Citation: 2021 RLLR 75
Tribunal: Refugee Protection Division
Date of Decision: November 19, 2021
Panel: David Jones
Counsel for the Claimant(s): Minhee Jo
Country: South Korea
RPD Number: VC1-05121
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada in the claim of XXXX XXXX XXXX XXXX a citizen of the Republic of Korea, also known as South Korea, who is seeking refugee protection pursuant to s. 96 and s. 97(1) of the Immigration and Refugee Protection Act.
[2] I have reviewed and applied both the Chairperson’s Guideline on Women Refugee Claimants Fearing Gender-Related Persecution and the Chairperson’s Guideline on Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.
ALLEGATIONS
[3] The claimant fears persecution due to her sexual orientation if she were to return to South Korea. The claimant also fears further abuse from her uncle.
[4] Details of the claimant’s allegations can be found in her Basis of Claim form. The following is a summary of her allegations and testimony.
[5] The claimant was raised by a single mother in Korea and as a result faced harassment in her childhood.
[6] The claimant was also sexually abused by her uncle when she was a minor in Korea.
[7] The claimant came to Canada in 1996 and studied in in Toronto from 1996 to 1999.
[8] On XXXX XXXX, 2003, the claimant returned to Canada as a visitor.
[9] The claimant’s last valid TRV expired on November 15, 2004, and she remained in Canada.
[10] The claimant described taking a long time to figure out her sexual orientation and how she has tried to escape, conceal, and hide herself from the world. The claimant described not having any relationships with women but that she has gone on a couple of dates with women. The claimant identified her sexual orientation as bisexual.
[11] The claimant has suffered from mental health issues, and she is currently being treated for XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The claimant has attempted suicide on a at least two occasions in the past.
[12] In December 2019, the claimant applied for refugee protection.
DETERMINATION
[13] I find that the claimant is a Convention refugee.
ANALYSIS
Identity
[14] The claimant’s identity as a citizen of South Korea has been established by her testimony and passport located at Exhibit 1.
Nexus
[15] The allegations support a nexus to a Convention ground for the claimant based on her particular social group, namely her sexual orientation as a bisexual.
[16] The allegations and country condition documents support that the claimant’s risks arise from the intersection between her sexual orientation, her gender, and her mental health issues.
Credibility
[17] I find that the claimant is a credible witness.
[18] In making that finding I am relying on the principle that a claimant who affirms to tell the truth creates a presumption of truthfulness unless there are reasons to doubt their truthfulness.
[19] In this regard, the claimant testified in a consistent and straightforward manner that was consistent with her basis of claim form and supporting documents. The claimant was able to speak about her fears if she returned to Korea due to her sexual orientation. The claimant described how she is coming to terms with her sexual orientation and how does not like men, how she only dated one man and that was 22 years ago, and how she feels comfortable with women. The claimant testified that she has been introduced to the 519 and has been volunteering with the group since 2020. The claimant also described her ongoing fears from her uncle who abused her as a child and who is still in contact with the claimant’s mother in Korea. The claimant described not be open about her sexual orientation with her mother. Further, the claimant described her previous suicide attempts as well as an incident when she was a child and her mother attempted to kill herself and the claimant. The claimant also spoke positively about her improvements from treatment and medication she now receiving. There were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence.
[20] The claimant also provided documents to support her claim found at exhibit 5. For example, the claimant provided documents including her membership card and volunteer information supporting her involvement with the 519. The claimant also provided approximately 60 pages of medical reports from the XXXX XXXX XXXX XXXX XXXX XXXX in Toronto supporting the ongoing treatment the claimant has been receiving for her mental health. The reports also indicate that prior to the claimant’s refugee application the claimant described herself as bi-sexual to her mental health professionals. I have no reason to doubt the genuineness of the documents submitted by the claimant and since they relate to the claimant’s sexual orientation and her difficulties expressing her identity and the predate the claimant’s application for refugee protection, I place significant weight on these documents to support the allegations and overall claim.
[21] I find that the claimant has a subjective fear of returning to Korea even though she last arrived in Canada in 2003, she was without status in Canada since November 2004, and did not apply for refugee protection until December 2019. The claimant explained that during that time that she did not have any knowledge of applying for refugee protection and she was afraid of being forced to return to Korea. The claimant explained that she had not met many people in Canada. The claimant also said she decided she could not live any longer without saying that she wanted to have a relationship with a woman and that she needed to overcome her fears. The claimant testified that she never received treatment for her mental health issues before 2019. I do not make any negative credibility findings against the claimant for her lengthy delay. When making that finding, I am taking into consideration that the claimant has suffered trauma throughout her life. The claimant also suffers from significant mental health issues and that has led to her being socially isolated for most of her time in Canada.
