2021 RLLR 9

2021 RLLR 9 Citation: 2021 RLLR 9 Tribunal: Refugee Protection Division Date of Decision: December 9, 2021 Panel: Sandeep Chauhan Counsel for the Claimant(s): Marianna Jasper Country: Turkey RPD Number: VC1-05783 Associated RPD Number(s): ATIP Number: A-2022-00665 ATIP Pages: 000019-000026 REASONS FOR DECISION INTRODUCTION [1] These are the reasons for the decision in the claim of XXXX XXXX XXXX (the “claimant”), who is a citizen of Turkey, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i [2] In rendering my reasons, I have considered the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. ALLEGATIONS [3] The following is a brief synopsis of the allegations put forth by the claimant in her Basis of Claim (BOC) form.ii She fears persecution at the hands of society and authorities in Turkey due to her gender identity. [4] The claimant is a XXXX-year-old woman, who was born a male. Since early childhood, she would dress up and behave like girls and was bullied by other boys in school due to this. Tired of harassment, the claimant went to Germany in 2013, where she lived with her uncles and explored surgeries for transformation of her gender from male to female. In order to ease off the pressure of getting married to a female of her family’s choosing, the claimant married her female friend in Germany. After the German authorities determined that the claimant’s marriage with her friend was fake (of convenience), she was forced to return to Turkey as she could no longer stay in Germany. Her marriage to her friend was dissolved by the Turkish authorities after the claimant completed a series of gender reassignment surgeries in 2014 and got herself registered as a female. The claimant participated in rallies for the rights of LGBTQ community in Turkey and was detained by the authorities on two occasions in 2015 and 2016. [5] She travelled to Sweden and claimed refugee protection, which was denied by Swedish authorities as they ruled that she would be safe living in Turkey. The claimant returned to Turkey in 2017 and continued to live in Istanbul. She started getting threats from her extended family, who told her parents that she is bringing shame and dishonour to the family, and that she has to exit Turkey. Her uncle threatened to throw acid on her and make Turkey an unlivable place for the claimant. Fearing for her life, the claimant travelled to the United States (US) on XXXX XXXX XXXX 2019 and crossed over to Canada, where she filed for refugee protection. DETERMINATION [6] I find that the claimant is a Convention refugee as she has established a serious possibility of persecution on account of her membership in a particular social group for the following reasons. ANALYSIS Identity [7] I find that the claimant’s identity as a national of Turkey is established, on a balance of probabilities, based on a certified copy of her Turkish passport on file.iii Credibility [8] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness. (Maldonado [1980] 2.F.C. 302 (C.A.)) [9] The claimant testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me which have not been satisfactorily explained. Apart from her oral testimony, the claimant has provided corroborating documentary evidenceiv to support her claim. I have no reason to doubt the genuineness of these documents and accept them as genuine. Amongst others, the documents contain proof of claimant’s marriage in Germany with her friend and dissolution of the same by the Turkish authorities, proof of her gender reassignment surgery through an order of the courts in Turkey, threat note from the claimant’s uncle in Turkey, and support letter from claimant’s mother. [10] Based on the claimant’s straightforward testimony and the corroborating documentary evidence, I find her to be a credible witness and accept her allegations to be true on a balance of probabilities. In particular, on a balance of probabilities, I accept that the claimant was borna male and underwent gender reassignment surgery to a female, and that she has a subjective fear of returning to Turkey as alleged. Nexus [11] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion. The persecution that the claimant faces in this case is due to her gender identity after the gender reassignment surgery she went through from male to female. I find that she has established nexus to a Convention ground – membership in a particular social group; namely a claimant fearing persecution due to her decision to convert from male to female. As such, her claim is being assessed under section 96 of IRPA and not under section 97. Well-Founded Fear of Persecution and Risk of Harm [12] To establish her status as a Convention refugee, the claimant had to show that there was a serious possibility that she would be persecuted if removed to Turkey. [13] I find that the objective evidence supports her subjective fears and establishes a serious possibility of persecution for the claimant if she is forced to return to her country. My reasons are as follows. [14] The US State Department 2016 Human Rights Practices Report noted that: ‘Minority groups, including …lesbian, gay, bisexual, transgender, intersex (LGBTJ) individuals, continued to face threats, discrimination, and violence and reported that the government took insufficient steps to protect them. Progovernment media used anti-LGBTI …rhetoric.v [15] The Department of Foreign Affairs and Trade (DFAT), Australia reports that: Human rights observers report LGBTI individuals often feel the need to hide their sexual orientation or gender identity at work, and those ·who do nor (or cannot may face negative repercussions. High unemployment rates in the economy as a whole make LGBTI individuals reluctant to complain about discrimination, for fear of losing their livelihoods. Turkish employment law allows the dismissal of a government employee who is found ‘to act in a shameful and embarrassing way unfit for the position of a civil servant’, while other statutes criminalise the undefined practice of ‘unchastity’. Human