2023 RLLR 117

2023 RLLR 117 Citation: 2023 RLLR 117 Tribunal: Refugee Protection Division Date of Decision: November 2, 2023 Panel: Sandeep Chauhan Counsel for the Claimant(s): Heather Cameron Purves Country: USA RPD Number: VC3-06662 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION INTRODUCTION [1] These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX (the “claimant”), who is a citizen of United States of America (USA) and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1] [2] In rendering my reasons, I have considered the Chairperson’s Guidelines 9 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.[2] [4] She fears persecution at the hands of society and the authorities in USA due to her sexual orientation and gender identity. [5] The claimant is a 29-year-old, who was assigned female gender at birth. She never identified with her gender growing up and had an abusive upbringing, being subject to domestic violence. The claimant did not discuss her gender identity and sexual orientation with her parents, and only discussed this with her very close friends in 2017-2018. She prefers to use XXXX as her name, but her mother did not start addressing her as such much later, until recently. The claimant has lived in various states, including Kentucky, Florida, and California, but has not been provided with health supports – both mental and physical due to her gender identity and sexual orientation. She met with an accident in 2015 and has struggled with XXXX XXXX and XXXX XXXX since that time. The claimant has been requesting XXXX XXXX from the US government, but none has been forthcoming. Facing XXXX XXXX XXXX and the prospect of being homeless, she travelled to Canada on XXXX XXXX, 2022 and sought refugee protection. DETERMINATION [6] I find that the claimant is a Convention refugee as she has established a serious possibility of persecution for the following reasons. ANALYSIS Identity [7] I find that the claimant’s identity as a national of USA is established, on a balance of probabilities, based on a certified copy of her American passport on file.[3] Nexus [8] 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 fears in this case is because of her gender identity and sexual orientation. I find that she has established nexus to the Convention ground of membership in a particular social group: namely a claimant fearing persecution due to her sexual orientation. As such, her claim is being assessed under section 96 of IRPA and not under section 97. Credibility [9] 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.)) In this case, the claimant testified in a detailed manner and explained how the life events unfolded for her in the US. She was quite emotional upon recounting her experiences. [10] Apart from her oral testimony, she has provided corroborating documentary evidence[4] to support her claim. I have no reason to doubt the genuineness of these documents and accept them as genuine. [11] Among other documents, the evidence includes diagnosis of the claimant’s medical problems, her housing dispute with the authorities in the US, and a XXXX XXXX report, which are consistent with her allegations. Therefore, based on the claimant’s straightforward testimony and the corroborating documentary evidence on file, I find her to be a credible witness and accept her allegations to be true on a balance of probabilities, including her subjective fear of returning to the US. Exclusion under Article 1E [12] The claimant got married to a citizen of the United Kingdom (UK) in or around 2015/2016. This raises the issue of exclusion under Article 1E as the claimant could have access to permanent residency in the UK based on spousal sponsorship. I find that this exclusion does not apply as the claimant never lived in the UK. [13] She accompanied her wife to England and lived there for a month in 2017 but did not find the environment suitable for her to relocate their permanently. She separated from her spouse in 2017 as theirs was a long-distance relationship. The claimant has had no communication with her wife since 2021. There was no sponsorship application filed by her wife in the UK for the claimant to move there permanently. [14] As well, objective evidence[5] submitted by the claimant’s counsel elaborates on the conditions under which a spouse of a UK citizen can have access to permanent residency. One of the conditions is that the couple has to have been in a common-law or married relationship for at least two years before the UK citizen can apply for the foreign spouse to reside permanently in the UK. Since the claimant’s relationship with her wife was a long-distance one and they ended up separating after less than two years of marriage, this would make the claimant ineligible for being sponsored as a permanent resident of the UK. [15] Therefore, I am satisfied that as of the date of hearing, the claimant was not a permanent resident of the UK and did not have access to such status in the past in that country. Well-Founded Fear of Persecution and Risk of Harm [16] In order for me to find that the claimant is a Convention refugee, I have to find that the objective evidence establishes that she will face a serious possibility of persecution if removed to the US. 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. [17] A report by Human Rights Campaign Foundation states that: Sadly, 2022 has already seen at least 35 transgender people fatally shot or killed by other violent means. We say “at least” because too often these stories go unreported — or misreported. In previous years, the majority of these people were Black and Latinx transgender women. In 2021, the Human Rights Campaign tracked a record number of violent fatal incidents against transgender and gender non-conforming people — with 50 fatalities tracked. These victims, like all of us, are loving partners, parents, family members, friends and community members. They worked, went to school and attended houses of worship. They were real people — people who did not deserve to have their lives taken from them. [6] [18] The claimant has been rendered homeless and lost her employment several times due to discrimination in the workplace, and