2023 RLLR 256

Citation: 2023 RLLR 256
Tribunal: Refugee Protection Division
Date of Decision: November 1, 2023
Panel: Christine Price
Counsel for the Claimant(s): N/A
Country: Hong Kong
RPD Number: VC3-04211
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A

DECISION 

[1]                   MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX, spelled XXXX XXXX XXXX XXXX XXXX XXXX XXXX, middle name XXXX, XXXX XXXX XXXX XXXX XXXX, last name XXXX, XXXX XXXX XXXX, as a citizen of Hong Kong, China, who is claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act. In reaching this decision, I have considered Chairperson’s Guidelines for gender considerations in proceedings before the Immigration and Refugee Board. 

ALLEGATIONS

[2]                   The claimant’s allegations are fully contained in her Basis of Claim form. In summary, the claimant participated in several anti-government rallies in Hong Kong in 2018. On XXXX XXXX, 2020, the claimant demonstrated against the national security law in Hong Kong and was detained by police for XXXX XXXX XXXX XXXX XXXX. Authorities took photographs of her, demanded her identification documents. This caused her to feel afraid, so she stopped attending protests but continue to speak against the government online. A friend who had also participated in the demonstrations encouraged her to leave the country, which after some consideration she did in XXXX of 2021. Additionally, she has supported organizations like the new Chinese Federal, State and Rule of Law Foundation, both of which call for democracy in Hong Kong and are against the Communist Party and its influence. She was hopeful that the conditions in Hong Kong would improve, and she would be able to return there. Instead, they have gotten worse as she learned of the disappearance of many people with their anti-government views while she was overseas, this caused her further fear, and she decided to make a refugee claim in Canada. 

DETERMINATION

[3]                   I find the claimant to be a Convention refugee as she has established a serious possibility of persecution.

ANALYSIS

Identity

[4]                   I find the claimant’s personal national identities as a citizen of Hong Kong, of the Hong Kong Special Administrative Region, HKSAR is established on a balance of probabilities by a copy of her passport that is on file. 

Nexus

[5]                   For a claimant to be considered Convention refugee, they must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. The claimant has established a nexus to the Convention ground of political opinion because of her opposition to the current government of Hong Kong. The claimant has alleged harms amounting to persecution due to her opposition to the government, which gives her a nexus to the Convention ground of political opinion. And for this reason, I have decided her claim under section 96. 

Credibility

[6]                   When a claimant swears to the truth of certain allegations, this creates the presumption that those allegations are true, unless there is a reason to doubt their truthfulness, however, this presumption does not apply to inferences which are conclusions drawn from facts or speculation for which there is no evidentiary basis. The claimant testified in a spontaneous and detailed manner. There were no omissions or discrepancies that were not readily explained. The claimant provided several photos of her in support of her allegations, primarily of the demonstrations she attended, including one (1) with herself in the photos where she is wearing a visor that calls the leader of Hong Kong government to step down. She testified that she had had other photos, but her phone had been damaged, this was all she could provide. She also provided copies of her travel itinerary to the XXXX XXXX XXXX. I have no reason to doubt the authenticity of the documents, nor the veracity of the photographs that have been submitted as evidence. I find these items to be relevant and probative and assign them high weight. 

[7]                   I note that before the claimant came to Canada, she spent time in the XXXX XXXX, specifically XXXX, XXXX, and XXXX, but did not claim in either of those countries. When asked about this at the hearing, the claimant testified she did not think about making a claim in those countries as she hoped the conditions in Hong Kong would improve and she would be able to return. It was only while the XXXX that she learned from family, friends and the news that people who were against the Hong Kong and Chinese governments were disappearing in Hong Kong, that she specifically considered making a refugee claim for her own safety. She had heard that Canada was accepting people from Hong Kong who came here. She continues to fear returning to Hong Kong as even since leaving countries just continue to share her views on social media and still believes it is important to get rid of the current government and the Communist Party’s control in both Hong Kong and China, all of which would make her a target for the government. I find the claimant has credibly established her subjective fear of someone who faces a serious possibility of persecution in Hong Kong, which could include arrest detention because of her pro-democracy activities in Hong Kong specifically, but also well, outside of the country, for which she would face the possibility again of arrest, detention, physical and psychological harm. 