Objective Basis
[22] The objective evidence supports the claimant’s fear of returning to Korea.
[23] As background, the US Department of State Report at item 2.1 located in the National Documentation Package for the Republic of Korea located at exhibit 3, describes the Republic of Korea (South Korea) as a constitutional democracy governed by a president and a unicameral legislature. The report lists few significant human rights issues in the country, but it does highlight corruption and laws criminalizing consensual same-sex sexual conduct between adults in the military. The report also indicates that many members of the LGBTI community keep their sexual orientation or gender identity secret due to fear of stigmatization.1
[24] The 2021 Human Rights Watch report at item 2.2 opens by stating that: “the South Korean government, a democracy, largely respects most political, civil, and socio-economic rights but significant human rights concerns remain. Discrimination against women is pervasive, as is discrimination against lesbian, gay, bisexual, and transgender (LGBT) people, and racial and ethnic minorities.” The report goes on to indicate that while the “LGBT rights movement in South Korean grew but hostility and severe discrimination persisted.” The report also described that discrimination against women is widespread and how there is a 35% wage gap between men and women.2
[25] A report from Rainbow Action against Sexual Minority Discrimination found at item 6.4 indicates that LGBTI persons face discrimination and harassment in employment and education. The report also describes that the police in Korea do not aggregate hate crimes based on sexual orientation so only few cases can be known through the media. The report provides examples including an example of women being murdered because of her lesbian relationship. Further, the report states with respect to violence against LGBTI persons that “police investigators said the perpetrators committed crimes because they thought that victims are not likely to report to the police.”3
[26] Finally, an Amnesty International report at item 6.3, while focused on LGBTI people in South Korea’s Military, states that:
“Interviewees stated that LGBTI people in South Korea face pervasive discrimination and many hide their sexual orientation and/or gender identity from their families. Same-sex couples are not recognized under the law or by the judiciary. “Conversion therapy”, which claims to change a person’s sexual orientation, based upon the incorrect assumption that homosexuality is a mental disorder requiring treatment, is common according to one interviewee who experienced it.
Though criminalization is only applicable within the military and therefore to a small segment of society, the fact that approximately half of the population goes through compulsory military service early in life means that criminalization has a significant impact. Criminalization creates an environment where discrimination is tolerated, and even encouraged, based solely on who someone is. Many former and current soldiers consider this to be toxic.
Homophobic and transphobic individuals can view this law as tacit permission to target LGBTI people inside and outside the military. Discrimination and harassment can and does extend to South Korean organizations and events supporting LGBTI rights.”4
[27] With respect to the claimant’s mental health issues, a UN report found at item 2.9 describes concerns about “large number of individuals in mental health facilities were involuntarily hospitalized, that the grounds for involuntary hospitalization were broad and included circumstances in which the detained persons did not present a threat to themselves or others, and that procedural safeguards against involuntary hospitalization were inadequate.”5
[28] A 2020 BTI Country Report at item 1.6 states that “Mental health issues are not currently well addressed in Korea, as can be seen by the large numbers of suicides; the country has the second-highest suicide rate in the OECD.” The report indicates that the social welfare system is far below OECD standards. In addition, the report also states that discrimination remains a major problem in South Korea, particularly for women and LGBTI people. As an example, for women the report notes that South Korea has the largest gender pay gap in the OECD and was ranked 115 out of 149 countries evaluated in the world.6
[29] The claimant also provided country condition documents to support her claim. For example, at exhibit 5 is a report from the Lesbian Counseling Center in South Korea that states, when discussing the invisibility of sexual minority women in South Korea, that:
“However, this serious invisibility has not worked as protection for sexual minority women. Sexual minority women of ROK have been tormented by multilayered discrimination and violence under sexism, homophobia and transphobia which have intensified one another. Moreover, this tendency has grown stronger as society in general has become more used to assuming diverse types of gender non-conforming women simply as lesbians (or just as perverts). Even regardless of self gender identification or expression (for example, even cisgendered women not looking a bit masculine), people have been treated as erratic and deviant if they do not get married to opposite gender after certain age and/or are being involved in special relationship with person of their own gender. In this way, we can see the entanglement of issues of discrimination against women who go against the grain and the ones against lesbians.”7
Well-Founded Fear of Persecution
[30] I find that the claimant has established that she faces a serious possibility of persecution from the cumulative effect of the risks and discrimination she would face in South Korea based on her gender, sexual orientation, and her mental illness.
