2023 RLLR 242
Citation: 2023 RLLR 242
Tribunal: Refugee Protection Division
Date of Decision: November 20 2023
Panel: Solape Ilori
Counsel for the Claimant(s): Stephanie K Fung
Country: Vietnam
RPD Number: TC3-13853
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A
DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX, a citizen of Vietnam, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”).
[2] Given the nature of this claim, the panel has taken into consideration the Chairperson’s Guideline 9 for Proceedings Before the Immigration and Refugee Board Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.
DETERMINATION
[3] The panel finds that the claimant is a Convention refugee pursuant to section 96 of the Act because he has established, on a balance of probabilities, that he faces a serious possibility of persecution in Vietnam based on his sexual orientation as a gay man.
ALLEGATIONS
[4] The claimant’s allegations are set out in his Basis of Claim Form.[1] In summary, he fears persecution in Vietnam should he return there and live openly as a gay man.
ANALYSIS
Identity
[5] The panel finds that the claimant has established his identity on a balance of probabilities by the copy of his Vietnamese passport on file.[2]
Nexus
[6] The panel finds that there is a nexus between the claimant’s allegations and a convention ground, namely membership in a particular social group, based on his sexual orientation as a gay man. The panel has therefore assessed his claim under section 96 of the Act.
Credibility
[7] When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their veracity. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.
[8] The panel noted credibility concerns with certain areas of the claimant’s testimony, including inconsistencies between his testimony and his refugee application summary, the nature of his immigration status when he returned to Canada from Vietnam, as well as evolving testimony regarding when he and his partner began to live together. However, notwithstanding these credibility concerns, the panel ultimately finds that the claimant has provided sufficient credible evidence to establish the core allegation in his claim, which is that he is a gay man who fears being open about his sexual orientation in Vietnam.
[9] The claimant described himself as someone, who discovered in Grade 1, that he does not like ladies and he felt isolated because people mocked him and made several gestures that hurt his feelings and made him self conscious.
[10] He also testified that his family have been pressuring him to marry a female since he was 20 years old and they forced him to see a XXXX to change his sexual orientation. He testified that he saw the XXXX six to seven times or more and during the XXXX, he sat still and did not say anything, as he was scared. The XXXX told him that to marry the same gender is not correct and that he (the claimant) had to “fix it” and he suggested that the claimant needed to take XXXX XXXX and engage in more sports and exercises.
[11] The claimant was able to describe in sufficient detail, his relationship with his partner in Canada whom he met at the XXXX XXXX XXXX in Toronto in XXXX 2018. He testified that they became a couple at the XXXX of 2022 and he was able to describe what he likes about his partner, how often they spent time together and the type of activities they enjoy engaging in. His testimony was corroborated by his partner’s testimony at the hearing, which the panel found credible.
[12] The panel notes that the claimant came to Canada for the first time in XXXX 2017 on a student visa, but he did not make a claim for refugee protection until after his most recent return to Canada in XXXX 2021. The panel also notes that the claimant returned to Vietnam in 2018 and 2019 and he remained there until 2021.
[13] When asked for about his delay in claiming and reavailment, the claimant explained that he did not know about the refugee claim process until his partner informed him and that he returned to Vietnam in 2018 because his mother was pregnant and he returned in 2019 because his father was ill. His intention was to remain in Vietnam for one month but he could not return to Canada until 2021 due to the COVID-19 pandemic.
[14] In assessing the claimant’s delay in claiming, the panel has taken into consideration his level of education (XXXX XXXX) and language barrier, and it finds his explanation to be reasonable, and that his delay in claiming does not undermine his subjective fear. In addition, given that the claimant was not at risk of removal prior to making his refugee claim, the panel does not draw a negative credibility inference with respect to his delay in claiming.
[15] The panel also finds the claimant’s explanation for returning to Vietnam to be reasonable and that his visits to Vietnam do not undermine his subjective fear, as his fear of persecution in Vietnam is based on if he were lo live there as an openly gay man.
[16] Based on all of the above, the panel finds that the claimant has provided sufficient credible evidence to establish on a balance of probabilities that he is a gay man as he has alleged and he has also established his subjective fear of persecution in Vietnam.
