A Brazilian national requested international protection in Belgium on 5 July 2023, claiming he was at risk of discrimination and violence upon return to his country of origin due to his status as a former transgender person. He also stated that he feared poverty in Brazil and expressed concerns about his inability to secure dignified employment. By decision of 29 July 2024, the Office of the Commissioner General for Refugees and Stateless Persons (CGRS), rejected his request and found that he was not at risk of persecution within the meaning of the Geneva Refugee Convention, or a real risk of suffering serious harm as defined in the subsidiary protection framework. The applicant further appealed before the Council for Alien Law Litigation (CALL). 

The CALL found that the applicant did not succeed in demonstrating a well-founded fear of persecution within the meaning of the Geneva Refugee Convention, nor a real risk of suffering serious harm as defined under the subsidiary protection status. 

The CALL first considered that the applicant was sexually abused several times by different men from the age of 6 until 12 and was bullied at school and by his brothers due to his feminine behaviour. The court noted that the applicant started prostituting himself as a homosexual since he was 14 years old and then started prostituting as a trans woman at the age of 15. He then began hormone treatment, later underwent legal gender reassignment, and lived as a woman for several years, during which he had breast and hip implant surgery. The CALL further noted that the applicant began engaging in sex work in Belgium in 2019 and was subjected to physical abuse by a Brazilian man with whom he cohabited and with whom he was in a romantic relationship. The court then considered that in May 2020 the applicant started attending a Protestant, Portuguese-speaking church in Brussels and realised he did not longer want to live as a trans woman, therefore stopping taking female hormones, dressing as a woman, and working in prostitution. The court noted that the applicant was found to be HIV-positive and moved to Antwerp where he took shelter with the Cherut vzw organisation, receiving psychosocial counselling from them. On 27 April 2023, the applicant spoke to a lawyer in Brazil to officially change his gender back to male as he identified himself as a heterosexual man. 

The court noted that the applicant only submitted a request for international protection in July 2023, after having resided in Belgium for more than three and a half years during which time he knew he was staying illegally, and that his alleged ignorance of the possibility to submit an application could not be accepted. It considered that his attitude contradicted the existence of a genuine fear of persecution or a real risk of serious harm. It then emphasised that there was no indication that, upon return, he would face any problems with his family, since the applicant acknowledged that his family members accepted him “from a distance”, should he choose to resettle in Aracaju, where his brothers and sisters lived. 

The court underlined that his fear of poverty and lack of work in Brazil were purely socio-economic motives, which do not fall within the scope of the Geneva Refugee Convention, nor there were compelling grounds to believe that he would face a real risk of serious harm. The court noted that his statements indicated that in the past he had access to the labour market for a continuous period of three years as a bartender, caregiver in a nursing home, and domestic worker, as well as to the housing market in Brazil. The CALL found no elements indicating that the applicant, a former trans woman currently living as a heterosexual man, would be unable to earn an income or support himself due to his individual circumstances upon return, or that he would fall into extreme poverty. 

The CALL also underlined that the fact that he did not wish to give up his job at Cherut Vzw in Belgium was a motive that also fell outside the scope of the Geneva Refugee Convention and the definition of subsidiary protection. 

Regarding the applicant's statement that Brazil was a violent country, the court noted that the criminal violence he suffered in his youth occurred too far in the past to be considered in assessing a current fear of persecution or a real risk of serious harm. Furthermore, the applicant acknowledged that outside the prostitution environment, he could turn to the police in case of problems, even if he did not trust them. 

The court also considered that the applicant did not cite his HIV-positive status as a reason why he could not return to Brazil. According to the information available to the CGRS, HIV treatment was freely available in Brazil, and there existed a community-based mental health network which, although still open to improvement, provided universal and free access to (specialised) mental health services, including primary care, crisis intervention, inpatient care, deinstitutionalization initiatives, and psychosocial rehabilitation. Concerning the abuses he suffered at the hands of a Brazilian man in Brussels, the court found that those events occurred in Belgium and therefore were not relevant to the assessment of his fear regarding Brazil. 

Then the CALL took into account the country information regarding the situation of the LGBTQI community in Brazil, finding that individuals belonging to this community could face physical violence and discrimination in access to the labour market and healthcare, especially during the presidency of Bolsonaro. The court also considered that while Brazil had the highest number of murders of transgender people in the world, it also, for the first time in the country's history, elected two transgender women as federal representatives in 2022. It then emphasised that in 2019, the Brazilian Supreme Court ruled that LGBTQI+ individuals fall under the protection of a criminal law prohibiting discrimination based on race, religion, skin colour, ethnicity, and national origin and in April 2023, the National Council for the Rights of Lesbians, Gays, Bisexuals, Transvestites, Transgender Persons, and Others was established. Moreover, it underlined that on 1 January 2023, President Lula took office, signalling a break with the previous Bolsonaro presidency. 

Although discrimination and violence against LGBTQI individuals remained a problem in Brazil, the CALL considered that relevant country of information did not show that homophobic violence and discrimination in the country were systematic, nor that every person belonging to the LGBTQI community risked persecution solely because of their sexual orientation. Furthermore, the court noted that the applicant did not provide any objective country information indicating that former trans women who, after undergoing restorative surgery, lived again as men, risked persecution or equivalent discrimination solely because they still possessed identity documents indicating them as female. 

Considering the above, the CALL rejected the appeal.