. Okay, so counsel I’m sure counsel can make you aware of next steps.

[60] COUNSEL: Thank you.

[61] MEMBER: Alright take care. Bye bye.

———- REASONS CONCLUDED ———-

All Countries Saudi Arabia

2020 RLLR 168

Citation: 2020 RLLR 168
Tribunal: Refugee Protection Division
Date of Decision: December 3, 2020
Panel: Francis Chaput
Counsel for the Claimant(s): Jonathan Richard J Lage
Country: Saudi Arabia
RPD Number: MC0-01470
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000073-000078

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX, a.k.a XXXX XXXX XXXX XXXX, a.k.a. 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 (the 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] Also, while analyzing and rendering this decision, the Panel applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

DECISION

[4] The Panel finds that the claimant is a refugee, pursuant to section 96 of the Act, as there exists a serious possibility of persecution, should he return to Saudi Arabia, on account of his membership in a particular social group, specifically based on his sexual orientation and gender identity as a transgender man.

ALLEGATIONS

[5] The claimant’s allegations are found in his Basis of claim form (BOC), which was submitted on XXXX XXXX XXXX 2020. In summary, the claimant alleges the following.

[6] Born as a female, the claimant self-identifies as male.

[7] The claimant is a citizen of the Kingdom of Saudi Arabia (KSA).

[8] Since a very young age, the claimant acted like a boy and preferred playing with boys, rather than girls. When he was six years old, the claimant did not like his own hair and tried to cut it on his own. When he started school, the claimant was aware that he was different from the other girls and that a girl’s school was not his place.

[9] At the age of nine, the claimant was forced to wear the hijab and to cover his body. He was also prohibited from his family to play or even to associate with boys.

[10] Between the age of ten and sixteen, the claimant’s life became very difficult and confusing and he went into XXXX.

[11] At the age of seventeen, the claimant cut his hair. When his family discovered what he had done, his parents isolated him in his room for one year and his brother tried to kill him.

[12] It is only in his 20s that the claimant accepted his sexual orientation. He had his first relationship with a woman while studying at university. His heart was broken when his girlfriend’s family forced her to marry a man she barely knew.

[13] The claimant then began to believe that he was wrong and that his family was right. The claimant then lost himself in religion in an attempt to end his sadness. Meanwhile, the claimant’s father tried to get the claimant married. When the claimant refused, he was punished by his father and his brother. The claimant was then once more isolated, hospitalized, and forced to take estrogen, by his family in order for him to be “cured”.

[14] The claimant later became a XXXX XXXX and XXXX XXXX XXXX and became well known in the Arab world.

[15] The claimant also consulted a XXXX who told him that he had transgender issues and that he should research “LGBTQ” to help himself to come to terms with his sexual identity, which he did.

[16] The claimant then abandoned Islam because it condoned the punishment of LGBTQ persons. In 2019, the claimant’s brother attacked him for questioning Islam and threatened to kill him. The claimant’s father then confined the claimant to his room for three months. It is during these three months that the claimant came to the conclusion that he had no other choice than to leave the country.

[17] The claimant lied in order to gain permission from his family to leave the country. His father gave him permission to join his niece who was studying in the United States. At the same time, the claimant secretly applied for a Canadian visa which was issued on XXXX XXXX XXXX 2019.

[18] The claimant left the KSA on XXXX XXXX XXXX 2019, and came directly to Canada. He finally submitted his asylum claim on XXXX XXXX XXXX 2020.

[19] The claimant cannot return to the KSA where he fears to be targeted, persecuted and killed because of his gender identity and sexual orientation as a transgender man.

ANALYSIS

Identity

[20] The Panel finds that the identity of the claimant as a national of Saudi Arabia is established by the documents provided: namely his passport and birth certificate.¹

Credibility

[21] Based on the documents in the file, the Panel has noted no serious credibility issues. In particular, the evidence establishes the allegations of the claimant as a transgender man as set out above. In fact, the passport and birth certificate of the claimant mention the claimant’s gender to be “female”. The claimant also submitted his temporary driver’s licence which shows the claimant’s name and his sex as being “M/H” which stands for “man/homme”.

