VB9-03679

RAD File / Dossier de la Associate Respondents : VB9-03679 VB9-03680 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 27, 2020 Date de la décision Panel T. Cheung Tribunal Counsel for the persons who are the subject of the appeal Robert J Kincaid Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Jasbir Sandhu Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal brought by the Minister of Public Safety and Emergency Preparedness and the Minister of Immigration, Refugees and Citizenship. The Appellant appealed the Refugee Protection Division (RPD) decision which determined XXXX XXXX and XXXX XXXX (respectively the Principal Respondent and the Associate Respondent) to be Convention refugees on the basis of membership in a particular social group, namely lesbians. I find the RPD was correct in finding the Respondents were subjected to cumulative discrimination amounting to persecution due to their sexual orientation. RPD reasons and decision [2] The RPD found the Respondents to be credible witnesses. The RPD found credible evidence of the Respondents experiencing repeated harassment, violent aggression and discrimination which compelled the Respondents to hide their sexual orientation in public in order to feel safe from harm in China. The RPD found the level of discrimination to amount to persecution when the Respondents lived openly as a lesbian couple in China.1 [3] The RPD found the state is unable and unwilling to provide protection, and it would be objectively unreasonable for the Respondents to seek state protection for harassment and discrimination in relation to their sexual orientation.2 [4] The RPD found no Internal Flight Alternatives (IFAs) for the following reasons: a. The societal attitudes towards LGBT persons that caused the Respondents to be targets of repeated harassment and discrimination amounting to persecution are prevalent throughout China. b. There are no laws in place anywhere in China that would protect the Respondents from anti-LGBT harassment and discrimination. c. According to the country conditions evidence, the attitudes of the state and the police towards the LGBT community would render state protection ineffective.3 Procedural matters [5] Due to the coronavirus pandemic, the Refugee Appeal Division (RAD) provided written notice to the Respondents giving them 30 days to submit new documents or written submissions. In response to the RAD's letter of June 17, 2020, and notwithstanding the Minister is not subject to any time limits in filing its reply submissions, the Minister requested an extension of time to file final reply submissions pursuant to Rule 11 of the RAD Rules. I granted the extension of time on the basis of procedural fairness that the Appellant be given the same opportunity to file new evidence. The Appellant filed new evidence and a final reply submission by August 26, 2020 which was several days after the imposed due date. I accepted the Minister's new evidence and the final written reply because a valid reason was provided, the delay was not inordinate, and the Minister is not subject to any time limits pursuant to Rule 11 in the filing of its reply submissions. [6] Thereafter, on August 28, 2020, the Respondents made a written request pursuant to Rule 29 of the RAD Rules to submit new documents and to respond to the Appellant's reply with written submissions. No new documents or submissions were attached to the request. The Appellant objected to the Respondents' request to submit new documents and/or additional written submission, arguing that the Minister has the right of last reply because it is the Appellant, and that allowing the Respondents to have the right of last reply is procedurally unfair, a reviewable error, and a breach of procedural fairness and natural justice. [7] In the interests of bringing finality to the procedural process of submissions and because the Respondents submitted no new evidence and submissions along with its request to file a reply to the Minister, I deny the Respondents' request to file further evidence and submissions. Appellant's arguments [8] On appeal, the Appellant made the following arguments: a. Shanghai and Chengdu are viable IFAs. b. The RPD erred in mixed fact and law in not meaningfully assessing the issue of state protection. c. Societal discrimination against LGBTQ persons in China does not amount to persecution. The RPD erred in selectively using evidence to support its position, and in ignoring evidence that shed a positive light on the societal treatment of LGBTQ persons in China.4 The RPD also committed factual errors regarding incidents of discrimination and harassment.5 [9] In its reply submissions, the Minister submitted country conditions documents reporting that the Chinese government will legislate protection for LGBTQ persons. China accepted five of the UN Human Rights Council's recommendations on LGBTQ rights in 2019, including the banning of discrimination within a year.6 [10] The particulars of the Appellant's arguments will be addressed in the analysis of these reasons for decision. DECISION [11] I find the discrimination experienced by the Respondents on account of their sexual orientation give rise to more than a mere possibility of persecution. I also find that the Respondents do not have an IFA in Shanghai and Chengdu. [12] I dismiss the appeal. The RPD was correct in finding that the Respondents are Convention refugees. ROLE OF THE RAD [13] The standard of review at the RAD is correctness on questions of law, fact, or mixed fact and law.7 The RAD can defer to an RPD finding where the RPD had a meaningful advantage in assessing the credibility of oral testimony.8 The RAD carries out its own analysis of the record, on a correctness standard, to determine whether the RPD erred.9 Unless otherwise stated, the standard of review of this RPD decision is correctness. ANALYSIS