2023 RLLR 156
Citation: 2023 RLLR 156
Tribunal: Refugee Protection Division
Date of Decision: June 2, 2023
Panel: Arjan Sethi
Counsel for the Claimant(s): N/A
Country: China
RPD Number: TC2-38769
Associated RPD Number(s): N/A
ATIP Number: A-2024-00894
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision in the claim of XXXX XXXX XXXX, a citizen of China, who seeks refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act. This decision is being rendered from the bench.
[2] I find XXXX XXXX XXXX is a Convention refugee because he faces a serious possibility of persecution due to his sexual orientation.
[3] According to your Basis of Claim form, you fear persecution at the hands of the — you fear persecution due to your sexual orientation as a gay man. Your narrative indicates that you were working as an XXXX XXXX XXXX XXXX at the XXXX XXXX XXXX. Your narrative indicates that your ex-boyfriend came to your place of work and informed your colleagues of your sexual orientation. Your narrative indicates that you lost employment and were removed from your home due to your sexual orientation. You fear that if you were to return to China, you would face persecution due to your sexual orientation and you fear that you would not be able to live freely in China.
[4] Your — personal and national identity of the claimant as a national of China has been established, on a balance of probabilities, by a copy of his passport, which is found in Exhibit 1.
[5] I find there is a nexus to the Convention ground, namely, based on his membership in a particular social group as a gay man. Accordingly, this claim is being assessed under section 96.
[6] I find that you provided credible and spontaneous testimony. You were able to clearly discuss your sexual orientation and the persecution you had faced in China as a result of your sexual orientation. I note there were no material inconsistencies, omissions or contradictions between your testimony and other evidence in the claim that were not reasonably explained.
[7] The claimant testified that he likes men and he explained that having this sexual orientation is viewed as morally wrong in China. He testified that he kept his sexual orientation hidden. The claimant was asked how long he had been hiding his sexual orientation. He explained that since he was small, he has been hiding his sexual orientation. He explained that since he was young, he has always liked to be with boys and that when he hit puberty, he was sure that he did not like girls. He shared that he could not tell anybody and hid this from anyone — everyone for more than a decade. He testified that he entered a relationship with his ex-boyfriend some time in 2011 when he was still a student. He testified that they were from the same village and went to the same school.
[8] I found the claimant’s testimony straightforward, spontaneous and credible. I find the claimant is homosexual and hid his sexual orientation out of fear of being persecuted.
[9] I find that the claimant was in an abusive relationship with his ex-boyfriend. I find that his ex-boyfriend around went to his place of employment, informed his colleagues of the claimant’s sexual orientation. The claimant testified that this was the first — that this was his first relationship, and his ex-boyfriend was the first person he had been with. He testified that he eventually discovered that his ex-boyfriend was very abusive. He explained that if they got into a disagreement, his ex-boyfriend would beat him and cut him with knives. He testified that he liked his ex-boyfriend a lot and had thought that if he was nice to him, his ex-boyfriend would treat him better. He explained that this did not happen, but the abuse repeated many times.
[10] The claimant was asked what led his ex-boyfriend to go to his place of employment. The claimant explained that after he finished school, he got himself a job and reflected that he wanted to have a peaceful life. He testified that he informed his ex-boyfriend that he wanted to separate and that they were always fighting. He testified that his ex-boyfriend threatened to kill himself if they broke up. The claimant testified that his ex-boyfriend knew he did not want anyone to know about his sexual orientation, so he would leverage this to threaten him. He testified that his ex-boyfriend went to his place of employment and informed his colleagues.
[11] I find that you lost your job at the XXXX XXXX XXXX as an XXXX XXXX XXXX XXXX and were kicked out of your home by your family due to your sexual orientation. You testified that your position as an XXXX XXXX XXXX XXXX is a very good job and that you worked very hard in school and work to receive this job. You testified that once your colleagues found out about your sexual orientation, you felt that all your hard work had gone to waste. You also testified that you wanted to kill yourself at this time. You explained that you were removed from your position as an XXXX at the XXXX and were given to the back — you were put in the back and were given no real work. You testified that you were not welcome in the environment and they were trying to force you out by always pointing the finger to you.
[12] Concerning your family relations, you testified that once your parents found out they were very angry, that they thought that what you did was completely disgraceful and then they beat you. You testified that you were disowned and told to never return home.