[31] It is well established that cumulative discrimination and harassment can constitute persecution. When determining whether cumulative discrimination and harassment constitutes persecution, it is necessary to evaluate the claimant’s personal circumstances and vulnerabilities including age, health, and finances.
[32] In this case, the claimant has only basic employment experience. The claimant is currently working part-time in a XXXX XXXX XXXX The claimant testified her previous employment has included as a XXXX and a XXXX. The claimant testified she has no family or friends to support her in Korea. Further, the claimant has described how her family has been a source of trauma both due to the sexual abuse from her uncle, from her mother who attempted to kill her in a suicide attempt, and from society when growing up because she came from a single parent household. The claimant also has numerous well documented mental health issues. While the claimant’s health is improving with the treatment she has been receiving, the claimant has attempted suicide previously and testified that due to the poor treatment of mental health issues in South Korea and her lack of finances, she believes she would be unable continue treatment if she were to return.
[33] The claimant’s personal circumstances, and her lack of support, makes her particularly vulnerable to the cumulative risks, discrimination, and harassment described in the objective evidence. As such, I find that the claimant has established a well-found fear of persecution were she to return to South Korea.
State Protection
[34] It is presumed that states can protect their citizens. This presumption can be rebutted with clear and convincing evidence of the state’s inability to protect its citizens.
[35] The issue is whether the South Korean authorities can reasonably be expected to provide the claimant with adequate protection if she were to return to South Korea. The documentary evidence reviewed above provides a somewhat mixed view when it comes to state protection in South Korea.
[36] It does show that South Korea is a democratic country with substantially effective police, civil authorities, an independent judiciary, and human rights organizations. However, it also highlights, for example in a Kaleidoscope Australia Human Rights Foundation report found at item 6.1, that while the National Human Rights Commission Act prevents discrimination against based on their sexual orientation that there are no specific laws in Korea punishing such discrimination nor laws providing remedy to victims of discrimination or violence against LGBTI persons. The report notes that discrimination against LGBTI persons exist in laws with respect to the military, adoption, censorship, and there is no same-sex marriage in the country.8
[37] The country conditions noted above indicate that the environment in South Korea is one where discrimination against LGTBI persons and women is tolerated and when considering all the cumulative risks the claimant faces, the objective evidence presents clear and convincing evidence that rebuts the presumption that the South Korean authorities would be able to provide adequate protection to this claimant in the future. As such, I find that there is no state protection available for the claimant in South Korea.
Internal Flight Alternative
[38] I have also considered whether there would be an internal flight alternative available to the claimant.
[39] The claimant testified that her risks based on her sexual orientation would be the same anywhere in South Korea.
[40] The objective evidence, as noted previously, highlight how the claimant faces a serious possibility of persecution based on her intersection as a woman, a member of a sexual minority, and a person with mental health issues. I find on a balance of probabilities that while there may be parts of South Korea, where one of those factors may have a lesser risk, the evidence as a whole indicates, including the claimant’s own experiences, that the claimant would still face a serious possibility persecution anywhere in South Korea.
[41] I find that there are no viable internal flight alternatives for the claimant in South Korea as there is insufficient evidence that areas exist in the country where conditions for the claimant in her particular circumstances would be significantly improved.
CONCLUSION
[42] For the foregoing reasons I determine that the claimant is a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act and the Board therefore accepts the claim.
(signed) David Jones
December 10, 2021
__________________________
[1] National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 2.1: Republic of Korea. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021.
2 National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 2.2: South Korea. World Report 2021: Events of 2020. Human Rights Watch. January 2021.
3 National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 6.4: Human Rights Violations against Lesbian, Bisexual Women, Transgender and Intersex People on the Basis of Sexual Orientation, Gender Identity, and HIV Status in the Republic of Korea. Rainbow Action against Sexual Minority Discrimination. February 2018.
4 National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 6.3: Serving in Silence: LGBTI People in South Korea’s Military. Amnesty International. 11 July 2019. ASA 25/0529/2019.
5 National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 2.9: Compilation on the Republic of Korea. Office of the United Nations High Commissioner for Human Rights. 31 August 2017. A/HRC/WG.6/28/KOR/2.
6 National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 1.6: BTI 2020 Country Report — South Korea. Bertelsmann Stiftung. 2020.
7 Exhibit 5 at page 209.
8 National Documentation Package, Korea, Republic of (South Korea), 30 April 2021, tab 6.1: Submission to the UN Universal Periodic Review regarding the protection of the rights of LGBTI persons in the Republic of Korea. Kaleidoscope Australia Human Rights Foundation. March 2017.