Cumulative discrimination amounting to persecution [14] The Appellant argued that societal discrimination against LGBTQ persons in China does not amount to persecution. [15] The seminal case of Ward defined persecution as the "sustained or systemic violation of basic human rights demonstrative of a failure of state protection".10 Applying this definition, the Federal Court of Canada has held that it is a serious interference with a basic human right to have to hide one's sexual orientation in order to avoid punishment. Accordingly, it is an error to conclude that persecution does not exist because a lesbian couple can live without punishment by hiding their relationship.11 The Federal Court has found it is perverse to expect an individual to exercise discretion in expressing their sexual orientation, as it is asking them to repress an immutable characteristic.12 The SOGIE Guidelines adopts this jurisprudence in its guidance that a claimant cannot be expected to conceal their sexual orientation as a way to avoid persecution.13 [16] The determination of whether discrimination rises to the level of persecution requires an assessment of whether the discriminatory actions, viewed as a whole, have a cumulative effect on the claimants, such that the discrimination gives rise to more than a mere possibility of persecution in the minds of the claimants.14 The assessment of cumulative discrimination leading to persecution requires a contextual approach that considers all of the circumstances that inform the general atmosphere of insecurity in the country which may give rise to "a feeling of apprehension and insecurity" for the claimant regarding the future.15 The fact-driven assessment considers the claimant's individual circumstances and vulnerabilities, including age, health, and finances as part of the factual context.16 It is necessary to consider whether the cumulative effect of past discriminatory treatment is capable of forming the basis of present fear.17 [17] Applying the foregoing principles to the factual matrix examined below, I find the preponderance of evidence supports a finding that the cumulative effects of the discriminatory incidents experienced by the Respondents give rise to more than a mere possibility of persecution. [18] I also find that an IFA does not exist in Shanghai and Chengdu because the gist of the articles submitted by the Appellant describe country conditions which visitors and ex-pats travelling in China would encounter, and such country conditions are not the same as those experienced by Chinese citizens who identify as LGBT. Additionally, the Respondents have established on a balance of probabilities that they would not be able to move to those cities. Objective country conditions evidence [19] The Minister submitted a number of recent developments in the new country conditions documents that fill in the gaps of the current National Documentation Package (NDP) in regards to the treatment of LGBTQ persons by state and non-state actors.18 The Appellant submitted that the Chinese government will legislate protection for LGBTQ persons because China accepted five of the UN Human Rights Council's recommendations on LGBTQ rights in 2019, including the banning of discrimination within a year.19 The RAD's independent review of the Minister's new country conditions evidence indicates that although China states it has already implemented the recommendations, China has yet to implement the adopted recommendations, according to Amnesty International.20 [20] The recent country condition evidence submitted by the Minister indicates that international human rights groups still consider China's protection for LGBTQ rights to be insufficient, and that employment discrimination against LGBTQ people continue to persist after coming out of the closet, to the extent that many suffer from mental health problems due to societal pressures.21 [21] The RPD conducted a thorough and balanced analysis of the societal attitudes in China towards LGBTQ people. The RPD is correct that the country conditions support a finding that lesbians in China are not protected by legislation. According to the RAD's independent review, legal protections for LGBTQ persons do not exist in China.22 The reach of anti-discrimination laws in China do not address discrimination on the basis of gender identity or sexual orientation.23 There is no legal right or protection for same-sex partnerships in China.24 [22] Government policies on LGBTQ issues are mainly limited to public health issues.25 The stance of the government on LGBTQ persons can be summed up as "not encouraging, not discouraging, not promoting". This policy is one of tolerance but not necessarily of protection against discrimination and harassment on the basis of sexual orientation. [23] The RAD's independent review of the new evidence submitted in the Minister's reply found individual case-by-case examples of a regional government recognizing LGBTQ rights. For example, Beijing, Nanjing, Shanghai and Hubei and several other provincial level regions approved cases of same-sex guardianship, whereby a couple becoming each other's guardian grants some of the same benefits conferred by marriage including power of attorney and inheritance rights.26 Another example is a partner in a lesbian relationship who was able to conceive a child with a sperm donor through IVF outside of China, and was able to register the child in Beijing, as a single mother, with the child bearing the lesbian's partner's surname.27 I find the country conditions evidence citing these examples illustrate how some same-sex couples attain legal rights using existing laws, but such examples are too few to support a finding of wide-spread recognition and acceptance of LGBTQ rights. [24] The Appellant argued that LGBTQ organizations have proliferated, and attitudes toward LGBTQ have shifted