[13] I note the claimant is self-represented and the Panel has not received any evidence from him. I note the claimant has been homeless in Canada for many months. I note the Panel does not draw any negative credibility inferences from the claimant not adducing evidence.
[14] The claimant has established his experiences of being fired from his job, being assaulted by — assaulted from — by his family members, having to conceal his relationship and having to conceal his sexual orientation to feel safe. I find that the claimant has established a subjective fear of persecution in China due to his sexual orientation as a gay man.
[15] To be considered persecution, the mistreatment suffered or anticipated must be serious. To determine whether a particular mistreatment would qualify as serious, the Panel must examine what interest of the claimant might be harmed or compromised to constitute a sustained or systemic violation of basic human rights, demonstrative of a failure of state protection. Guideline 9 on claims involving sexual orientation and gender identity and expression address the concept of cumulative discrimination rising to the level of persecution.
[16] Workplace discrimination based on sexual orientation and gender identity is common and is not prohibited by any law or national regulation in China. As such, LGBT individuals suffer discrimination in the workplace or find challenges securing a job. Many choose not to be open about their sexual orientation or gender identity like the claimant. A survey of 2161 LGBT Chinese people conducted in 2013 showed that 47.62 percent chose to remain completely secretive about their sexual orientation in the workplace. Overall, public opinion regarding sexual orientation and gender identity remains predominantly negative today. In 2013, a survey of 3491 Chinese people from cities throughout the country displayed similar results, with 68.5 percent of participants indicating that they could not accept homosexuality.
[17] Familial obligations and cultural expectations weigh heavily when deciding to disclose one’s sexual orientation in China. Lack of proper legal protections lead to the majority of discrimination cases to go underreported and unnoticed. This relates especially to cases of extortion and violence towards members of the LGBT community and between intimate sexual partners, as well as from public authorities, such as the security department. Victims of violence and extortion often do not report these cases to police for fear of being further victimized. LGBT individuals reported incidents of violence, including domestic violence. However, they encountered difficulties in seeking legal redress. Since regulations on domestic violence do not include recognition of same-sex relations, accessing redress was further limited by societal discrimination and traditional norms.
[18] I note again, that the claimant was in an abusive relationship where he could not go to seek protection or go to the authorities — the Chinese authorities. While anti-discrimination regulations exist in various — in a variety of forms, including in the Constitution, laws on the protection of women, laws on the protection of the disabled and laws on the protection of minors and seniors. None of these laws explicitly define sexual orientation and gender identity as a specific basis of discrimination. This impacts the ability of the claimant to be a gay man in public.
[19] The documentary evidence also reveals that same-sex unions or marriages is non-existent and remains taboo. The Chinese marriage law defines marriage to be a union only between a man and a woman. Further, adoption by same-sex couples is also prohibited. I note the claimant has lost his employment, was physically assaulted by his family members and also was unable to contact authorities when facing abuse from his ex-boyfriend as he wanted to keep his sexual orientation hidden.
[20] The Panel finds that the discrimination and restrictions faced by the claimant upon his return to China, as an openly gay man, communally amounts to persecution. The objective evidence supports the claimant’s subjective fear of persecution. I find the claimant has made out a well-founded fear of persecution based on his sexual orientation as a gay man.
[21] Concerning state protection and based on the foregoing, I find that, on a balance of probabilities, that the adequate — that adequate state protection would not be available to the claimant given his particular circumstances. I find that the state is unable and unwilling to provide protection and it would be objectively unreasonable for him to seek protection for harassment and discrimination in relation to his sexual orientation. As per the analysis I noted above, I find it objectively unreasonable for him to seek protection of the state and find that there is clear and convincing evidence that there is no adequate state protection available to him.
[22] With respect to the internal flight alternative, the Panel finds that the documentary evidence supports the Panel’s finding that there is no viable IFA available to the claimant. Considering the evidence the Panel previously relied upon, widespread discrimination and homophobic attitudes and issues pertaining to discrimination amounting to persecution across China, the Panel finds there is no viable IFA anywhere in the country.
[23] Therefore, based on the foregoing analysis and considering all the evidence that I have before me, I find that the claimant faces a serious possibility of persecution due to his sexual orientation as a gay man. He is, therefore, a Convention refugee. I accept your claim.
——— REASONS CONCLUDED ———