2021 RLLR 34

2021 RLLR 34 Citation: 2021 RLLR 34 Tribunal: Refugee Protection Division Date of Decision: February 5, 2021 Panel: J. Eberhard Counsel for the Claimant(s): Reni Chang Country: Bahrain RPD Number: TB9-09367 Associated RPD Number(s): ATIP Number: A-2022-00665 ATIP Pages: 000166-000172 DECISION [1] MEMBER: So let me give you an overview. So, what the decision says is, I believe that you are who you say you are. I believe that you’ve come to Canada for protection for the reasons that you say you have. Given the circumstances that you have faced, and that you are afraid of facing if you remain in Bahrain. You cannot live as a person who you are not. It is reasonable and fair and right, that you want to live as you are. And this is a place where you can do that. So it’s a privilege to be able to give you this decision today. [2] Clearly, the state is among those that you are afraid of, so you can’t go to them for protection. Even if it’s a little bit mixed about where they stand, and they sometimes have not been as awful as they might have been. They do arrest people. And they do punish people under morality laws. And it’s the way that you have chosen to hide and how you have managed your life looking over your shoulder and worrying all the time is nota fair way to live your life. It’s not reasonable, it’s not okay. [3] So, there isn’t anywhere else in the country that you could go where you wouldn’t face the same problems and risks. So, for all of those reasons, I will grant you protection in a slightly longer and more formal decision in just a minute. Do you have any question so far? No. Counsel, that’s about the gist of it. [4] COUNSEL: Thank you. [5] MEMBER: What I will say is, given the amount of documentation and the length of time that your claim covers, which is basically your whole life, you’re XXXX. I could say a lot more, we could have been here for longer. It’s not necessary, as I said before, for me to keep you. It’s not necessary for me to put every piece into the decision. You know your story, and the people in your life who matter to you know your story. But I wanted to reflect some of it there. [6] So the things that I haven’t put in, forgive me. The things that I have, I chose because they were some of the things that stood out tome, just in case you’re wondering, okay? Okay. [7] Let me see what the time is 03:14, okay. [8] So I’ve considered your testimony and the other evidence before me and I’m ready to render my decision orally. You will receive an unedited transcript of this decision in the mail in the near future. Your Counsel will also get a copy. So if you have any questions for her, you can ask her. [9] The Claimant, XXXX XXXX, otherwise known as (XXXX) (ph), which we’re putting in parentheses, claims to be a citizen of Bahrain and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. [10] For the record, this claim was made in the name of XXXX XXXX XXXX XXXX XXXX XXXX which is the name that the Claimant was given at birth, and which appears on the Claimant’s passport. The Claimant has long lived as a male and has completed and signed the Immigration Refugees and Citizenship Canada’s request for a form — request form for a change of sex designation, what the form is called, to formerly request a change to his name on the record of this proceeding. The request form was signed on XXXX XXXX XXXX 2019 shortly after the Claimant arrived into Canada on claim protection. [11] For record keeping purposes only, the name the Claimant was assigned or given at birth, which also appears as I mentioned on his passport will be included on the decision as an AKA or an also known as. In making this change to the IRB’s record I consulted with and I’m applying both the Operational Bulletin Number 7, together with the Chairperson’s Guideline on Sexual Orientation and Gender Identity Expression or the SOGIE Guidelines. [12] In particular, I noted Section 4 of the SOGIE Guidelines on the use of appropriate language which states the following, “All persons in proceedings before the IRB have a responsibility to be respectful toward other participants. Part of this responsibility includes the use of appropriate language by all participants. Appropriate language is defined as language that reflects that person’s self-identification, and avoids negative connotations. And this is the key part individuals should be addressed and referred to by their chosen name, terminology and pronouns”. I find that you are a convention refugee because you have established that you face a serious possibility of persecution in Bahrain, as a member of a particular social group, namely trans man. [13] In deciding your claim, again, I’ve considered and applied the Chairperson’s Guideline on Sexual Orientation and Gender Identity Expression, which was released on May 1, 2017. [14] The details of your claim are set out at length in your Basis of Claim Form dated March 29, 2019. [15] In short, you were born in Bahrain in 1993, to a family of five sisters and parents. As you grew older, you realized that you were different from your sisters and your other cousins in terms of your preferences, including for play, and dress. As you matured, you came to understand that your identity as — you came to understand your identity male rather than female, as your physical body suggested. You sought ways to express your genuine identity in dress and name and in your relationships over time. [16] You forged your own way, trying to walk a tightrope of conformity to please your family and meet social expectations while still being able to recognize yourself. You found support along the way from romantic partners, friends, and in time medical and legal professionals and others who helped you as you sought ways to be more authentic, including in time by physically changing your body first hormonal and later surgically. [17] Your decision to leave Bahrain for Canada was not spontaneous, but rather well informed, considered legally advised and still heartbreaking because it meant having to leave your family and your community at home. [18] You’ve still not been able to tell your parents that you’re not coming home, and your earlier attempts to be truthful with them about who you are, and your struggle with gender dysphoria were overwhelmingly painful