due to unfair and discriminatory treatment by the authorities. She has not had access to hormone therapy due to her gender identity. On the state of the LGBTQ community, Center for American Progress notes that: This comprehensive study of LGBTQ Americans raises important issues for policymakers and other leaders in American life to consider. With more than one-third of LGBTQ Americans reporting some form of discrimination in their personal and work lives, including more than 6 in 10 transgender Americans, clearly more needs to be done to ensure equal treatment in law and in practice for this community. The U.S. Supreme Court’s decision on June 15, 2020, extending employment protections to LGBTQ workers was a significant victory. However, ongoing discrimination in the workplace, in health care, and in public places needs to be better addressed through comprehensive legislation such as the Equality Act and with targeted resources designed specifically to help this community.[7] [19] In a report titled ‘State Attacks Against LGBTQI+ Rights’, Center for American Progress states that: Across the country, extremist anti-LGBTQI+ and anti-transgender groups are waging a coordinated campaign to restrict LGBTQI+ rights and target transgender youth specifically. According to the Center for American Progress’ partners at the Equality Federation, nearly 400 anti-LGBTQI+ bills were introduced across the country in 2021. In 2022, state legislatures are currently considering approximately 300 anti-LGBTQI+ bills. Unfortunately, legislators in multiple states—such as Alabama, Arizona, Florida, Iowa, Oklahoma, South Dakota, Utah, and others—have already enacted anti-LGBTQI+ bills since the start of 2022. In total, there are currently 14 states with laws categorically banning transgender students from participating in school sports consistent with their gender identity and four have adopted laws or taken executive action to ban or restrict access to medically necessary, best-practice gender-affirming care for transgender youth. These anti-LGBTQI+ attacks endanger the fundamental rights and well-being of LGBTQI+ communities. Not only does the passage of these measures directly harm states’ LGBTQI+ communities, but data also show that just the introduction of these kinds of bills —which are often fueled by hateful and misinformed rhetoric—adversely affects LGBTQI+ communities, especially youth. For example, data from The Trevor Project show that 66 percent of LGBTQ youth, including 85 percent of transgender and/or nonbinary youth, report that recent debates around state laws to restrict the rights of transgender people have negatively affected their mental health. Learn more about the proliferation of anti-LGBTQI+ bills and the 2022 legislative landscape for LGBTQI+ rights here. [8] [20] The objective evidence discussed above establishes that sexual minorities in the US face persecution not only from society but the authorities as well. States in the US are passing laws that infringe upon the rights of transgender persons. The claimant in this case has suffered from such discrimination and unfair treatment, being denied basic health care such as mental health therapy and access to XXXX XXXX. She has lost her employment, home, and left to deal with XXXX XXXX XXXX on her own, without adequate support from the US authorities because she identifies herself as a non-binary gendered person. [21] Therefore, based on all the evidence before me, I find that the claimant will face a serious possibility of persecution if forced to go back to the US, especially since sexual minorities are persecuted in that country by both state and non-state actors. I find that the claimant’s fears are indeed well-founded. State Protection [22] I find that it would be objectively unreasonable for the claimant to seek the protection of the state of the US authorities in light of her particular circumstances. [23] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown.[9] However, this is a rebuttable presumption. [24] As discussed above, there are over 300 legislations currently being discussed that discriminate against the LGBTQ+ community. A lot of the states have already passed such legislation. As well, there is violence against anyone identifying as a transgender person. Therefore, given the objective evidence discussed in the preceding paragraphs that shows that states are enacting legislations or have enacted legislation against the LGBTQ+ community, I find that the US authorities are one of the agents of persecution. [25] Therefore, I find that the presumption of state protection has been rebutted in this case. Internal Flight Alternative (IFA) [26] I have analyzed whether a viable internal flight alternative exists for the claimant. [27] On the evidence before me, I find that there is a serious possibility of persecution for her throughout the US. The claimant has lived in several states and the treatment meted out to her as a member of the LGBTQ+ community has been similar. [28] Therefore, based on this reason and the ones similar to those in relation to that of state protection, I am satisfied that the claimant does not have a viable IFA in her home country. CONCLUSION [29] For the foregoing reasons, I find that the claimant is a Convention refugee under section 96 of IRPA. Therefore, I accept her claim. ——— REASONS CONCLUDED ——— [1] Immigration and Refugee Protection Act, S.C. 2001, c. 27. [2] Exhibit 2. [3] Exhibit 1. [4] Exhibit 4. [5] Ibid. [6] Exhibit 3, National Documentation Package, United States, 31 January 2023, tab 6.3: Fatal Violence Against the Transgender and Gender Non-Conforming Community in 2022. Human Rights Campaign Foundation. 2022. [7] Exhibit 3, National Documentation Package, United States, 31 January 2023, tab 6.2: The State of the LGBTQ Community in 2020: A National Public Opinion Study. Center for American Progress. Sharita Gruberg et al. 6 October 2020. [8] Exhibit 3, National Documentation Package, United States, 31 January 2023, tab 6.6: State Attacks Against LGBTQI+ Rights. Center for American Progress. Caroline Medina; Sharita Gruberg. 13 April 2022. [9] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 725.