Citation: 2021 RLLR 20
Tribunal: Refugee Protection Division
Date of Decision: April 8, 2021
Panel: Kari Schroeder
Counsel for the Claimant(s): Albert Chiu
Country: Japan
RPD Number: VB9-09766
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000086-000089
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX as a citizen of Japan who is claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.
[2] In rendering a decision today, I have applied the Chairperson’ s Guideline on Sexual Orientation and Gender Identity and Expression. The following is a brief synopsis of the claimant’s allegations.
[3] The claimant is a transgender woman, she was diagnosed with gender identity disorder in 2009 in Japan and underwent two (2) years of psychotherapy. She had gender reassignment surgery in Thailand in 2011. The claimant has also been diagnosed with High-Functioning Autism spectrum and disorder. The claimant came to Canada in 2016 as a temporary worker. She claimed refugee protection in 2019. The claimant fears returning to Japan to face discrimination and harassment as a transgender woman.
[4] I find that the claimant is a Convention refugee pursuant to Section 96 of the Act for the reasons that follow.
[5] The claimant’s identity today has been established through a certified copy of her passport on file before me.
[6] In terms of credibility, I’ll note that there is a presumption of truth applied to all refugee claimants unless there is a reason to doubt their allegations, and today I had no concerns arising from the claimant’s testimony. She testified in a direct and straightforward manner with no attempt at embellishing the evidence, there were no material discrepancies between her testimony and her Basis of Claim form. I note that the claimant has been diagnosed with autism and so she did sometimes take some time to respond to my questions, but I found this did not impact her credibility. The claimant testified that she began hormone replacement therapy in 2009 but that she had to purchase the hormones from Thailand as it was difficult to find in Japan. Similarly the claimant underwent surgery in Thailand after visiting different doctors in Japan. She testified that there were few doctors who would be able to perform the surgery for her. After she transitioned and retuned to Japan, she testified to always feeling that something was wrong, and that people treated her differently. Ultimately she did not feel safe and made the decision to leave Japan. She also faced discrimination in employment because she was transgender. I have documentary evidence before me, including medical reports confirming the gender reassignment surgery in 2011 and a copy of the two (2) birth certificates showing the change in gender. Based on the evidence before me I accept the claimant’s allegations as credible.
[7] I find that there is a Nexus to the Convention ground in this case, namely membership in a particular social group that the claimant is a transgender woman.
[8] I have considered whether there is an issue with subjective fear given that the claimant did not claim refugee protection right away after entering Canada. She testified that she came as a worker and her intent was to leave Japan which she did after researching many different options for many different countries. She was able to obtain an open work permit in Canada and for a time felt that she would be able to remain. However, after experiencing some difficulties with employment, including sexual harassment by her employer she realized that she may have to return to Japan, and it was at that point she visited a non-profit organization and learned about making a refugee claim. And so I find that the claimant was making attempts to remain in Canada and that her failure to claim when she arrived in Canada does not detract from her subjective fear.
[9] I have reviewed the objective evidence before me, and I also find that it also corroborates the claimant’s allegations. While it is possible in Japan to change one’s gender legally, the requirements are complex, discriminatory and restrictive. The law requires transgender persons to be without reproductive capacity, effectively requiring surgical sterilization for most persons in order to have their gender identity legally recognized. They also must meet additional conditions, including undergoing a psychiatric evaluation and receiving a diagnosis of gender identity disorder. Which I’ll note that the World Health Organization has formally removed from the mental disorder section of the international classification of diseases. The person has to be unmarried and over the age of 20 and cannot have any children younger than the age of 20. On January 23rd the Supreme Court ruled on a suit that was filed in 2016, that ail of the above requirements were constitutional.
[10] According to the US Department of State report, there is no law prohibiting discrimination based on sexual orientation or gender identity, there are no penalties associated with such discrimination either. In February the Tokyo District County dismissed a damage suit against one (1) university which was filed by the parents of a student who fell from the school building in 2015 after his classmates without his consent disclosed that he was gay, and the court declared that the university bore no responsibility for the death. The report also notes that the Ministry of Justice received 33 inquiries about potential human rights violations based on sexual orientation and gender identity in 2018. And LGBT advocacy organizations reported several instances of discrimination, outing, bullying, harassment, and violence. The stigma surrounding LGBT persons remained an impediment to self-reporting of discrimination or abuse.
[11] I have several other country condition documents which have been submitted by counsel which confirm the claimant’s allegations and I’ll read some excerpts of these documents into the record. One document confirms that Japan does not prohibit discrimination explicitly based on sexual orientation or gender identity neither in employment or in other fields. Additionally, Japan does not explicitly protect LGBT individuals against violence, while hate crime and hate speech at least based on sexual orientation is criminalized in a majority of other democratic countries. Japan does not legally recognize same-sex partnerships meaning that same-sex couples are deprived of many of the pecuniary rights to which married couples are entitled. Same-sex partners are not given equal access to joint adoption and medically assisted insemination.
[12] One document confirms that legal LGBT inclusivity in Japan has improved over the past (2) decades but at a modest pace. Since 1882 the Penal Code does not penalize consensual same-sex sexual acts and has mentioned since 2004, transgender individuals are allowed to change their gender marker in the civil registry. However, as an edit above legal gender recognition is conditioned on several discriminatory conditions such as sterilization. In recent years regional human rights courts and other rights bodies have found that these legal requirements of Japan violate international human rights law. In 2013 the United Nations Special Rapporteur noted that transgender people being required to undergo unwanted sterilization surgeries as a prerequisite to enjoying legal recognition of their preferred gender was a human rights violation and called on governments to prohibit the practice.
[13] And so based on the review of the evidence I find that the instances of discrimination, harassment, and violence experienced by many LGBT people in Japan rise to the level of persecution. I find that the conditions imposed on transgender persons in Japan are persecutory. The claimant testified that if she returned to Japan she would feel compelled to hide her identity as she did before which in and of itself is inherently persecutory. And so based on the evidence before me I find that the claimant would face more than a mere possibility of persecution in Japan. I find that the level of discrimination she would face in employment, accessing healthcare and other services as well as the threat of harassment and violence is sufficiently serious to be persecution.
[14] I have considered whether there is state protection available to the claimant and I find that there is not. States are presumed to be capable of protecting their citizens and this is particularly the case in a democratic country such as Japan where human rights are generally respected. The evidence shows there has been some progress made with respect to LGBT rights generally, including one (1) example in an Amnesty International report of a gay couple who had been approved as foster parents in Osaka. However, a review of the overall evidence shows that there is still little to no legal protections particularly for transgender persons in Japan. As I mentioned same-sex marriage is still illegal, there are no laws protecting LGBT persons from discrimination and so employers and healthcare providers are free to discriminate against people with diverse sexual orientation and gender identity with little recrimination. There are no laws protecting against hate speech and hate crime which is a market difference from other similarly democratic countries. And finally the conditions upon which a person is able to legally change their gender are State sanctioned and have been upheld by the Supreme Court. I therefore find that state protection would not be forthcoming to the claimant in this case.
[15] And finally as the conditions facing LGBT people in Japan are the same throughout the country, I find that there is no internal flight alternative available to the claimant in this case.
[16] In conclusion, I find that the claimant is a Convention refugee pursuant to Section 96 of the Act and the Immigration and Refugee Board of Canada therefore accepts her claim.
———- REASONS CONCLUDED ———-