All Countries Hong Kong

2020 RLLR 160

Citation: 2020 RLLR 160
Tribunal: Refugee Protection Division
Date of Decision: November 4, 2020
Panel: Roman Kotovych
Counsel for the Claimant(s): Ashley Erin Fisch
Country: Hong Kong
RPD Number: TB9-23881
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000144-000146


[1]       MEMBER: XXXX XXXX, also known legally on her passport as XXXX XXXX requests refugee protection under Sections 96 and 97(1) of the Immigration and Refugee Protection Act. The Claimant’s allegations are set out in her Basis of Claim form.

[2]       In summary she is alleged to be a male born, Hong Kong transgendered woman who seeks protection in Canada on the basis of her transgender identity. The claim also touched on elements of political opposition within Hong Kong which was on file which I did not address in my hearing and does not form a part of these reasons.

[3]       At the outset I noted the application of the SOGI guidelines to this claim. I also took steps to ensure that the Claimant’s transgender identity was respected to the best of my abilities.

[4]       I find, Ma’am, that you are a “Convention Refugee” and my [inaudible]. First on the issue [inaudible] on a balance of probabilities from the documents on file your persona) identity both in terms of your birth identity, your transition as well as your citizenship I am satisfied on a balance of probabilities that you maintain the status you do within Hong Kong.

[5]       You do not appear to have any permanent or citizenship status elsewhere including the United Kingdom. I find on this evidence that you have established your identity, your citizenship as well as your transition which was well documented on the file.

[6]       I find there to be a nexus of particular social group under Section 96.

[7]       I found you to be credible in your testimony as well as in the documentation. You testified in a straightforward manner. There were no relative inconsistencies or contradictions in your testimony.

[8]       As outlined at the beginning of the hearing my main issue in this case was the issue of discrimination and harassment stigma etc. rising to the level of persecution. There is documentary evidence as to the challenges faced by sexual and gender minorities in Hong Kong as well as the allegations outlined in your claim. My main concern — not concern.

[9]       My main legal issue to resolve and factual issue was, does the treatment in Hong Kong amount to persecution or is it harassment in society, discrimination in society. I find in your circumstances, particular circumstances that I am satisfied on a balance of probabilities that, yes, it does and that you would face a serious possibility of persecution in a forward-looking capacity returning to Hong Kong.

[10]     You outlined some of your fears of returning to Hong Kong and you testified as to your fears. I find cumulatively the challenges you would face in Hong Kong would amount cumulatively to persecution. They are likely to be repetitive. If you were to return, they could potentially escalate so it’s not simply one issue that you would face as a transgendered woman. It is the whole of what you have told me.

[11]     In particular I have found particularly compelling the issue of your marriage where you are married and your marriage would be at risk returning to Hong Kong on the basis of your transition which I find adds to that analysis I found compelling.

[12]     Your testimony as to denial of health; the potential denial of health care in Hong Kong which is not a Section 97 denial of shortcomings. It would be denial of health care applied in a persecutory manner based on your identity as a trans woman. It would also add to that persecutory element. Added to that you’ve testified as to your fear of potential physical harm or mistreatment both from authorities and from society as a whole.

[13]     I find all of these factors taken together rise to the level of possible persecution. Rise to the level of categorizing your claim as persecution and on a balance of probabilities rise to the level of you facing a serious possibility of harm returning to Hong Kong based on your identity as a transgendered woman.

[14]     This is backed up by the extensive documentation you provided, both persona) and country docs as well as some of the evidence in the Hong Kong and in NDP.

[15]     Now on the issue of state protection, I find there would be inadequate state protection for you in Hong Kong as it is in part the authorities that you fear in that country. I also note that the country is in a state of flux at the moment given its situation of protests and its relationship with China which while not potentially directly relevant certainly adds to the analysis of the adequate state protection in that country at the moment.

[16]     Similarly, the issue of internal flight alternative I can point to a situation in Hong Kong, both geographically and in terms of the control of Hong Kong where you could relocate withing Hong Kong to seek safety within Hong Kong and therefore I find that you would not have a viable internal flight alternative there.