Well-Founded Fear of Persecution

[8]                   A Convention refugee must demonstrate they have a well-founded fear of persecution, which includes both the subjective and objective basis for the fear. I have accepted as fact that the claimant has already been detained by the police in Hong Kong and for that I find that she has established a subjective fear. The claimant alleges that she were to return to Hong Kong, she would face detention and physical violence from the Hong Kong authorities due to her activities and her participation previously in the protests.

[9]                   The objective evidence supports the claimant’s allegations that the Chinese government engages in harassment, assault, detention of pro-democracy protesters in Hong Kong. Sources report that the police have used excessive force against protesters, including tear gas, rubber bullets and at least one (1) protester was shot with live ammunition. Amnesty International has found that there is an alarming pattern of the Hong Kong police forces deploying reckless and indiscriminate tactics, including while arresting people at protests, as well as exclusive evidence of torture and other ill treatment in detention. The Hong Kong authorities have arrested over 10,000 people for the 2019 protest, 2500 of whom have been prosecuted, and according to police, 960 of them will face legal consequences, including jail time. Those particular Items come out of sections 4.4 and 2.14 of the National Documentation Package. The evidence further indicates the national security law are dangerously vague and broad piece of legislation that provides sweeping powers to curtail that which the Communist Party of China perceives as separatism, subversion, terrorism, and collusion with foreign countries concerning Hong Kong. The law introduces severe penalties, including life in prison, and so far, has been used against both low profile pro-democracy protesters, including a 15-year-old girl who is waving a Hong Kong independence flag and high-profile activists such as Jimmy Lai, an activist who owns an anti-government newspaper, and that specifically comes out of Item 2.4 — sorry, 4.4. 

[10]                   According to Human Rights Watch, the imposition of the national security law has had devastating consequences for human rights in Hong Kong. Human Rights Watch finds that although Hong Kong was once viewed as Asia’s protest capital, the authorities now routinely prohibit peaceful protest. Basic civil and political rights, including freedom of expression and peaceful assembly are being erased. Sources indicate authorities rely on the national security law to suppress protests, arrest protesters, detain political opponents and crackdown on pro-democracy advocates, and that comes out of Item 2.7 of the NDP. I have accepted as fact that the claimant is a political activist. She has participated in pro-democracy protests and before this has been detained. Given her particular circumstances and the objective evidence I have listed just previously, I find the claimant’s profile as a pro-democracy activist causes her to face a serious possibility of being arrested, charged, and detained under the national security law should she be returned to Hong Kong. I further find the national security law enforcement infringed on this claimant’s human rights by criminalizing peaceful speech and activities, and that her detention and prosecution under the law would amount to persecution for her political opinions. So based on the above, based on what I just said, I find the claimant faces a serious possibility of persecution in Hong Kong due to her political activities. 

State Protection

[11]                   In all refugee claims, the state is presumed to be capable of protecting their citizens unless there is clear and convincing evidence to the contrary. Given that the state is the agent of persecution, it appears objectively unreasonable for the claimant to seek the protection of the state. Consequently, the presumption of state production has been rebutted. 

Internal Flight Alternative

[12]                   With respect to an internal flight alternative, I do not find that the claimant could live safely in other parts of China or the Hong Kong Special Administrative Region as the state has effective control of all the territory. I find the claimant would face a serious possibility of persecution throughout the country and accordingly I find there is no viable internal flight alternative for her. 

CONCLUSION

[13]                   Having considered all the evidence, I find the claimant is a Convention refugee as set out in section 96 of the Act, and her claim is therefore accepted. 

——— REASONS CONCLUDED ———