2023 RLLR 90

Citation: 2023 RLLR 90
Tribunal: Refugee Protection Division
Date of Decision: November 7, 2023
Panel: Lorna Farmer
Counsel for the Claimant(s): Nalini Reddy, Carolina Fridman
Country: Hong Kong Special Administrative Region
RPD Number: VC3-07423
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, as a citizen of Hong Kong Special Administrative Region who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. In rendering this decision, I have considered and applied the Chairperson’s Guidelines on proceedings before the IRB involving sexual orientation, gender identity, and expression, and sex characteristics that offers guidance to promote greater understanding of cases involving gender identity and expression and the harm individuals may face due to their non-conformity with socially accepted norms in a particular cultural environment.

[2]       Mr. XXXX, you allege you were assigned female at birth, and you now identify as a transgendered male. You fear persecution in Hong Kong, China from your family, from the government, and from society in general due to your gender identity and expression.

[3]       I find you are a Convention refugee pursuant to 96 of the Act for the reasons that follow.

[4]       I find your personal and national identity is established on the balance of probabilities by a copy of your Hong Kong Special Administrative Region passport in evidence. Based on your testimony at the hearing and the documents in evidence, I have noted no serious credibility issues. You testified in a straightforward manner, and there were no inconsistencies between your Basis of Claim narrative and your statements at the hearing.

[5]       You also provided documentary evidence in support of your claim, including a letter from your aunt with whom you lived as a young person and who accompanied you through the stages of your gender transition and is also with you in Canada. You also provided your Hong Kong passport and ID documents showing your sex as female. I place full weight on these documents in assessing your claim. I find you have established on a balance of probabilities that you are a transgendered male citizen of Hong Kong and no other country. Overall, I accept the central allegations of your claim on a balance of probabilities. I find that you have established subjective fears of persecution in Hong Kong.

[6]       I find your allegations establish a nexus to the ground of membership in a particular social group, specifically due to your gender identity and expression as a transgendered male. As such, I have examined this claim under section 96 of the Act. And based on all the evidence before me, I find you have a well-founded fear of persecution should you return to Hong Kong.

[7]       The National Documentation Package or NDP for Hong Kong at Tab 2.10 says that Hong Kong’s present anti-discrimination ordinances do not cover sexual orientation, gender identity, or sex characteristics. The NDP at Tab 2.1 notes that with respect to sexual orientation, Hong Kong has laws that ban discrimination on the grounds of race, sex, disability, and family status. However, no law prohibits companies or individuals from discriminating on the grounds of sexual orientation or gender identity. There are also no laws that specifically aid in the prosecution of bias motivated crimes against members of the lesbian, gay, bisexual, transgendered, or intersex communities. Tab 6.4 tells us there is currently no legislation in Hong Kong which provides for the recognition of the reassigned, acquired, or preferred gender of a person for all legal purposes. Government departments and private bodies are not required by law to accept a sex entry on a person’s HKIC as that person’s legal gender. Neither is there any mechanism to have the sex entry on a person’s birth certificate amended to reflect his or her assigned, acquired, or preferred gender.

[8]       Your testimony today corroborates this. You stated that the government of Hong Kong is unwilling to change the sex status on your ID to a male identity. You mentioned the difficulties this presents in your everyday life actions as simple as using a public washroom or observing public decency laws related to gender or simply showing your ID at security checks when entering buildings make it impossible for you to live in Hong Kong, free from discrimination and with dignity. You also testified that Hong Kong is generally a conservative, traditional Chinese culture, holding heteronormative views that reject transgendered individuals. You face stigma and discrimination in all aspects of your life. Further, that your family has not recognised your gender identity and still insists on treating you as a female as though nothing has changed.

[9]       Also, China has failed to live up to its international responsibility with respect to Hong Kong by enacting legislation which violates its autonomy and threatens to strangle its freedoms. This is in Item 1.11, and according to the United States Department of State report, found at 2.1 China undermined Hong Kong’s autonomy through an escalating erosion of civil liberties and democratic institutions throughout the year. In June 2020, with the support of the Hong Kong chief executive, the Chinese National People’s Congress unilaterally imposed the national security law on Hong Kong. Significant rights abuses included allegations of police brutality against protesters, arbitrary arrests, and serious restrictions on free expression. While the SAR has laws that ban discrimination on the grounds of race, sex, admissibility and family status, no law prohibits companies and individuals from discriminating on grounds of gender identity. And this source representing submissions from multiple LGBTQ organizations, reports that Hong Kong refused to take legislative steps to protect human rights of LGBTQ persons. And this is at Item 6.3.

[10]     Finally, a United Nations document at Tab 6.4 tells us that China still lacks policies or laws that recognize sexual and gender minorities or protects them from discrimination and unfair treatment on the basis of their gender identity or sexual orientation. However, a number of institutional policies on health care and education, as well as school based, or workplace rules have an impact on their everyday life. Based on the objective evidence and your subjective fears of returning to Hong Kong, I find you face a serious possibility of persecution in Hong Kong because of your gender identity and expression, as you would be required to preserve your female status on your ID even though you identify as a male, your documents continue to be marked — continue to mark you as female while appearing as male, subjecting you to discrimination and harassment amounting to persecution.

[11]     There is clear and convincing objective evidence in the NDP specifically at Tabs 2.1 and 6.3 that the state of Hong Kong has failed to protect transgendered individuals. On that basis, I find you have rebutted the presumption of adequate state protection in Hong Kong. And, according to the Chairperson’s Guidelines, being compelled to conceal one’s gender identity constitutes a serious interference with fundamental human rights that may therefore amount to persecution. And a claimant cannot be expected to conceal their gender identity as a way to avoid persecution in their country of reference. Therefore, I find on a balance of probabilities that you face a serious possibility of persecution throughout Hong Kong as the state is in control of all of its territories and no internal flight alternatives would be available to you.

[12]     For all of the foregoing reasons, I conclude you are a Convention refugee and I therefore accept your claim.

——— REASONS CONCLUDED ———