because the government is relatively tolerant of LGBTQ issues which do not pose a threat to national security or its political system.28 The Appellant argued that the perceived lack of a threat is the reason for the relative lack of restrictions on the LGBTQ rights movement, and the relative lack of importance of LGBTQ issues on the government's policy agenda. [25] The RAD's independent review finds that while there is a softer stance on some LGBTQ issues in China,29 there is no wide-spread recognition of LGBTQ rights. The new provision in China's civil code continue to define marriage as a union between a man and a woman. The new "right to reside" provision in the civil code gives a property owner the power to grant the right to live on the property for a term or for life, which in theory can apply to same-sex couples.30 According to the country documents submitted by the Minister, it is unknown whether the new civil code provisions on the "right to reside" will provide state protection for same-sex couples.31 [26] The Minister argued that the government's attitude toward LGBTQ is ambivalence not persecution. The Minister submitted that there is no evidence that the Respondents are forced to hide their relationship to avoid punishment. Rather, they hide their sexual orientation because of widespread discrimination against LGBTQ persons in China.32 [27] Indeed, the issue in this appeal is whether the Respondents face discrimination on the basis of their sexual orientation to the extent of persecution. The RAD's independent review reveals that the occurrence of discrimination against LGBTQ persons are predominantly in the family, schools, and the workplace. The most prevalent forms of discrimination include verbal abuse, pressure to modify their appearance, speech and actions, ostracization by teachers and classmates, and coercion by one's family to enter into heterosexual relationships.33 The treatment of LGBTQ persons in employment varies, with some employers taking no action to some employers imposing penalties, such as salary reductions, relocation, prolonged probation, and termination of employment.34 The majority of cases of discrimination against LGBTQ persons go unreported, including discrimination from public authorities such as the Public Security Bureau.35 [28] The Appellant also argued that the government's attitude toward LGBTQ people does not amount to persecution because the risk of persecution for LGBTQ people is a generalized risk. For instance, the increase in the government's monitoring of LGBTQ groups is not unique to LGBTQ organizations but is an overall trend applicable to all NGOs;36 the social credit system applies to all Chinese citizens;37 and the banning of LGBTQ depictions on TV and internet is a general act of censorship laws.38 I am not persuaded by these arguments: the Respondents are seeking refugee protection because they allege to have experienced discrimination specific to them in the form of physical and verbal threats on account of their sexual orientation, and that they have not been given adequate state protection. This alone establishes a nexus to one of the Convention grounds. The fact that other identifiable groups also face monitoring or harassment does not make any of it a generalized risk. Principal Respondent's store was vandalised [29] I do not agree with the Minister's argument that the Respondents have not faced repeated violence acts of aggression due to their sexual orientation, and that they have only been subjected to an act of vandalism against property and an act of aggression against themselves. [30] I find the two occurrences of the Principal Respondent's store being vandalized are acts of discrimination that contributed to the finding of persecution. I do not accept the Minister's argument that it is speculative that the vandalism was motivated by discrimination based on sexual orientation,39 as there is evidence to link the vandalism to a hate crime based on sexual orientation. The Principal Respondent testified to her belief that the vandalism was linked to a customer who had previously made homophobic remarks at the store. The customer made belittling remarks and warned the Respondents that their conspicuous behavior as a lesbian couple was nauseating.40 The Principal Respondent considered the attacks to be hate crimes against LGBTQ people. The police took no action after she reported the crimes. The police ignored the surveillance video and did not investigate the complaint. The inaction of the police caused her to close down the store. [31] The Appellant argued that the RPD erred in speculating that the vandalism was a hate crime when the evidence is unclear as to who committed it.41 I do not accept the Appellant's argument that the inaction of the police to assess the surveillance footage is only relevant to the issue of state protection. [32] The RPD found the evidence of the verbal harassment from a customer, the vandalism targeting only her store, and the police inaction as a chain of events that led the Respondents to feel unsafe and that exposed her be further targeted. The RPD was correct to accept the Principal Respondent's testimony as truthful, as the RAD's independent review found no negative credibility concerns. Therefore, the RPD was correct to accept the Respondents' belief that the homophobic remarks were linked to the vandalism of the store, which the police ignored when the Principal Respondent reported the incidents. Discrimination from the Associate Respondent's school [33] The Associate Respondent experienced discrimination while at the school in which she trained to be a police officer. A tutor from the police training academy pulled the Associate Respondent aside and told her to hide her sexual orientation if she desires to become a police officer. Although the Appellant is correct to point out that neither the