[17]     So, for all the above reasons, I find you to have a well-founded fear of persecution under Section 96. For these reasons I find you to be a “Convention Refugee” under the Immigration and Refugee Protection Act I therefore accept your claim.

[18]     Congratulations and I wish you the very best of luck. Alright. Thank you all for your participation today. If there is nothing else, I wish you all a good afternoon. Stay safe and we are adjourned.


All Countries Hong Kong

2020 RLLR 45

Citation: 2020 RLLR 45
Tribunal: Refugee Protection Division
Date of Decision: October 8, 2020
Panel: Avril Cardoso
Counsel for the Claimant(s): Evan Andrew Karmazyn
Country: Hong Kong
RPD Number: TB9-15472
ATIP Number: A-2021-00655
ATIP Pages: 000106-000110


[1]       MEMBER: This is the decision for [XXX]. You are claiming to be a citizen of Hong Kong Special Administrative Region Peoples Republic of China. And you’re claiming refugee protection pursuant to s. 96 and 97 (1) of the Immigration and Refugee Protection Act.

[2]       I’ve considered your testimony and the other evidence of the case. I’m ready to render my decision orally.


[3]       I find that you are a convention refugee on the ground of anti-government political opinion for the following reasons.


[4]       You allege the following: In 2015 and 2016, you experience threats and pressure to resign from your position as a [XXX] because of your pro-democracy views and activities.

[5]       After obtaining a study visa for Canada, you left Hong Kong in [XXX] 2018. You fear returning to Hong Kong because of your anti-government views in relation to the autonomy and pro-democracy views of Hong Kong.

[6]       You allege if you return, you will be persecuted. You allege that there is no state protection for you or an internal flight alternative.


[7]       I find that your personal identity as a citizen of the Hong Kong Special Administration Region People’s Republic of China has been established on the balance of probabilities by your testimony and the supporting documents filed in the exhibits, specifically your passport, Hong Kong permanent identity card, and driver’s license found in Exhibit-1.


[8]       I find there is a link between what you fear and the ground of political opinion, and your claim is therefore assessed under s. 96.


[9]       In terms of your general credibility, I found you to be a credible witness, and I therefore believe what you have alleged in your oral testimony and in your basis of claim form. I find that you are a long-standing pro­ democracy activist in Hong Kong.

[10]     Your testimony about your long-standing involvement and participation in the quest for genuine democracy and an autonomous Hong Kong was detailed and spontaneous. You described your strong belief in the rule of law, of human rights, and universal suffrage, and testified about your participation in protests during the Umbrella Movement. You submitted photos of your participation in protest activities in Exhibit-7.

[11]     As the result of your activities, I find on a balance of probabilities, that you face threats and harassment from anti-democracy persons. You’ve provided detailed testimony about the threats and the steps you took to report them to school management and other colleagues. You explained that as a result of the ongoing threats, you were experiencing [XXX] which was [XXX], and you also tried [XXX]jjjl4po-0l with the symptoms.

[12]     Your testimony about the fear and worry you felt when you came to school each day was most compelling and without embellishment. Your testimony was corroborated by medical report which is found in Exhibit-7. You also testified that reported the issues to the police liaison officer who was assigned to your school, but no action was taken.

[13]     Based on legal advice from a colleague who is a lawyer, you decided not to file an official report to the police because of their violent response to protests and their bias against democracy and actions which demonstrate they are a tool of the communist government.

[14]     In support of your testimony, you filed a complaint letter and a letter from the episcopal delegate for education, both found in Exhibit-7 which are consistent with your testimony and basis of claim form.

[15]     Most compelling was your testimony about the significant impact the threats and harassment had on your [XXX] health and marriage.