[22] The claimant further submitted a letter from the Transgender Health Clinic where it is mentioned that the claimant, XXXX XXXX XXXX XXXX XXXX, is undergoing hormone replacement therapy since XXXX XXXX XXXX 2020, to affirm his gender as a man.

[23] The claimant also submitted a letter from the XXXX XXXX XXXX in Ottawa, where the letter was sent to the claimant under his name XXXX XXXX. The claimant also submitted another letter from XXXX XXXX and pictures of letters he received at his attention under the name of XXXXXXXX.

[24] After reviewing the documents, the Panel has no reason to doubt their authenticity. In the light of this documentary evidence, the Panel finds that the claimant was able to establish, on the balance of probabilities, that he is a transgender man.

Objective basis

[25] According to the documents found in the National documentation package on the KSA – March 21, 2020, version (CND), LGBT rights are not recognized in the KSA and both male and female same-sex sexual activities are illegal. Also, the KSA operates an uncodified criminal code based on Sharia law. Under this framework, sex outside marriage is also illegal, same-sex marriage is not permitted, and same-sex intimacy is criminalized. In the KSA, homosexuality and being transgender is widely seen as immoral and indecent activities. The law also punishes acts of homosexuality and cross-dressing with severe punishment such as torture, prison up to a lifetime, and capital punishment. Members of the LGBTQ community have also been ostracized and, in some cases, been exposed by their own family members.

[26] This situation faced by homosexuals and transgender persons in the KSA is corroborated by news articles and reports submitted by the claimants and also by the documents in the National Documentation Package under tabs 2.1, 2.4, 2.9, 6.1, 6.2 and 6.3.

[27] Given that there are no serious credibility issues with respect to the allegations of the claimant, coupled with the documentary evidence cited previously, the Panel finds that the claimant has established a prospective risk of being subjected to the following harm(s): arrest, detention, torture, and being killed.

Nature of the harm

[28] The Panel has examined this claim under section 96 of the Act, as it concludes that the risks the claimant faces constitute persecution based on at least one of the grounds prescribed in the Refugee Convention, specifically his membership in a particular social group, specifically based on his sexual orientation and gender identity as a transgender man.

State Protection

[29] The Panel finds that there is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection. Since homosexuality and being a transgender person is criminalized in the KSA, the Panel finds that it would be clearly unreasonable for the claimant to ask for protection from the KSA authorities. Thus, the Panel concludes that the claimant has rebutted the presumption of state protection.

Internal flight alternative

[30] Finally, the Panel has examined whether a viable internal flight alternative exists for the claimant. Based on the evidence on file as previously cited, I find that the claimant faces a serious possibility of persecution throughout the KSA.

Conclusion

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

(signed) Francis Chaput

December 3, 2020

¹Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada.

All Countries Saudi Arabia

2020 RLLR 167

Citation: 2020 RLLR 167
Tribunal: Refugee Protection Division
Date of Decision: February 21, 2020
Panel: François Ramsay
Counsel for the Claimant(s): Jessica Lipes
Country: Saudi Arabia
RPD Number: MB9-23336
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000064-000068

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX, (also known as 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.

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

ALLEGATIONS

[4] You allege the following:

[5] From a very young age, it is very clear for you that you want to be a woman.

[6] Attracted to men, then raped and subsequently blackmailed by a cousin because of that attraction, you realize at the age of 18 that you are not a gay man but rather a transgendered individual. From then onwards, you make the decision to hide your true gender identity while planning your departure from Saudi Arabia.

[7] It is in this context that you decide to pursue your university studies in the United States (USA). You reach the USA on XXXX XXXX 2018.

[8] In that country, while you do make your gender identity public, you do remain cautious as you fear that you might be denounced to Saudi Embassy officials or come across someone who knows you. You also become the target of harassment as well as rape and death threats at the hands of a group of Arab men who attend the same classes as you in university. As this situation becomes increasingly difficult, it not only prevents you from completing your last semester, but causes you to become suicidal and leads you to seek refuge somewhere else.

[9] It is in this context that you decide to come to Canada to seek asylum. You are presently pursuing the hormone treatment you started in the USA and are considering converting to the Christian faith.

DETERMINATION

[10] I find that you are a Convention refugee as you have established a serious possibility of persecution should you return to Saudi Arabia based on the grounds in section 96.