academy or any official from the academy prevented her from completing the training,42 the incident caused the Associate Respondent to quit her police academy training because she felt pressured to choose between being a police officer and being able to express her sexual orientation.43 This pressure to hide her sexual orientation is a form of discrimination, in the education and employment domains, that adds to cumulative discrimination amounting to persecution. Discrimination by the police and in the workplace [34] I find the Principal Respondent experienced discrimination in her workplace and by the police on the basis of her sexual orientation. The Principal Respondent was involved in an altercation when she fought back a co-worker who made offensive comments related to her sexual orientation and then attempted either to kiss or attack the Associate Respondent.44 [35] I am not persuaded by the Minister's argument that the motivation behind the work altercation is unclear.45 The Principal Respondent identified the co-worker who assaulted them in the photographs.46 The Principal Respondent testified that the co-worker in the photographs assaulted the Associate Respondent while using foul language to admonish the Respondents for dressing like a man or boy and for liking girls.47 [36] Contrary to the Minister's argument, I find it is immaterial whether or not the co-worker who assaulted the Respondent was brought to the police.48 What is relevant is the discriminatory treatment against the Principal Respondent at the police station before she was released with a warning after being detained for six hours. The police officer told the Principal Respondent that she was not "normal", warned her not to be so open about her sexual orientation, and that if they continued to be open about their relationship, there would be greater consequences. She remained silent during this reprimand as she did not want to dissent with the police.49 [37] After the altercation, the Principal Respondent was told by her employer not to return to work. This termination prompted the Associate Respondent to terminate her employment with the same employer. The Principal Respondent testified that she was terminated because she displayed her sexual orientation more prominently in her appearance; hence, it was more convenient for the employer to let go of an "abnormal" employee.50 [38] The Minister has a valid argument that the Principal Respondent could have been terminated due to the physical altercation.51 However, the lack of clarity as to the reasons for the termination does not mean that discrimination on the basis of sexual orientation did not exist in the Respondents' workplace because it is clear from the testimony that the co-worker's assault against the Associate Respondent was motivated by his dislike of the Respondents' sexual orientation and of their external appearances that did not conform with the co-worker's expectations for their gender. [39] After consideration of the testimony and the country conditions evidence about employment discrimination on the basis of sexual orientation,52 I accept the Respondent's assertion that her appearance as a "boyish looking female" was one consideration underlying the termination of employment.53 State protection [40] The Appellant argued that the RPD did not meaningfully assess the issue of state protection.54 This argument has merit in so far as the RPD's reasoning on state protection could have been more fulsome by examining whether the Respondents made reasonable efforts to exhaust all courses of action to access state protection, or whether there was a compelling reason for not doing so.55 [41] The Appellant argued that there is adequate state protection because there is no evidence that the state, the police, or the judiciary failed to protect lesbians who are physically assaulted or harassed on the basis of sexual orientation, and there is no evidence that lesbians are without recourse when they are harassed or discriminated against.56 I disagree with both of these arguments. [42] The Respondents have rebutted the presumption of state protection. The preponderance of evidence indicates that state protection does not exist given the police inaction to the hate crime complaint, the discriminatory reprimand made by the police when the Respondents were taken to the police station, and the discriminatory remarks at the police academy to hide the Associate Respondent's sexual orientation. [43] The determination of whether there is adequate state protection turns on whether the claimants' efforts to access state protection would result in adequate state protection at the operational level.57 State protection does not need to rise to a standard of perfection.58 A person is expected to make serious efforts to identify and to access state protection, unless there is a compelling or persuasive reason to refrain from doing so.59 [44] The RAD's independent assessment is guided by the SOGIE Guidelines, in particular that the absence of laws that criminalize or discriminate against LGBTQ individuals does not signify a lack of discrimination or the availability of state protection.60 Although homosexuality was decriminalized in 1997, and sex between women was never criminalized,61 the absence of laws that criminalize or discriminate against LGBTQ individuals do not signify the availability of state protection for harm linked to discrimination based on sexual orientation. [45] The Appellant argued that the RPD erroneously imported a Canadian standard to arrive at its conclusion that China's non-recognition of same-sex partnerships is tantamount to persecution or harm.62 I am not swayed by this argument because the Respondents are not seeking protection merely because they are unable to legally marry or to have their union recognized in China. Rather, the Respondents are seeking refugee