for all of you. [19] You left Bahrain as soon as you were able after you received your Canadian (audio cut). You’ve established your identity as a national of Bahrain. [20] COUNSEL: Sorry, I think we just lost you for a moment there. After heartbreaking, overwhelmingly heartbreaking for all of you, I think we lost you right after there. [21] MEMBER: Okay, I’ll start after that. Okay so I’ll go back your decision to flee Bahrain for Canada was not spontaneous, but rather well informed considered legally advised and still heartbreaking because it meant leaving your family and community at home. You still have not been able to tell your parents that you are not coming home. And your earlier attempts to be truthful with them about who you are, and your struggle with gender dysphoria were overwhelmingly painful for all of you. [22] You left Bahrain as soon as you were able, after receiving your Canadian visa, and you sought protection without delay after your arrival. [23] You’ve established your identity as a national of Bahrain on a balance of probabilities by your testimony in the copy of your passport, which is in Exhibit 1, another copy is also in Exhibit 4. I note you’ve also provided several additional identity documents in Exhibit 4. These include your national identity card and driving licence from Bahrain. [24] I find you to be a very credible witness and I believe what you’ve alleged in support of your claim. You testified in an open, direct, straightforward and very natural manner about all of the central aspects of your account, and there were no relevant inconsistencies in your testimony or contradictions between it and the other evidence before me. [25] You provided substantial personal documentation to corroborate all aspects of your claim in Exhibit 4 and 6, which includes the documents I’ve just received today. You provided documents that were consistent in content and chronology with your testimony about your personal identity, including your transition to a trans man. [26] In particular, you provided a carefully documented photo essay of your life over 15 years from 2005 to 2019. You’ve entitled your photo essay “Born Different”, and the photos you have selected to share clearly illustrate your lifelong efforts to freely express your true male identity. They also reflect your ongoing and persistent efforts to balance this desire with the need to protect your safety in Bahrain, within your immediate family, community and in your country. [27] As you describe in your account, your awareness of the risks you faced in Bahrain only increased over time, and you hadn’t even always appreciated precisely how precariously you were living. For example, your double life included dressing in male clothing, as your life expanded to use your words appreciating the risk, but not deescalating danger, given that it can be seen as illegal to cross-dress in Bahrain, or to elect to call yourself a male name. You didn’t know this when you first chose to use the name Soud. I’ve considered and accepted the medical evidence before me of your decisions to change your physical body over time to comport with your self-identification as male. [28] This has been a lengthy and undoubtedly difficult process at times, including rejection by doctors who wouldn’t undertake the risk of performing your top surgery, boards of directors and others who regulated your personal choices, and who could place you at grave risk if your intentions and information were revealed. [29] Other documents and evidence corroborate your account of the efforts you undertook before surgery to shift your external appearance into alignment with your internal one, including by wearing shirt binders for many years and undergoing hormone therapy, which was largely unavailable to you in Bahrain until much later and then not particularly hopefully. Medical reports also document your efforts to seek legal and safer ways to transition including through chromosomal and hormonal analysis and abdominal ultrasounds. [30] Ultimately, these efforts were unsuccessful, as were your later efforts to seek professional legal assistance in claiming your own identity in Bahrain. [31] Over and again, you heard from psychiatrists and the legal expert that you have talked about that you would have to leave Bahrain in order to live freely and safely as yourself at the high cost of leaving behind your family and other people that you love. [32] The letters also in Exhibit 4 reflect the many persons you’ve known in a wide variety of capacities as close family, friends, former employers, volunteer coordinator. All of these letters indicate that you’re a well respected, capable and cared about human being, though not all of them reflect knowledge of your male identity. [33] While this synopsis doesn’t reflect the full breadth of the personal evidence that you’ve disclosed, I have considered it all carefully. And I find that the documents that you’ve mentioned together with your testimony are consistent with what you’ve set out in your Basis of Claim Form account about why you fear returning to Bahrain. [34] In short, I accept the evidence that you’ve presented both documentary and testamentary. And I find it to be (unintelligible 02:03:48). [35] So a person who seeks protection as a convention refugee has to establish both that he’s afraid of persecution at home, and that there’s an objective basis for that fear. [36] In your case, the primary convention ground is as I said earlier, a particular social group of which you are a member as a trans man who’s subject to persecution in Bahrain. I find that your decision to leave as soon as possible after receiving your Canadian visa is consistent with having a subjective fear of persecution for the reasons that you have set out in great detail. [37] I accept your explanation for the delay in time as between when you got your visa and when you finally left the country. And mainly that you needed to cover your departure for the sake of your parents, who needed a good reason and you were waiting for leave from work to be able to go. [38] In making this finding, I’ve also considered your words on the final slide of your photo essay, namely, “I had to choose between the people I love and seeking protection in Canada. I chose to leave the country after