ANALYSIS

Identity

[11] I find that your identity as a national of Saudi Arabia is established by the documents provided, namely your passport.

Nexus

[12] I find that you have established a nexus to section 96 by reason of your membership in a particular social group, namely Saudi transgendered individuals.

Credibility

[13] Based on the documents in the file, I have noted no serious credibility issues.

[14] In particular, the evidence establishes the allegations as set out above. Exhibits E-3 to E- 6 corroborate your allegations with respect to the treatment you faced at the hands of your cousin in Saudi Arabia, and the transition process you have initiated through, inter alia, hormonal therapy. Exhibits E-1 and E-2 corroborate your allegations with respect to your status in the USA. After reviewing the documents, I have no reasons to doubt neither their authenticity, nor the truthfulness of their content.

[15] With respect to your failure to claim asylum in the USA, I find the explanations you have provided to justify your actions to be reasonable, in light of your specific circumstances. Therefore, I find that your actions neither display a lack of subjective fear, nor do they undermine your general credibility.

Objective basis of future risk

[16] Based on the credibility of your allegations, and the documentary evidence set out below, I find that as a transgendered individual, you have established a future risk that you will be subjected to the following harm should you return to Saudi Arabia: official and societal discrimination, harassment, physical violence, possibly of a sexual nature, arbitrary arrest and detention.

[17] The fact that you face this risk is corroborated by the documents found at tabs 2.1, 6.1 and 6.3 of the National Documentation Package for Saudi Arabia, in its March 29, 2019 Version.

Nature of the harm

[18] This harm clearly amounts to persecution.

State protection

[19] Considering that according to the above-cited documentary sources, authorities do not make a distinction between transgendered and intersexed individuals and homosexuals; considering the documented treatment reserved to homosexuals by police authorities, I find that there is clear and convincing evidence before me that the state is unable or unwilling to provide you with adequate protection.

Internal flight alternative

[20] I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Saudi Arabia.

CONCLUSION

[21] Based on the analysis above, I conclude that you are a Convention refugee. Accordingly, I accept your claim.

(signed) François Ramsay

February 21, 2020

All Countries Mexico

2020 RLLR 166

Citation: 2020 RLLR 166
Tribunal: Refugee Protection Division
Date of Decision: October 26, 2020
Panel: François Savoie
Counsel for the Claimant(s): Émile Le-Huy
Country: Mexico
RPD Number: MB9-13609
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000048-000054

REASONS FOR DECISION

INTRODUCTION

[1] XXXX XXXX XXXX XXXX, a citizen of Mexico, claims refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2] The claimant is a trans woman, trans rights activist and former sex worker from Mexico who fears the police and her former procurer.

[3] The claimant was illegally detained by the police on multiple occasions. Most recently, she was detained in XXXX 2016, ahead of a press conference organized by a trans rights organization she helped found in Monterrey.

[4] The claimant was also kidnapped and severely beaten by the police in Puebla in XXXX 2018.

[5] The claimant fears further mistreatment from the police were she to return to Mexico.

[6] She also fears retaliation from her former procurer for having publicly denounced her practice of charging a fee to assist trans women in changing their legal names and legal gender in Mexico City. She also fears retaliation from her for having denounced her mistreatment to the police.

[7] The claimant left Mexico on XXXX XXXX XXXX 2018 and arrived in Montreal the next day. She filed for refugee protection on XXXX XXXX XXXX 2019.

DECISION

[8] The Tribunal finds that the claimant is a “Convention Refugee” pursuant to section 96 of the IRPA.

ANALYSIS

[9] In the present case, the Tribunal considered the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guidelines).

Identity

[10] The claimant’s personal identity and her national identity as a citizen of Mexico are established, on a balance of probabilities, by a copy of her passport filed as evidence.

Credibility

[11] The Tribunal finds the claimant credible on the material aspects of her claim; namely that she is a trans woman from Mexico.

[12] The claimant answered all questions put to her fully, spontaneously and without evasion.

[13] The claimant was able to explain with great details the difference, stigma, shame, and harm she felt growing up as a transgender woman.

