2021 RLLR 18

2021 RLLR 18 Citation: 2021 RLLR 18 Tribunal: Refugee Protection Division Date of Decision: June 8, 2021 Panel: David Jones Counsel for the Claimant(s): Nicholas Woodward Country: Bahamas RPD Number: VC0-03417 Associated RPD Number(s): ATIP Number: A-2022-00665 ATIP Pages: 000074-000077 DECISION [1] On June 8, 2021 the Refugee Protection Division (RPD) heard the claim of XXXX XXXX XXXX aka XXXX XXXX, who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral POSITIVE decision and reasons for decision. This is the written version of the oral decision and reasons that have been edited for clarity, spelling, grammar and syntax, where appropriate. At the request of counsel for the claimant and with the direction of the presiding member, paragraph 1 of the decision was amended to correct an error in the spelling of the claimant’s name. The error in the spelling of XXXX has been corrected with thestrikethrough function and has been underlined to note the amendment of the transcript and replaced with the correct spelling of XXXX [2] MEMBER: This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada in the claim of XXXX XXXX XXXX, originally filed under the name XXXX XXXX XXXX (ph) who is a citizen of the Bahamas seeking refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. I also reviewed and applied the Chairperson’s Guideline on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. ALLEGATIONS [3] The claimant fears persecution if she were to return to the Bahamas as a transgender person. Details of the claimant’s allegations can be found in the narrative attached to her Basis of Claim form and amendment to her narrative found at Exhibit 6. The following is a summary of allegations and testimony. [4] The claimant knew from a small child that her gender identity was not accurate, and she always saw herself as a girl. In 2016, the claimant came out to her family. I’m not going to detail all the incidents of abuse and discrimination described in her narrative, but I will note that it includes physical abuse from her father, receiving death threats after being in a documentary called the ‘The Underneath Transgenders in the Bahamas,’ numerous incidents of abuse at a workplace and being threatened with a knife while on a bus. [5] On XXXX XXXX 2019, a week after being threatened on the bus, the claimant applied for an ETA to come to Canada. The claimant did not have money to travel until she received assistance from a friend. On XXXX XXXX 2019, the claimant flew to Toronto. In June 2019 the claimant applied for refuge protection. DETERMINATION [6] I find that the claimant is a Convention refugee. ANALYSIS Identity [7] The claimant’s identity as a citizen of the Bahamas has been established on a balance of probabilities by her Bahamian passport located at Exhibit 1. [8] The claimant was born in the Bahamas to Haitian parents. When the claimant was 18, she applied for Bahamian citizenship and in the process, she had to renounce her Haitian citizenship. A copy of her renunciation of Haitian nationality dated XXXX XXXX 2018, can be found at Exhibit 5. As such I find on a balance of probabilities that the claimant is a citizen of the Bahamas and no other country nor does she have status substantially similar to citizenship in any other country. Nexus [9] The allegations establish a Nexus to a Convention ground for the claimant based on her particular social group, namely as a transgendered person. Credibility [10] I find on a balance of probabilities that the claimant is a transgender person. In making that finding, I’m relying on the principle that a claimant who affirms, to tell the truth, creates a presumption of truthfulness unless there are reasons to doubt their truthfulness. In this regard, the claimant testified in a consistent and straightforward manner that was consistent with her Basis of Claim form narrative and supporting documents. The claimant was able to speak about her experience with the difference between Canada and the Bahamas, her experiences with transphobia including violence in the work, at school, at home, and out in the public. The consequences of living openly in the Bahamas, the lack of legal protection against discrimination, the transphobic attitudes of the police, and the claimant answered specific questions when asked. There are no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence. I find that the claimant was a credible witness. [11] The claimant also provided documents to support her claim. For example, Exhibit 5 contains eight (8) letters in support of the claimant including from the claimant’s doctor in the Bahamas as well as friends and colleagues both in the Bahamas and in Canada. Exhibit 5 also contains (inaudible) news articles of the claimant participating in a pride event, Ontario documents related to her name change and change of gender designation, and other photographs of the claimant. I have no reason to doubt the genuineness of these documents as it relates to the claimants’ gender identity and expression which is what puts her at risk. I give great weight to these documents to support the claimant’s allegations and overall claim. As such I find that the claimant has established on a balance of probabilities the facts alleged in the claim including a subjective fear of return to the Bahamas. Objective Basis [12] The objective evidence supports the claimant’s fears of returning to the Bahamas. As background, the US Department of State Report for the Bahamas found at Item 2.1 in the National Documentation Package as found at Exhibit 3 indicates that the law does not provide anti-discrimination protections to LGBTI individuals on the basis of their sexual orientation, gender identity, gender expression, or characteristics and that LGBTI individuals face a social stigma and discrimination and were not adequately protected by law enforcement authorities. A response to information request found at Item 6.1 quotes a source that describes the Bahamas as a place where “hypermasculinity is valued and black men especially are expected to perform their masculinity in compliance with the hegemonic norm. Openly gay men, feminine 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.” [13] That RIR cites other sources to indicate that the LGBTQ people feel being open about their gender identity or sexual orientation in the Bahamas due to fear of ostracization and physical violence. The RIR also indicates that LGBTQ people have been subject to violence including killings and that a lot of that violence goes unreported. Finally, the RIR further indicates that the police do not have any specific anti­LGBT policies. Individual officers often deride ridicule and abuse to LGBTI people who attempt to report violence against themselves and community members. The claimant also provided 14 news articles and reports found at Exhibit 5 to support her claim. These include articles about the Canadian government warning LGBTQ people about traveling to the Bahamas given the anti-LGBTQ sentiments in the country and the risk of violence. Other news articles describe specific incidents of violence including murder and attempted murder charging LGBTQ people in the Bahamas. Based on the totality of the evidence, I find that the claimant has established a well-founded fear as well as a serious forward-facing risk of persecution if she were to return to the Bahamas. State Protection [14] With respect to state protection, the state is presumed capable of protecting its citizens and the claimant must establish on a balance of probabilities through clear and convincing evidence that the country’ s protection is inadequate. Given the country conditions noted above including the indifference of the authorities to crimes against LGBTIQ persons, I find that there is adequate state protection available to the claimant. The claimant’s testimony and narrative reflect the country’s conditions and its regard as the claimant has successfully attempted to obtain protection from the police and she described in her testimony that there is no one that she can seek protection from and that she has never been protected in the Bahamas. I find that the claimant has rebutted the presumption of state protection with clear and convincing evidence. Internal Flight Alternative [15] Give the country conditions outlined and above and the claimant’s testimony regarding the conditions being the same throughout the Bahamas and the small size of the country. I find that the claimant would face a serious possibility of persecution throughout the country. Currently, I find there’s no internal flight alternative available to the claimant. CONCLUSION [16] For the foregoing reasons, I determine the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act and the Board, therefore, accepts the claim. ———- REASONS CONCLUDED ———-