protection because they felt the need to hide their sexual orientation, due to physical and verbal threats and animosity against them on account of their sexual orientation, and felt that they had no access to state protection. The Respondents' subjective fear of a threat to their safety can be traced to the vandalism at the store, the discriminatory actions of their co-workers, the inactions of the police, and the discriminatory remarks by the police.63 [46] The Appellant cited several successful lawsuits in China for unfair treatment based on existing laws related to employment, consumer protection and health services.64 The examples of litigation for recourse against discrimination based on sexual orientation speak to the treatment of such litigants within the context of those legislated areas. The same article indicates that some litigation cases against LGBTQ discrimination were unsuccessful. These lawsuits were covered in the media to illustrate the advocacy efforts used to raise awareness of the LGBTQ movement in China.65 [47] I have weighed the successful litigation cases cited in the Appellant's evidence within the context of the totality of the country conditions evidence. Given the small sample of cases covered in the media article, the mixed results of the litigation efforts of the LGBTQ community,66 and that none of the litigation cases relate to the police for discriminatory actions or inaction, I find the successful litigation speaks specifically to the factual situations confined to those cases. Although it may demonstrate some progress in employment, consumer protection and health services, the successful litigation cannot be extrapolated into a broader generalized finding that adequate state protection is available from the police to protect the Respondents from the discrimination and harassment they experienced on account of their sexual orientation. [48] I uphold the RPD finding that the Respondents have rebutted the presumption of state protection. The Respondents would not be able to access adequate state protection if they are to live openly as lesbians in China. The Respondents first tested the ability of the state to protect them when they filed a police complaint about the vandalism, and they were met with police inaction. In their next interaction with the police after the altercation with the co-worker, the police reprimanded the Principal Respondent with discriminatory remarks.67 The Associate Respondent experienced discrimination when she was told to hide her sexual orientation at the police training academy. The discrimination exhibited by the police and by the police training academy during the Respondents' interaction with them is a compelling and persuasive reason for refraining from further attempts to access state protection.68 [49] Hence, the RPD was correct to find that state protection would not be forthcoming. The RPD was correct in finding that if the Respondents were to return to China, it would not be objectively reasonable for them to seek state protection for any incidents of harassment and discrimination related to sexual orientation.69 [50] I assign no weight to the court cases from Hong Kong that are cited by the Appellant. Hong Kong is a Special Administrative Region of China that is given a high degree of autonomy under the "one country, two systems" framework, with the exception of defense and foreign affairs. Hence, the Hong Kong judiciary is independent of the judiciary in Mainland China.70 Internal flight alternative [51] The Appellant argued that there is no evidence that the physical altercation prevented the Respondents from relocating in China, and the NDP indicates it is possible to legally relocate in China despite the Hukou registration system as evidenced by the millions who have done so.71 [52] The Appellant argued that the RPD ignored articles about Shanghai and Chengdu being IFAs where the Respondents can live openly as a couple without risk. I agree with the argument to the extent that the RPD should have explained why the Appellant's articles were not assigned greater weight in the consideration of Shanghai and Chengdu as IFAs. As the RPD was silent on the articles about Shanghai and Chengdu, I cannot ascertain whether the RPD indeed ignored the articles or whether the RPD considered the articles but did not write about them. [53] Based on an independent review of the evidence, I uphold the RPD finding that the Respondents have no IFA in China as they would not be able to live openly as lesbians anywhere in China, and therefore, they would suffer a serious interference with their basic human rights.72 [54] The onus of proof is on the claimant to demonstrate a serious possibility of persecution throughout the country, including the areas identified as the IFA.73 The Respondents were given notice that Shanghai and Chengdu would be considered as IFAs.74 The RPD correctly cited the test for IFA: a. The claimant must demonstrate a serious possibility of persecution in the proposed IFA. b. The second prong of the test asks whether it is objectively reasonable to expect the claimant to seek safety in another part of the country before seeking refuge elsewhere. In other words, would it be unduly harsh to expect this person, who is being persecuted in one part of the country, to move to another part of the country before seeking refugee status abroad. [55] The testimony and the objective evidence support a finding, on a balance of probabilities, that the Respondents' hukous are a barrier to their relocation to Shanghai or Chengdu. The Associate Respondent testified that she would not be able to relocate because she owns no property in Shanghai or Chengdu which would entitle her to live there.75 This testimony is supported by the country conditions evidence that the hukou system regulates the internal migration of Chinese citizens from