[14] The claimant also explained how she began taking hormones at a young age, and later started taking testosterone blockers. She provided details about how she procured these medications. A medical report filed as evidence also showed that she had breast implants.¹

[15] The claimant explained at large the types of situations she frequently faced in Mexico as a transgender woman. Some of the specific examples she gave could even be largely corroborated by the objective documentary evidence. As an example, the objective documentary evidence states that “[t]ransgender women [are] frequently accused of being involved in sex work, even when they [are] simply running errands like going to buy milk.”² This is in line with the claimant’s testimony that she was once arrested and detained by the police while simply going to buy bread and milk at a depanneur.

[16] In addition to her testimony, the Tribunal carefully reviewed and considered documents filed by the claimant in support of her allegations. The Tribunal asked the claimant to explain what the process of changing her legal gender entailed. After having heard the claimant on the matter, the Tribunal asked the claimant how the process was reflected in the documentary evidence she provided. The claimant first pointed to her national elector’s card,³ which was issued prior to the name and gender change. This card, issued in 2013, showed her former male name and showed her gender as male. She then pointed to the birth certificate which was issued following her legal name and gender change, issued in 2015.⁴ This document showed her new female name and showed her gender as female.

[17] Other evidence also allowed the Tribunal to understand the claimant’s activism in the trans sphere. Not only did the claimant seek justice for herself, she also sought to help members of her community by lobbying governments.

Incompatible Behaviour – Travel ta Spain and Return to Mexico

[18] According to her IMM-5669 form, the claimant travelled to Spain in 2017 to study XXXX XXXX. While in Spain, the claimant did not file for refugee protection and subsequently returned to Mexico.

[19] The Tribunal asked the claimant why she had not filed for refugee protection in Spain. The claimant testified that she did not feel that things were so bad in Mexico at that time. She also testified that she had started her work as an activist and returned to Mexico to help her friends with their activism project.

[20] The Tribunal notes that the claimant’s travel to Spain happened prior to the last set of events that lead the claimant to leave Mexico for Canada. The Tribunal is also mindful that, according to the Chairperson’s Guidelines 9, it may be plausible that a trans woman like the claimant would engage “in activity that might put [her] at risk in [her] country of reference.”⁵ Considering the above and the claimant’s profile as an activist, the Tribunal makes no implausibility findings in relation to her failure to file for refugee protection in Spain and in relation to her return to Mexico.

Delay in Claiming Refugee Protection in Canada

[21] The claimant spent just shy of six months in Canada prior to filing for refugee protection.

[22] At the hearing, the claimant testified that she had been asked by the Canada Border Services Agency (CBSA) whether she wanted to claim asylum in Canada on arrival in Montreal and that she had answered no to that question.

[23] Considering the claimant’s personal situation as a trans woman who has been through a lot of violence, the Tribunal does not make any negative inference related to her delay in claiming. The Tribunal subscribes to the observations made by the claimant’s counsel according to which the claimant may not have been necessarily familiar with the workings of refugee claims in Canada and that it is quite possible that she may have had a psychological difficulty in taking action.

Nexus

[24] For the claim to succeed under section 96 of the IRPA, the persecution must be linked to a Convention ground, in other words, there must be a nexus.

[25] The Tribunal finds that the claimant has established a nexus to the Convention, as the harm feared is on account of her membership in a particular social group (trans women).

[26] For the reasons set out under the State Protection and Internal Flight Alternative sections below, the Tribunal also finds that, on a balance of probabilities, the claimant has a serious possibility of facing serious harm should she return to Mexico. The objective documentary evidence tendered into evidence by the board supports this finding.

State Protection

[27] Canada’s responsibility to provide international protection to the claimant only becomes engaged when national or state protection is unavailable to the claimant. The claimant has the burden of rebutting the presumption of state protection. The Tribunal must now determine whether the claimant has presented clear and convincing evidence to rebut the presumption of state protection.