consultations and confirmation that I have no future in Bahrain. I’ve been living as a man ever since”. [39] The country condition documents in the National Documentation Package for Bahrain dated 31, March 2020, which are in Exhibit 3, as well as those exhibited by — submitted by Counsel in Exhibit 5 are also consistent with your allegations that there’s a serious possibility you’ll face persecution as a trans man if you returned to Bahrain, particular I’ve looked at items 6.1, 2.1 and 2.6. [40] In short, well, there’s some mixed evidence, according to the United States Department of State report, the 1976 penal code. In other words, the law in Bahrain does not criminalize same sex, sexual conduct between consenting adults of at least 21 years. But it does not extend anti-discrimination protections to lesbian, gay, bisexual, transgender intersex individuals on the basis of their sexual orientation or gender identity. [41] According to human rights watch, the government prosecuted acts, such as organizing a, “gay party, or cross dressing” under Penal Code provisions against “indecency and immorality”. Discrimination based on sexual orientation or gender identity occurred in Bahrain, including in the areas of employment and obtaining legal identity documents. In some cases, courts have permitted transgender individuals to update identity documents if they had undergone sex reassignment surgery, but as Counsel has suggested by drawing my attention to a case where somebody was granted permission to have this surgery and later ran into troubles nonetheless, things in Bahrain are not clear-cut, and the risks are too high. [42] Freedom House states that “same sex activity is not illegal, yet individuals have reportedly been punished for it”. And some organizations explain that it should be noted that there is morality or public decency laws in place in Bahrain that can be interpreted to include LGB and trans persons. Article 324 of the 1976 Penal Code states, that every person who entices a male or female to commit acts of immorality or prostitution, or assist in the acts of any matter whatsoever shall be liable for a prison sentence. This is very general and the fact that such a general morality law exist on the books and can be used puts you at risk. [43] Moreover, other documents say that law enforcement agencies in the courts have broad discretionary power to use fines or jail time for any activities that they deem to be in violation of traditional morality. [44] Another article by Middle Eastern news site Al Bawaba states that “gender non conforming individuals encounter harassment by police and Bahraini citizens alike”. Country Reports 2014 further states that in July of 2014, a foreign man was sentenced to a month in jail, followed by deportation for “wearing women’s makeup and accessories”. The source adds that the man was arrested because police thought he was walking in a feminine way. This kind of arbitrary, discretionary power is not what you would choose to be subjected to, and certainly would constitute persecution if you are constantly fearing it. [45] Moreover, sources indicate that there are no legal measures to prevent discrimination against sexual minorities in Bahrain. According to Human Rights Watch, and there are no organizations in Bahrain, to which sexual minorities may turn for recourse of protection. [46] As we discussed, during your hearing, the very fact that there’s almost no information in the NDP about the situation for sexual minorities suggests the kind of repression and discretionary over use of morality laws that is consistent with your account of your own personal experience living there. [47] Account of the objective evidence that I’ve just described and noting that Counsel has provided me with well over 100 pages of documentary evidence, which is consistent with what I just set out with more emphasis on cross-dressing and some other aspects of your claim. I find that your fear of persecution in Bahrain is well-founded. [48] So given the evidence before me both personal and objective, I find there’s a serious possibility that you’ll face persecution in Bahrain if you return because of your membership in a particular social group as a trans man. [49] There’s a presumption that states can protect their own citizens except when they’re in a state of complete breakdown. To rebut this presumption of state protection, a claimant has to provide what we call clear and convincing evidence of the state’s inability or unwillingness. [50] Again, with respect to the country condition documents that I have described, I find that you are precariously situated as a trans man in Bahrain, you’re not permitted to be who you are, to dress as you choose, to call yourself by your chosen name. And you face risks at every level, from your family level, to your community level, to your state level, with all of the intersecting pieces of that whether it’s employment or healthcare or access to a wide variety of what is the normal going about of life business. [51] Police will not protect you in Bahrain. Indeed, they may be the agents responsible for persecuting you by punishing your dress and your self expression. [52] So for all of these reasons, following the Supreme Court of Canada’s decision and award, I find you presented clear and convincing evidence that rebuts the presumption that adequate state protection is available to you on a balance of probabilities having regard to your own persona) experience and the experiences of others similarly situated to you. [53] I’ve also considered whether an internal flight alternative exist for you. Generally speaking, internal relocation is not an option if a person has to conceal their sexual orientation or gender identity in the proposed new location. Anywhere you go in Bahrain, you would face the same situation. I therefore find you face a serious possibility of persecution throughout Bahrain, and therefore there is no internal flight alternative available to you. [54] So for all of these reasons, I find you established you face a serious possibility of persecution in Bahrain on a convention ground. I therefore find that you are convention refugee and I accept your claim. [55] COUNSEL: Thank you, Madam Member. [56] MEMBER: You’re most welcome. ———-REASONS CONCLUDED———-