one locale to another. The hukou designates the location where the person may legally reside on a permanent basis and have access to that locale's community-based rights, opportunities, benefits, services, and privileges. Reforms in the hukou system in the 2001 and 2005 have had a marginal impact on the weakening of the system. Permission to legally migrate to a different city outside of the hukou is determined by the government in the locality and can be based on the migrant's exchange of highly skilled talent or investments. Undocumented migrants without hukou authorization are not legally permitted to work. Although undocumented migrants work in the informal sector, they are excluded from access to social security, health insurance, and education, or they must pay higher prices for such services.76 [56] Even considering the Minister's evidence, which the RPD did not address, it would not be reasonable to expect the Respondents to move to Shanghai or Chengdu which were proposed as IFAs. Although the travel articles suggest that a LGBTQ community exists in Shanghai and Chengdu, the articles are not sufficiently probative of the ability of Chinese citizens to live in those cities and to express one's sexual orientation freely without interference with their basic human rights. Nor do the articles address the availability of state protection for discrimination and harassment against Chinese citizens who are LGBTQ in Shanghai and Chengdu. [57] The gist of the Appellant's articles is to provide information about the public culture and services available in Shanghai and Chengdu for travellers and ex-pats in the LGBTQ community.77 Written in English, these articles speak to the intended audience of travellers or expats in China. Therefore, I assign less weight to the articles when assessed in conjunction with the objective country evidence found in the NDP. Articles on Shanghai as the IFA [58] The Wikipedia page on "LGBTQ culture in Shanghai" describes a number of food and entertainment venues, community hubs, and a LGBTQ Tourism Week.78 The Wikipedia page sums up the attitude towards sexual orientation with a quote from a well-known travel guide: "Chinese society sees all sexual relations in a puritanical manner, so Shanghai does not have specialized LGBTQ resources;" however "Shanghai is quite tolerant of gay and lesbian travelers."79 [59] Another article states in its preface: "Although Shanghai still has some way to go before being gay is totally acceptable, it is almost certainly the best place to be if you identify as LGBTQ in China."80 The article goes on to describe Shanghai's gay nightlife, with examples of some food and drinking establishments. There are recommendations for expats in the article. The article acknowledges that "while being out and proud may be growing more acceptable with every year that passes" there is general disapproval of gay and lesbian relationships by family members. The article suggests a dance hall as "is the only place where they can truly be themselves".81 [60] A similar tenor runs throughout the article "Gay Shanghai, Chinese Gay and Lesbian Resources in China" by Utopia Asia. This article states that Shanghai is the best place for LGBTQ people in respect to the numerous venues and festivals listed. This article was written for tourists or foreigners as it includes tour guides operating in English.82 [61] The articles are evidence that the existence of a LGBTQ culture in Shanghai makes the city more progressive for LGBTQ travellers and expats. The articles do not indicate that Chinese residents of Shanghai can freely and openly express their sexual orientation without repercussions in their daily lives within their families, and in the public institutions of schools and the workplace. Articles on Chengdu as the IFA [62] I have considered the Minister's argument that the Respondents can live openly in Chengdu, based on the articles submitted.83 An article published by Conde Nast Traveler describes Chengdu as a home to "a vibrant and visible lesbian community".84 The first widely reported gay marriage and the first high-profile lesbian wedding occurred in Chengdu. However, I note that these are wedding ceremonies and not legal marriages, as same-sex marriage is not legally recognized in China, as acknowledged by the article.85 [63] The Conde Nast Traveler article contains anecdotal evidence of a higher proportion of local residents who openly identify as gay or lesbian: gay Chinese couples can hold hands openly without judgment; an openly gay professor was quoted that "Everybody in China knows that Chengdu is a very famous gay city. It's much easier to be gay here than in Shanghai or Beijing." An explanation for the more accepting culture is that Chengdu was the capital of a rebel kingdom in the 17th century, which became uninhabited. When citizens were ordered to re-inhabit the city, a "melting pot atmosphere" welcomed and assimilated anyone. An outsider culture became part of the local identity.86 [64] Since the intended audience of the Conde Nast Traveler article is tourists and ex-pats, the quote from the openly gay Chinese professor in Chengdu is information for tourists and ex-pats on the LGBTQ culture they may encounter during their visit. Such anecdotal evidence for non-citizens carries less weight for assessing whether the Respondents will be afforded state protection or the freedom to express their sexual orientation openly if they live in Chengdu. [65] In another travel article, Chengdu is described as a city where being gay is "tolerated" and one can "blend in" to the point that gay-only bars are not necessary. The quotes are from Chinese gay people who describe themselves as "invisible" because there are clubs and restaurants where they can socialize in groups with their women and straight friends. This article must be assessed in the context of travel