[16]     You provided detailed testimony about your political activities in Canada as they relate to Hong Kong. And I find you’ve attended a number of protests in Canada to support your brothers and sisters in Hong Kong. You provided testimony which is corroborated with photos and other supporting documents found in Exhibit-7 about your attendance at the Canada-Hong Kong Link event on [XXX] 2019, a protest on [XXX] 2020 at Old City Hall, an event about forgiveness in the context of the Hong Kong protest on [XXX] 2020, and another protest on St. George Street outside the Hong Kong Economic and Trade Office.

[17]     Some of these events have been posted online, and papers you have written with political content about Hong Kong protests and anti-democracy policies are also published in writing and online.

[18]     I find that your reavailment to Hong Kong in [XXX] 2018, [XXX] 2019, and [XXX] 2019 was reasonably explained. You testified that you were experiencing difficulties in your marriage and returned to Hong Kong to save your marriage in [XXX]. And returned in May 2019 to support your wife during the difficult time she faced with the Joss of her mother.

[19]     I also find that your delay in claiming protection for about nine months is reasonably explained. You explained that it was not until the extradition law was proposed in mid-2019 that you were really fearful of returning to Hong Kong given your pro-democracy activist profile. You also testified that with the recent introduction of the Security Law, you are more fearful of harm given the dilution of democratic principles contained in this legislation.

[20]     I therefore find that your subjective fear is established by your credible testimony and supporting documents, and I believe what you’ve alleged on a balance of probabilities.

Objective Basis

[21]     Your fear of being deported to Hong Kong in the present circumstances is a fear that is well-founded in the objective documents.

[22]     Item 2.1 of the NDP indicates that the government increasingly moved to restrict the expression of views it found objectionable even when those expressions occurred abroad.

[23]     This item also reports the following: That the government also expanded attempts to control the global dissemination of information online. Economic leverage on the mainland was used to suppress freedom of expression in Hong Kong. For example, employees of Cathay Airlines who engaged in protests or who demonstrated radical conduct were not permitted to work on flights entering the Chinese airspace. The government heavily censored the Hong Kong protests and blocked any neutral or positive reports about the protestors.

[24]     Item 2.2 reports that the founders of the Occupy Central campaign were charged with public nuisance­ related offences for their involvement with the Umbrella Movement. Also, four elected pro-democracy legislators were disqualified for failing to meet the National People’s Congress standing committee interpretation of the Hong Kong basic law when they took their oaths of office.

[25]     The Freedom House report found in item 2.3 reports a downward trend due to the expulsion of four pro­ democracy lawmakers from the legislature, jail sentences against protest leaders, and other apparent efforts by pro-Beijing authorities to stamp out a movement calling for local self-determination.

[26]     Item 4.1 reports that the 2014 Hong Kong protests and 2016 Legislative Council elections caught Beijing’s attention, and since Beijing seems to be tightening it’s posture towards Hong Kong’s governance, Beijing views all protest and pro-democracy political voices as potential challenges to China’s one-party rule. But it perceives Hong Kong’s calls for democracy as particularly threatening because of the city status as an international economic hub.

[27]     Your Counsel has submitted more current, objective evidence from reliable sources. In particular, the BEC news report found in Exhibit-7 reports that a new security law came into force on June 30th 2020 which gives Beijing powers to shape life in Hong Kong like never before. This article reports that the provisions of this legislation effectively curtails freedom of speech and protest and includes the ability of referral of some cases for trial in mainland China.

[28]     The July 2020 Amnesty International report also found in Exhibit-7 states that the new security law is overly-broad and vague and almost anything could be construed as a threat to national security. A New York Times article dated April 23rd 2019 also in Exhibit-7 reports that Umbrella Movement activists have been sentenced with terms up to 16 months for their roles in demonstrations in 2014.

State Protection

[29]     In this case, the agent of persecution is the state, as the persecution you would face should you return to Hong Kong is at the hands of the authorities. Accordingly, I find there is no state protection available to you.

Internal Flight Alternative

[30]     I find that there is a serious possibility of persecution throughout Hong Kong and therefore, no internal flight alternative is available to you, as the state is the agent of persecution and would be motivated to find you.


[31]     Based on the totality of the evidence, I find you to be a convention refugee, and I accept your claim.