[28] According to the objective documentary evidence, transgender women often do not report hate crimes or police abuse because the authorities rarely investigate these crimes.⁶ Crimes committed towards trans women are frequently minimized and mischaracterized by authorities.⁷

[29] The objective documentary evidence also reports that police officers subject transgender women to arrest, extortion, physical abuse, arbitrary detention, torture, and other human rights violations that are often unpunished.⁸

[30] While the Mexican government has enacted laws aimed at protecting sexual minorities, such laws only provide explicit protections based on sexual orientation and not based on gender identity.⁹ The fact that the claimant was able to have her name and gender changed on her birth certificate does show that the government is making steps in the right direction, however, legal recognition does not necessarily translate into adequate protection. According to the objective documentary evidence, “federal antidiscrimination laws do not protect transgender communities from persecution because the Mexican government is unable to enforce them, especially because the police themselves are often the perpetrators of violence against transgender people.”¹⁰ Moreover, it is far from clear whether the enactment of antidiscrimination laws “has actually led to an improvement in the treatment of LGBT people generally or transgender women in particular.”¹¹

[31] Having considered the claimant’s testimony and the objective documentary evidence regarding the availability of state protection for trans women in Mexico, the Tribunal is of the view that evidence of Mexico’ s inability to protect trans women is clear and convincing. The Tribunal therefore finds that, on a balance of probabilities, the state protection afforded to trans women in Mexico is inadequate and that the claimant has rebutted the presumption that state protection is available in her country.

Internal Flight Alternative (IFA)

[32] According to the objective documentary evidence, Mexico has the second-highest index of crimes motivated by transphobia in Latin America after Brazil.¹² Geographically, transphobic murders occur throughout the country including in areas with more progressive laws such as Mexico City.¹³

[33] Nothing in the evidence suggests that the claimant could be safe outside of her home area. The claimant testified that she moved across the country on several occasions, yet always ended up being badly treated by the police everywhere she went.

[34] The Tribunal finds that there is, on a balance of probabilities, a serious probability of the claimant being persecuted throughout Mexico. There are no internal flight alternatives available to the claimant.

CONCLUSION

[35] Having considered all the evidence, the Tribunal determines that there’s a serious possibility that the claimant would be persecuted in her country.

[36] The Tribunal concludes that the claimant is a Convention refugee.

[37] The claim of XXXX XXXX XXXX XXXX is accepted.

(signed) François Savoie

October 26, 2020

¹ Document 4 – Exhibit D-6.

² Document 3 – National Documentation Package (NDP), Mexico, 30 September 2020, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, page 13.

³ Document 4 – Exhibit D-10.

⁴ Document 5 – Birth Certificate issued on XXXX XXXX, 2015 (Submitted during the hearing).

⁵ Guidelines 9 – 7.5.1 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 Supra, note 2, page 12.

⁷ Idem.

⁸ Supra, note 2, page 18.

⁹ Ibid, page 11.

¹⁰ Idem.

¹¹ Ibid, page 10.

¹² Ibid, page 15.

¹³ Idem.

All Countries Uganda

2021 RLLR 46

Citation: 2021 RLLR 46
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2021
Panel: Louis Gentile
Counsel for the Claimant(s): El-Farouk Khaki
Country: Uganda
RPD Number: TB9-30981
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000136-000139

DECISION

[1] MEMBER: This is the decision for the following claimant, XXXX XXXX XXXX, file number TB9- 30981. In reaching this decision, I have followed Chairperson’s Guideline 9, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, and Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution.

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

[3] I would like to add that when written decisions are issued, they may be edited for spelling, syntax and grammar. Additional country documentation may also be added.

[4] You are claiming to be a citizen of Uganda and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

DETERMINATION

[5] I find that you are a Convention refugee because you face a serious possibility of persecution for the following reasons.

ALLEGATIONS

[6] You allege the following.

[7] You are a citizen of Uganda. You were raised as a Christian and became a XXXX XXXX XXXX. You supported LGBT XXXX at two XXXX where you worked in Uganda. As a consequence, you were accused of being a lesbian and you were abducted, severely assaulted and gang raped by three men on the orders of the father of two of your XXXX, who was a Major in the Ugandan army.

[8] You left your spouse and children behind and hid until you fled to Canada. You allege that as a suspected lesbian and as a supporter of LGBT rights, if you return to Uganda you will face persecution from the state, including members of the armed forces, and from members of the community.

[9] You allege that there is no state protection for you, nor any internal flight alternative.

IDENTITY

[10] Your personal identity as a citizen of Uganda has been established by your testimony and the supporting documents filed in the exhibits. These include a certified copy of a Ugandan passport with Canadian TRV and a copy of your Ugandan birth certificate.

[11] I therefore find, on a balance of probabilities, that identity and country of nationality have been established.