writing that provides information on gay culture, including a list of bars and clubs, where tourists can go to participate in LGBTQ culture.87 [66] There are two organizations in Chengdu that offer services to the LGBTQ community in the Chinese language. However, the existence of these two organizations is insufficient to conclude that the Respondents will be able to work or study freely and openly as a lesbian couple in Chengdu, or that state protection exists in Chengdu to protect against harassment and discrimination at work and school.88 [67] The small sample of anecdotal quotations in these articles suggest a greater tolerance by the general public for the LGBTQ community in Chengdu than in other cities in China. Other than anecdotal quotations, these articles provide little objective data on whether LGBTQ people who are Chinese citizens in Chengdu and not ex-pats and visitors, can live openly while participating in school or the workforce. The articles provide little objective data on whether LGBTQ Chinese citizens in Chengdu will be afforded state protection against harassment and discrimination on the basis of sexual orientation. Therefore, I assign less weight to the articles when they are assessed within the factual matrix of the country conditions evidence found in the NDP. [68] Given the diminished weight assigned to the articles about Shanghai and Chengdu, I find the IFAs are not reasonable in all the circumstances. CONCLUSION [69] The appeal is dismissed. The RPD was correct in finding that the Respondents are Convention refugees. (signed) T. Cheung T. Cheung October 27, 2020 Date 1 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, p. 8, para. 24 and 25, p. 9, para. 28, pp. 13 to 18, para. 50 to 74. 2 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, p. 19, para. 77 to 78. 3 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, pp. 19 to 20, para. 79 to 84. 4 Exhibit M-2, Appellant's Record, Minister's Memorandum, pp. 18 to 20, para. 50 to 59. 5 Exhibit M-2, Appellant's Record, Minister's Memorandum, pp. 21 to 23, para. 61 to 74. 6 Exhibit M-4, The Minister's Reply (August 26, 2020) p. 5, para. 11 to 12, p. 9, para. 31; Exhibit M-3, "Can China Use LGBTQ Rights to Bolster Its Human Rights Reputation?" Jo Kim, The Diplomat July 21, 2020. 7 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 103. 8 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 70. 9 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 103. 10 Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 S.C.R. 689. 11 Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), 2004 FC 282 (CanLII), para. 29. 12 Okoli v. Canada (Citizenship and Immigration), 2009 FC 332 (CanLII), para. 36. 13 Paragraph 8.5.1.1 of Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective Date: 1 May 2017. 14 Tetik v. Canada (Citizenship and Immigration), 2009 FC 1240 (CanLII), para. 26 to 29; Mete v. Canada (Minister of Citizenship and Immigration), 2005 FC 840 (CanLII), para. 5 to 6. 15 Office of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, reissued: Geneva, December 2011. 16 Liang v. Canada (Citizenship and Immigration), 2008 FC 450, para. 18 to 22. 17 Bledy v. Canada (Citizenship and Immigration), 2011 FC 210 (CanLII), para. 30 citing Retnem v Canada (Minister of Employment and Immigration) (1991), 132 NR 53, 27 ACWS (3d) 481 (FCA). As Chief Justice Arthur Thurlow indicated in Alfredo Manuel Oyarzo Marchant v Minister of Employment and Immigration, [1982] 2 FC 779 (CA): 18 Exhibit M-4, The Minister's Reply (August 26, 2020), pp. 8 to 11, para. 26 to 42. 19 Exhibit M-4, The Minister's Reply (August 26, 2020) p.; 5, para. 11 to 12, p. 9, para. 31; Exhibit M-3, "Can China Use LGBTQ Rights to Bolster Its Human Rights Reputation?" Jo Kim, The Diplomat July 21, 2020. 20 Exhibit M-3, China urged to take action on LGBT+ rights after backing U.N. Changes (March 7, 2019), pp. 63 to 66. 21 Exhibit M-3, Can China Use LGBTQ Rights to Bolster Its Human Rights Reputation? Jo Kim, The Diplomat July 21, 2020, pp. 2 to 4. 22 Archive - National Documentation Package, China, 31 October 2018, tab 6.3: Being LGBTQ in Asia: China Country Report. A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society. United Nations Development Programme; United States. Agency for International Development. 8 August 2014, p. 26;tab 6.4: Being LGBTQ in China: A National Survey on Social Attitudes toward Sexual Orientation, Gender Identity and Gender Expression. United Nations Development Programme. 15 May 2016, p. 21. 23 Archive - National Documentation Package, China, 31 October 2018, tab 6.3: Being LGBTQ in Asia: China Country Report. A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society. United Nations Development Programme; United States. Agency for International Development. 8 August 2014, p. 44. 24 Archive - National Documentation Package, China, 31 October 2018, tab 6.3: Being LGBTQ in Asia: China Country Report. A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society. United Nations Development Programme; United States. Agency for International Development. 8 August 2014, p. 44. 25 Ibid., p. 27. 26 Exhibit M-3, Beijing Approves Mutual Guardianship for Gay Couple August 12, 2019, pp. 43 to 56. 27 Exhibit M-3,A boy, a girl and two mothers: how a trailblazing Chinese lesbian couple are creating a family, SCMP, pp. 57 to 62. 28 Exhibit M-4, The Minister's Reply (August 26, 2020), pp. 9 to 10, para. 35 to 37. 29 Exhibit M-3, Can China Use LGBTQ Rights to Bolster Its Human Rights Reputation? Jo Kim, The Diplomat July 21, 2020, pp. 4 to 6. 30 Exhibit M-4, The Minister's Reply (August 26, 2020), p. 9, para. 32; Exhibit M-3, China's same-sex couples heartened by property protection rights in new civil code, Reuters World News May 28, 2020, pp. 8 to 10. 31 Exhibit M-3, China's same-sex couples heartened by property protection rights in new civil code, Reuters World News May 28, 2020, pp. 7 to 11. 