Objective Basis
[17] The panel finds that there is an objective basis for the claimant’s fear of persecution in Vietnam. According to the National Documentation Package (NDP), LGBTI rights in Vietnam are mixed. Sex between adults of the same sex is legal and LGBTI CSOs are relatively free in their operation. However, despite relative freedom from official interference, social stigma, and discrimination against LGBTI individuals is common.[3]
[18] The NDP further indicates that family pressure is strong, and many families believe that LGBTI identity can be ‘cured’ and LGBTI people inside and outside Vietnam reported being afraid to go home due to the risk of violence or family pressure to marry.[4] This is consistent with the claimant’s testimony that his family forced him to see a XXXX and pressured him into getting married.
[19] The NDP also indicates that Vietnamese law does not legally protect against discrimination on the grounds of sexual orientation or gender identity”, societal discrimination” of these communities “remains a problem” and LGBTIQ individuals are “socially marginalized.[5] In addition, sexual and gender minority children and young adults encounter stigma and discrimination at home and at school.[6]
[20] In addition, sources in the NDP indicate that LGBTI people report discrimination as a part of their everyday lives in areas such as healthcare, education, and employment, but especially in families. Men or women who are seen as presenting in a way not consistent with traditional gender roles, and especially trans people, face verbal and physical abuse and most LGBTI people, regardless of their wealth and identity, still hide their LGBTI identity in order to avoid discrimination.[7] Also, the law “does not prohibit discrimination against LGBTQI+ persons in housing, employment, nationality laws, or access to government services.[8]
[21] Based on the totality of the evidence before it, the panel finds that the claimant’s subjective fear of persecution in Vietnam because of his sexual orientation as a gay man is objectively well founded.
State Protection
[22] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown. The claimant bears the burden of rebutting the presumption that state protection exists by adducing clear and convincing evidence.
[23] The panel finds that there is clear and convincing evidence in the NDP to rebut the presumption of state protection and establish on a balance of probabilities that adequate and operationally effective state protection is not available for the claimant within the circumstances of his claim.
[24] According to the NDP, although sexual and gender minorities in Hanoi and Ho Chi Minh City for example, should be able to receive protection from the state in theory, in practice, state protection of sexual and gender minorities in Hanoi is “poor”.. In addition, there have been “numerous examples” of sexual and gender minorities in Hanoi and Ho Chi Minh City “being subjected to intimidation, harassment, and abuse by the police”.[9]
[25] Given the objective evidence that the police are complicit in the persecution of sexual minorities, the panel finds on a balance of probabilities that the presumption of state protection has been rebutted and that there is no adequate state protection available to the claimant in Vietnam.
Internal Flight Alternative (IFA)
[26] The test for an IFA was articulated by the Federal Court of Appeal in Rasaratnam v Canada.[10] For a claim to succeed, a claimant must satisfy the panel, on a balance of probabilities, that:
a) the claimant would face a serious possibility of persecution, or would more likely than not be subjected to a risk to his life, a risk of cruel and unusual treatment or punishment, or a danger of torture in the proposed IFA; or
b) it is objectively unreasonable or unduly harsh, in all the circumstances, to ask the claimant to relocate to the proposed IFA.
[27] The panel has considered whether a viable internal flight alternative exists for the claimant in Vietnam and it finds that the IFA test fails on the second prong. Under this prong, the panel finds that it is not objectively reasonable, in all circumstances, including those particular to the claimant as a gay man to seek refuge anywhere in the country because the law in Vietnam “does not prohibit discrimination against LGBTQI+ persons in housing, employment, or access to government services.
[28] Therefore, the panel finds on a balance of probabilities that there is no viable internal flight alternative for the claimant in Vietnam.
CONCLUSION
[29] Based on the totality of the evidence before it, the panel finds that the claimant is a convention refugee pursuant to section 96 of the Act because he faces a serious possibility of persecution in Vietnam. Accordingly, his claim is accepted.
——— REASONS CONCLUDED ———
[1] Exhibit 2
[2] Exhibit 1
[3] Exhibit 3: National Documentation Package, Viet Nam, 31 July 2023, tab 1.4: DFAT Country Information Report: Vietnam. Australia. Department of Foreign Affairs and Trade. 11 January 2022.
[4] Ibid
[5] Exhibit 3: National Documentation Package, Viet Nam, 31 July 2023, tab 6.6: Treatment of individuals based on their sexual orientation, gender identity and expression, and sex characteristics (SOGIESC) by society and authorities, including access to education, employment, housing, and health care, particularly in Hanoi and … Immigration and Refugee Board of Canada. 30 June 2022. VNM201080.E.
[6] Ibid
[7] Ibid
[8] Ibid
[9] Ibid
[10] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).