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
DECISION
[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.
———- REASONS CONCLUDED ———-