32 Exhibit M-4, The Minister's Reply (August 26, 2020), p. 5, para. 13. 33 Archive - National Documentation Package, China, 31 October 2018, tab 6.4: Being LGBTQ in China: A National Survey on Social Attitudes toward Sexual Orientation, Gender Identity and Gender Expression. United Nations Development Programme. 15 May 2016, p. 28. 34 Archive - National Documentation Package, China, 31 October 2018, tab 6.3: Being LGBTQ in Asia: China Country Report. A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society. United Nations Development Programme; United States. Agency for International Development. 8 August 2014, p. 35. 35 Archive - National Documentation Package, China, 31 October 2018, tab 6.3: Being LGBTQ in Asia: China Country Report. A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society. United Nations Development Programme; United States. Agency for International Development. 8 August 2014, p. 25. 36 Exhibit M-4, The Minister's Reply (August 26, 2020) pp. 9 to 10, para. 35 to 37. 37 Exhibit M-4, The Minister's Reply (August 26, 2020), p. 11, para. 40. 38 Exhibit M-4, The Minister's Reply (August 26, 2020) p. 11, para. 41 to 42. 39 Exhibit M-4, The Minister's Reply (August 26, 2020), p. 6, para. 16. 40 Audio of RPD Hearing, 00:19 to 00:27. 41 Exhibit M-2, Appellant's Record, Minister's Memorandum, p. 22, para. 68 to 69. 42 Exhibit M-2, Appellant's Record, Minister's Memorandum, p. 22, para. 67. 43 Audio of RPD Hearing, 00:50 to 00:54. 44 Audio of RPD Hearing, 00:31:35 to 00:35. 45 Exhibit M-4, The Minister's Reply (August 26, 2020), p. 6, para. 17. 46 Exhibit RPD-1, RPD Record, Exhibit 4.1, p. 202. 47 Audio of RPD Hearing, 1:35 to 1:44. 48 Exhibit M-4, The Minister's Reply (August 26, 2020), p. 6, para. 17 to 18. 49 Audio of RPD Hearing, 0:36 to 0:40. 50 Audio of RPD Hearing, 1:43 to 1:48. 51 Exhibit M-4, The Minister's Reply (August 26, 2020), pp. 6 to 7, para. 19 to 22. 52 Exhibit M-3, Can China Use LGBTQ Rights to Bolster Its Human Rights Reputation? Jo Kim, The Diplomat July 21, 2020, pp. 2 to 4. 53 Exhibit P-1, Respondents' Record, Respondents' Memorandum, page 13, para. 5(e). 54 Exhibit M-2, Appellant's Record, Minister's Memorandum, pp. 15 to 18, para. 33 to 49. 55 Ruszo v. Canada (Citizenship and Immigration), 2013 FC 1004, para. 32 and 50. 56 Exhibit M-2, Appellant's Record, Minister's Memorandum, p. 16, para. 40 and 41. 57 Meza Varela v. Canada (Citizenship and Immigration), 2011 FC 1364 (CanLII), para. 16 58 Majoros v. Canada (Citizenship and Immigration), 2013 FC 421 (CanLII), para. 12. 59 Ruszo v. Canada (Citizenship and Immigration), 2013 FC 1004, para. 50. 60 SOGIE Guidelines, paragraph 8.5.7.1. 61 National Documentation Package, China, 20 December 2019, tab 6.1: "Have You Considered Your Parents' Happiness?": Conversion Therapy Against LGBTQ People in China. Human Rights Watch. 15 November 2017, p. 48. 62 Exhibit M-2, Appellant's Record, Minister's Memorandum, pp. 16 to 17, para. 39 to 44. 63 Audio of RPD Hearing, 00:31:35 to 00:35; 00:50 to 00:54; 1:38 to 1:43 64 Exhibit M-2, Appellant's Record, Minister's Memorandum, pp. 16 to 17, para. 42. 65 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 266 to 267. 66 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 266 to 267. 67 Audio of RPD Hearing, 0:36 to 0:40. 68 Ruszo v. Canada (Citizenship and Immigration), 2013 FC 1004, para. 50. 69 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, p. 19, para. 77. 70 National Documentation Package, China, 20 December 2019, tab 2.1: China. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019, pp. 90 to 94. 71 Exhibit M-4, The Minister's Reply (August 26, 2020), pp. 7 to 8, para. 25. 72 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, p. 20, para. 84 to 85. 73 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 74 Audio of RPD Hearing, 00:16. 75 Audio of RPD Hearing, 2:00 to 2:06. 76 Archive - National Documentation Package, China, 31 October 2019, tab 14.7: Temporary and permanent migration between provinces, including documentation needed and reporting requirements; whether citizens relocate without fulfilling official requirements and the effect on access to housing, employment, and health care...?. Immigration and Refugee Board of Canada. 20 August 2012. CHN103882.E, p.1 to 5. 77 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 310 to 321, "Gay Shanghai, Chinese Gay and Lesbian Resources in China by Utopia Asia"; pp. 328 to 335, "Gay Chengdu, Sichuan, Chinese Gay and Lesbian Resources in China by Utopia Asia". 78 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 302 to 307, "LGBTQ culture in Shanghai". 79 Exhibit RPD-1, RPD Record, Exhibit 5, p. 305, "LGBTQ culture in Shanghai". 80 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 308 to 309, "Out and Proud: Shanghai's LGBTQ Scene". 81 Exhibit RPD-1, RPD Record, Exhibit 5, p. 308, "Out and Proud: Shanghai's LGBTQ Scene". 82 Exhibit RPD-1, RPD Record, Exhibit 5, "Gay Shanghai, Chinese Gay and Lesbian Resources in China" by Utopia Asia, pp. 310 to 321. 83 Exhibit M-2, Appellant's Record, Minister's Memorandum, pp. 10 to 11, para. 18 to 25. 84 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 322 to 327, "How Chengdu Became China's Most Inclusive City", Conde Nast Traveler. 85 Exhibit RPD-1, RPD Record, Exhibit 5, p. 323, "How Chengdu Became China's Most Inclusive City", Conde Nast Traveler. 86 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 322 to 326, How Chengdu Became China's Most Inclusive City - Conde Nast Traveler. 87 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 328 to 335, Travel Resources: CHENGDU. 88 Exhibit RPD-1, RPD Record, Exhibit 5, p. 329, Travel Resources: CHENGDU. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-03679 VB9-03680 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français