All Countries South Korea

2021 RLLR 75

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



[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.


[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.


[13]     I find that the claimant is a Convention refugee.



[14]     The claimant’s identity as a citizen of South Korea has been established by her testimony and passport located at Exhibit 1.


[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.


[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.


[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.

All Countries South Korea

2020 RLLR 164

Citation: 2020 RLLR 164
Tribunal: Refugee Protection Division
Date of Decision: January 9, 2020
Panel: Becky Chan
Counsel for the Claimant(s): (no information available)
Country: South Korea
RPD Number: VB9-05340
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000186-000190


[1]       PRESIDING MEMBER:  This is the decision of the Refugee Protection Division in the claim for refugee protection of XXXX XXXX XXXX a citizen of South Korea who claims refugee protection pursuant to Sections 96 and 97 [1] of the Immigration and Refugee Protection Act.

[2]       I have considered the evidence in this case and I am ready to render my decision orally. Written reasons will be sent to you and your Counsel and the written version will be a transcript of what I am saying now.

[3]       I have considered and applied the Chairperson’s Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression. I find that you are a Convention refugee as you have a well-founded fear of persecution in South Korea.

[4]       I will summarize your allegations as follows. You fear persecution in South Korea based on your sexual orientation and your gender identity as a bi-sexual transmasculine person. Your assigned gender at birth was female. You are non-binary and you express yourself as masculine. You are attracted to both males and females.

[5]       You disclosed your sexual orientation to your mother at age XXXXorXXXX XXXX. She attempted to kill you and herself first with a kitchen knife and later by jumping off a building you lived in. Both of your parents have rejected you by reason of your sexual orientation and gender identity.  You spent a great deal of time outside of South Korea while you were growing up. You studied in Thailand and the United States. You completed your university studies in Chicago. You travelled to and remained in South Korea during your breaks from school.

[6]       Beginning in 2012 you started hormone replacement therapy and you have been taking testosterone injections since. You physical appearance changed over time and became more masculine as the hormone replacement therapy progressed. You have had romantic and sexual relationships with males and females. You have been in a common-law relationship with a person who identifies herself as pansexual named XXXX (phonetic) for seven years. You lived together in the United States. She is a citizen of Bhutan.

[7]       You face discrimination in employment in South Korea because you are transgender. You physical appearance does not match your assigned gender on your identity document which states that you are female. You encountered sexual harassment and discrimination at work. You also encountered ridicule from medical staff when you sought health care in South Korea.

[8]       You fear that you will continue to endure such a significant level of discrimination that you will not be able to secure employment, access to health care services and to be able to live openly as a transmasculine bi-sexual in South Korea with a basic level of dignity.  You lived for a number of years in the United States on a student visa. When your student visa expired you came to Canada on XXXX XXXX XXXX 2019 and made a refugee claim in XXXX 2019.

[9]       I find that you have established your identity as a citizen of Korea through copies of two of your passports in Exhibit 1. I find that you have provided a significant amount of evidence to establish your gender identity and sexual orientation as a transmasculine bi-sexual. Your passport indicates that your assigned gender if female. A West Coast medical imagining has provided a copy of your pelvic ultrasound in Exhibit 4 at page 1. This corroborates your assigned gender and the documented West Coast medical imagining further corroborates that you are on testosterone therapy.

[10]     You provided numerous letters from many different people you have known through different stages of your transition corroborating your gender identity and your sexual orientation, in Exhibit 4. Many of the authors of these letters identify themselves as sexual minorities. You have corroborated your relationship with XXXX (phonetic) through her letter and her sister’s letter as well as a lease showing that you lived together in Chicago. These documents are in Exhibit 4.

[11]     You provided evidence of your connections with transgender friends in Vancouver and other places. As well as your involvement in the LGBTQ community in Vancouver you have been involved in Rainbow Refugee in Vancouver and the I Belong group an LGBTQ group that is part of a mosaic, a local organization that supports immigrants.  You have also been involved in the local organization called Pride and Art society which organizes the queer arts festival and other events.     I find that you have established that you are transmasculine bi-sexual.

[12]     I find that the fear you face sorry — I find that your fear of societal discrimination and harassment is corroborated by the country condition documents.      Documents in your disclosure in Exhibits 4 and 5 as well as documents in the National Documentation Package demonstrate that transgender persons face a serious level of discrimination in employment, access to health care and various facets of life in South Korea.