NEXUS TO SECTIONS 96 OR 97

[12] I find that there is a link between what you fear and one of the five Convention grounds, specifically, your membership of a particular social group as an imputed sexual minority and as a defender of LGBT rights. Therefore, this claim has been assessed under section 96.

CREDIBILITY

[13] In terms of your general credibility, I have found you to be a credible witness and I therefore accept on a balance of probabilities what you have alleged in your oral testimony and in your Basis of Claim form. In support of your claim, you provided documents confirming that you were a XXXX at the XXXX you described, that there was a controversy surrounding allegations of homosexuality at one of the XXXX that reached the media, and that you were the victim of a sexual assault in 2018.

[14] You also provided statutory declarations and letters of support from numerous friends and former colleagues familiar with your circumstances and the accusations against you because of your imputed sexual orientation as a lesbian and your support for LGBT students. These include a letter from MJ, an administrator at XXXX XXXX XXXX, who witnessed your arrest by Major B., statutory declarations from the dental surgeon, Dr. A.S., who treated some of your injuries in 2018, and from Dr. M.H.K., who treated your internal and bodily injuries.

[15] Your testimony was straightforward, unrehearsed, responsive to questioning and was in keeping with your Basis of Claim form and there were no significant inconsistencies or omissions.

[16] Your description of your experiences defending the rights of LGBT XXXXat two XXXX in Uganda was detailed, convincing and unrehearsed, as was your testimony about the brutal assault perpetrated against you by Major B and his men. You also described in detail the pain of having to leave your husband and children behind in Uganda to seek safety in Canada.

[17] I therefore believe what you have alleged in support of your claim and I find the following to be credible.

[18] That on a balance of probabilities, you are a XXXX from Uganda who defended the rights of LGBT XXXX and that many people believe that you are a lesbian, although you are not. You were brutally assaulted by members of the military as a consequence of your imputed sexual orientation and your defence of LGBT students.

[19] You have credibly established your subjective fear of persecution, including violence, from members of the community and imprisonment from the state.

PERSECUTION RISK

[20] The objective documentation supports your allegations that individuals in your circumstance face persecution. Ugandan law criminalizes sexual acts between mutually consenting people of the same sex, NDP item 6.1 at page 22. Senior government Ministers have engaged in openly-hostile rhetoric against the practice of and legalization of same-sex behaviour, NDP item 6.2, page 1.

[21] Ugandan police are often seen as the principal violators of the rights of LGBT citizens, item 6.2 at page 21. Homophobic views are widespread in society. LGBT persons are not only not accepted, they’re often believed to be or accused of being an intrusion of western values into Ugandan society, NDP item 6.4 at paragraph 2.4.14.

[22] Your counsel also provided additional evidence in Exhibit 5 confirming that the persecution of LGBT citizens in Uganda has continued and, in some cases, intensified during the COVID pandemic. Therefore, I find that you have a well-founded fear of persecution.

STATE PROTECTION

[23] I find that adequate state protection would not be available to you were you to seek it in Uganda. The objective documentary evidence indicates that homosexuality is criminalized throughout Uganda and authorities often do not provide adequate protection or access to justice to victims of crime with diverse (inaudible) or imputed minority sexual orientation and the police themselves are often seen as the principal violators of the rights of LGBT citizens.

[24] Furthermore, in your case, an agent of the state from the armed forces has been the principal agent of persecution. In light of the above objective country documentation and the evidence presented, I find that the claimant has rebutted the presumption of state protection clearly and convincingly.

[25] Based on your personal circumstances as well as the objective country documentation, I find that adequate state protection would not be available to you in Uganda.

[26] On internal flight alternative, I have also considered whether a viable internal flight alternative exists for you. The country documentation indicates that the situation for individuals in circumstances such as yours is the same throughout the country and that you would face a serious possibility of persecution or risk to life anywhere in Uganda.

[27] Furthermore, I observe that members of the armed forces have subjected you to persecution and, as such, I find there is no viable internal flight alternative for you in Uganda.

[28] In conclusion, based on the totality of the evidence, I find the claimant to be a Convention refugee, as she faces a serious possibility of persecution because of her imputed sexual orientation as a lesbian and her active support for LGBT rights. Your claim is therefore accepted.

———- REASONS CONCLUDED ———-