rights observers report employers have used these provisions to discriminate against LGBTI individuals. Social stigma against HIV/AIDS leads many LGBTI individuals to avoid testing for fear the results may be used against them.vi [16] The International Lesbian, Gay, Bisexual, Trans and Intersex Association, in its report on the treatment of sexual minorities notes that this group faced bias-motivated violence through political rhetoric.vii [17] The objective evidence discussed above establishes that sexual minorities, including transgender individuals face continuous threats and violence in Turkey. This is based on societal perceptions and political rhetoric against this particular social group. Therefore, based on all the evidence before me, I find that the claimant will face a serious possibility of persecution if she is forced to go back to Turkey. Her fears are indeed well-founded. State Protection [18] I find that adequate state protection has not been forthcoming to the claimant in this case. [19] According to the UN Special Rapporteur on extrajudicial, summary, or arbitrary detentions: ‘The challenges relating to the protection of lesbian, gay, bisexual and transgender persons are exacerbated by the attitude of some family members of such individuals, as well as the trend observed by the Special Rapporteur during his visit, whereby law enforcement officials and the judiciary seem to take a lenient attitude towards crime committed against such individuals.viii [20] DFAT reports that: Transgender individuals can legally change gender, although a court must grant permission based on a medical report. Legal gender reassignment is conditional upon the individual remaining unmarried and undergoing surgery and sterilisation. Legislation does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity in social institutions, government offices or corporations. 171e law does not guarantee LGBTI individuals certain rights enjoyed by others, including but not limited to marriage and associated partnership benefits such as retirement, inheritance. insurance. social security and access to the corpse in case of death.ix [21] A Response to Information Request (RIR) on the treatment of LGBTQ community in Turkey states that: The Dutch Ministry of Foreign Affairs report notes that the ban on public LGBTI activities in Ankara “remains in force [as of 2019]” (Netherlands Oct. 2019, 43). The Australian DFAT reports that “in practice the ban in Ankara and many other provinces persists as officials refuse permission on a case-by-case basis, citing security concerns” (Australia Sept. 2020, para. 3.89). The same source notes that in the months after the ban was reversed, police used water cannons, rubber bullets, and tear gas to disperse Pride Month gatherings (Australia 10 Sept. 2020, para. 3.89).x [22] The objective evidence shows that LGBTQ community in Turkey suffers from lack of favourable treatment from the authorities in that country. The government not only fails to protect such individuals from violence at the hands of non-state actors but also indulges in curbing their rights. Therefore, I am satisfied that the claimant will be unable to access adequate state protection in Turkey and that the presumption of state protection has been rebutted in this case. Internal Flight Alternative [23] I have also considered whether the claimant will be able to live safely anywhere else in Turkey as a transgender person. On the evidence before me, I find, on a balance of probabilities, that she does not have a viable internal flight alternative in her country. The societal attitudes against sexual minorities are prevalent throughout the country, which results in violence, threats, and discrimination against them. Objective evidencexi shows that transgender persons have a lot of difficulty securing rental premises, have extremely limited job prospects, and do not have access to adequate housing. Therefore, for these reasons and for the ones similar to those of state protection, I find that the claimant will not be able to live safely anywhere in Turkey and that she does not have a viable internal flight alternative in her country. CONCLUSION [24] Based on the analysis above, I find that the claimant is a Convention refugee under section 96 of IRPA. Accordingly, I accept her claim. (signed) Sandeep Chauhan December 10, 2021 i Immigration and Refugee Protection Act, S.C. 2001, c. 27. ii Exhibit 2. iii Exhibit 1. iv Exhibits 6, 7. v Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 1.14: Country Policy and Information Note. Turkey: Sexual orientation and gender identity. Version 2.0. United Kingdom. Home Office. June 2017. vi Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 1.17: DFAT Country Information Report: Turkey. Australia. Department of Foreign Affairs and Trade. 10 September 2020. vii Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 6.1: Turkey. Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe and Central Asia. International Lesbian, Gay, Bisexual, Trans and Intersex Association. ILGA-Europe. February 2020. viii Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 1. 14: Country Policy and Information Note. Turkey: Sexual orientation and gender identity. Version 2.0. United Kingdom. Home Office. June 2017. ix Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 1.17: DFAT Country Information Report: Turkey. Australia. Department of Foreign Affairs and Trade. 10 September 2020. x Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 6.5: Treatment of persons with diverse sexual orientation and gender identity and expression (SOGIE) by society and state authorities, including state protection and support services (2018-November 2020). Immigration and Refugee Board of Canada. 26 November 2020. TUR200360.E. xi Exhibit 3, National Documentation Package, Turkey, 16 April 2021, tab 6.1: Turkey. Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe and Central Asia. International Lesbian, Gay, Bisexual, Trans and Intersex Association. ILGA-Europe. February 2020.