[13]     One of the significant hurdle faced by a transgender persons is Korea is the difficulty in legally changing your assigned gender on your national identity documents. The Response to Information Request on the treatment of transgender people, NDP Item 6.2 as well as the Kaleidoscope report NDP Item 6.2 talk about this. While it is possible to change one’s gender legally the requirements have been described by the report of the Kaleidoscope Human Rights Foundation NDP Item 6.1, as being incredibly complex discriminatory and restrictive.

[14]     In 2006 Supreme Court decision gave transgender persons in South Korea the right to be recognized according to their preferred gender. However the Supreme Court drafted a number of restrictive guidelines on when legal change of gender can occur. A transgender person could be recognized according to their preferred gender if the following conditions exist.    The person is an unmarried Korean citizen over 19 years of age with no minor children; has suffered from continued gender diaspora and has the sense of belongingness to the opposite due to being transsexual; after having undergone psychiatric treatment or hormone therapy still wish to receive surgical treatment and alter his or her physical appearance including external genitalia through sexual reassignment surgery; has become sterile as a result of sexual reassignment surgery with zero or extremely remote possibility that they will return to their former gender; does not show indications that he or she filed the application for the purpose of committing a crime or abating the law; and has parental consent. The Response to Information Request also states that sources say that recognition of gender reassignment is only possible after gender reassignment surgeries and sterilization.

[15]     You have indicated that you do not wish to have surgery due to the invasive nature of the procedure and the many risks associated with the procedure. Another impediment you face in having your gender legally reassigned is that you would not be able to secure parental consent. Neither of your parents would be supportive of your petition for gender reassignment. You have no contact with your father at all. You have contact with your mother but she does not accept your sexual orientation or gender identity. You would not likely be able to change your gender assigned legally in South Korea. The test outlined by the court is highly onerous as it requires you to undergo medical procedures against you will including sexual reassignment surgery. I find that this requirement is in itself persecutory.

[16]     Individuals who cannot obtain a legal change of gender are by extension unable to change their gender on their identity documents. In South Korea all persons are issued a national identity card which is essential for securing employment, shelter and various governmental services. Each persons’ national identity number reveals their date of birth and their gender. The identity number is an all purpose lifetime number. It prevents transgender person who do wish to — it prevents persons who do not wish to reveal their gender identity from using legal documents in most areas of society including the labour market, medical institutions and financial institutions.

[17]     I find that you will face a significant level of stigmas in South Korea as you have in the past if you are identified as a female on your identity documents but you present as a male. You have documented the discrimination you face in securing and maintaining employment in South Korea in your Basis of Claim form and the sources in the country condition documents corroborate that the transgender person experience discrimination related to employment in the similar manner that you have.

[18]     According to the Kaleidoscope Foundation report, the LGBTI community continues to suffer significant degree of stigma, abuse, harassment and discrimination.  Marriage of same sex couples remains illegal. The same report states that transgender persons experience physical harassment and assault including rape.

[19]     I find that your fear of persecution has a nexus to a Convention ground of membership in a particular social group as a transmasculine bi-sexual. I find that the level of discrimination you would face in employment, accessing health care and other services as well as the threat of harassment and violence is sufficiently serious to be persecution. You cannot live openly as a transmasculine bi-sexual in Korea without facing a serious possibility of persecution.

[20]     I find that the presumption of state protection has been rebutted by clear and convincing evidence. There is very little legal recognition and protection of the rights of sexual minorities in general in Korea.

[21]     According to the US Department of State report, NDP Item 2.1, no law specify punishment for persons found to discriminate against lesbians, gay, bi-sexual, transgender or intersex persons or provide remedies to victims of discrimination or violence based on sexual orientation. I note also that the military criminal act criminalizes consensual sex between men in the military with up to two years of imprisonment.

[22]     According to the Kaleidoscope Foundation document there is an absence of any anti- discrimination laws to protect LGBTI persons resulting in a failure to protect against widespread discrimination in a range of areas such as employment and health care. The government has failed to provide access and acceptable processes for individuals to legally choose their gender without discrimination or violation of their human rights. The government does not recognize same sex relationships. There is also lack of protection for same sex couples with respect to domestic violence and a lack of equal protection for sexual minorities with respect to sexual assault.

[23]     I find that state protection is not available to you in South Korea.

[24]     I also find that there is no viable internal flight alternative for you in South Korea. There is no objective evidence that a particular part of South Korea would be more safe for you as a transmasculine bi-sexual. I find that you would face a serious possibility of persecution throughout the country.

[25]     For the foregoing reasons I find that you are a Convention refugee and I therefore accept your claim.