Citation: 2019 RLLR 8
Tribunal: Refugee Protection Division
Date of Decision: July 22, 2019
Panel: William T. Short
Counsel for the claimant(s): Luke McRae
Country: China
RPD Number: TB6-02224
ATIP Number: A-2020-01124
ATIP Pages: 000058-000064
REASONS FOR DECISION
[1] [XXX] (the claimant) is a 27-year-old man who is a citizen of the People’s Republic of China (China). He claims that he is a Convention refugee or a person in need of protection pursuant to the provisions of section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1
ALLEGATIONS
[2] The claimant is a gay man. He alleges that should he return to China, he would run a significant risk of being subjected to electroshock therapy and other cruel and abusive treatments in order to “cure” him of his gay sexual orientation.
Allegations of material fact
[3] The claimant’s story is a sad one and can be seen in its entirety in the narrative portion of his Basis of Claim Form (BOC).2
[4] Briefly put, the claimant was subjected to severe and even appalling mistreatment by his parents (mainly by his mother) while he was young. This resulted in the claimant running away from home. He was, however, found by his father, returned home, and subjected to more mistreatment.
[5] The mistreatment had a significant negative effect on the claimant’s physical and mental health. It culminated in the claimant attempting suicide in 2012.
[6] To make the claimant’s life even more complicated, the claimant discovered when he was a young man that he was gay. He didn’t come out to his parents but maintained that he was bisexual.
[7] In 2010, the claimant came to Canada as a student to study civil engineering. He returned to China on occasion between 2011 and 2014 but hid his true sexuality from his parents. In his last visit to China in 2014, the claimant “came out” to his parents as gay. This resulted in the claimant being involuntarily confined to a psychiatric facility (although he was 22 years old at the time) and subjected to electroshock therapy.
[8] After he had returned to his parents’ home one night, the claimant was able to feign sleep when he surreptitiously did not take the sleeping pills his parents had given him. He escaped from his parents’ house and stayed in a small hotel for a few days before catching his flight back to Canada.
[9] At present, the claimant is remarried (he had previously married, but divorced). He and his husband travelled from [XXX], where they now reside, for the hearing. The claimant’s husband was an observer at the hearing. I determined that it was not necessary for the claimant’s husband to testify, as I accepted that the claimant was gay.
[10] The claimant has contact with his parents through an internet service, but they do not discuss the claimant’s sexuality.
[11] The claimant applied for refugee protection in February 2016 after his studies were temporarily terminated. The claimant’s student visa was valid until [XXX], 2016.
DETERMINATION
[12] I accept the certified true copy of the claimant’s Chinese passport tendered in evidence.3 I find that the claimant is a citizen of China and that he is who he claims to be.
ANALYSIS
[13] By alleging that he would face persecution in China on account of his sexual orientation, the claimant has established a link to a Convention ground (e.g., membership in a particular social group).
[14] I have accepted this claim for the reasons set out below.
Initial finding of facts
[15] This hearing was a de novo hearing of a matter originally heard by a previous panel. The matter was sent back to the Refugee Protection Division (RPD) for redetermination by the Refugee Appeal Division (RAD).
[16] I have read the reasons of both the previous panel and of the RAD (the hearing transcript was not available). I am of the opinion that I may safely accept the findings of fact made by the previous panel and the RAD without re-litigating them.
[17] Accordingly, I accept that the claimant is a gay man and that he has psychological and emotional issues. I also accept that the claimant has a history of mental health problems (which is documented in the record), which arose in part from the mistreatment he endured from his parents during his childhood. To this end, I have read the claimant’s medical reports, which form part of the record in this matter.4
Chairperson’s Guideline 9
[18] In considering this claim, I have been assisted in referencing the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE).5
The uniqueness of the claim
[19] This claim has a unique complexity, because it involves the place and treatment of sexual minorities in China, the place and treatment of sexual minorities in the Chinese mental health system, the after-effects of China’s one-child policy, and the way family ties bind individuals to their families in China in ways that might seem odd to someone looking at the situation through Western eyes.
Determinative issue
[20] The nub of this matter boils down to whether the claimant would face a serious possibility of harm upon return to China because of the interplay of the issues noted above.
[21] In essence, the claimant alleges that he has a tendency to suffer from depression when he is alone, as a result of the chronic mistreatment by his mother when he was a youngster. The claimant also alleges that China’s one-child policy placed pressure upon him to live up to his parents’ hopes and expectations.
[22] The claimant further alleges that should he return to China, he would be unable to take his husband with him. As the claimant’s husband has no status in China and the Chinese government does not recognize same-sex marriages, the claimant would be unable to sponsor him. This would result in the claimant, who has already attempted suicide and has suffered from suicidal ideations, needing to seek assistance from the mental health system.
[23] Because the claimant is gay, the Chinese mental health system would very likely single him out for “corrective” treatment in order to give him a “normal” sexual orientation. This would likely involve electroshock therapy of the type that the claimant endured.
[24] Furthermore, although the claimant is now 27 years old, well-educated, speaks fluent English (no interpreter was required at the hearing), and is considered an emancipated adult, the claimant maintains that in China, filial piety and the Confucian tradition would emotionally compel him to seek out his parents and subject himself to their will, even if he was aware that such a course of action would be profoundly against his own interests.
Country condition documents
[25] According to Human Rights Watch, “Homosexuality is neither a crime nor officially regarded as an illness in China.”6 An article on conversion therapy in China by online publication, Sixth Tone, states that:7
The Chinese government decriminalized homosexuality in 1997. Three years later, in 2001, the country’s psychiatric association declassified homosexuality as a mental disorder. However, activists say that there are still few legal protections for LGBT [lesbian, gay, bisexual, and transgender] people who are targeted for conversion therapy despite notable court cases questioning the practice.
[26] The article further states that, “Clinics are cashing in on prejudices and misinformation that people harbor about the LGBT community.”8
[27] The SOGIE Guideline indicates that sexual minorities may be forced into various “treatments,” including electroshock therapy. It notes that these treatments “violat[e] an individual’s security of the person and [are] persecutory.”9
[28] It is accepted by this panel that in 2014, the claimant was forced by his parents to undergo electroshock therapy, which constitutes persecution as per the SOGIE Guideline.
[29] That said, is there a serious possibility of the claimant being forced to undergo electroshock therapy or other such treatments, should he return to China?
[30] The claimant asserts that this question should be answered in the affirmative for two reasons. Firstly, as someone who is prone to bouts of depression and suicidal ideation, he would be a stranger in a strange land without the support of his husband, his friends, or any of his support network. He would likely spiral into depression and would come into contact with the Chinese mental health system. At that point, he would run to a high risk of some of the cruel and persecutory treatments outlined in the SOGIE Guideline.
[31] Secondly, the claimant says that if he were to return to China, he would be under the control of his parents. For Westerners, it is difficult for us to imagine how a well-educated and otherwise emancipated adult would come under the control of his parents. In his testimony, the claimant stated that his parents had given him life and that they had the right to take it away from him. He wept when he said that if he were to return to China, it would be emotionally impossible for him to not do what his parents had told him.
[32] I find myself persuaded by these arguments. I find as a fact that if the claimant were to return to China, his emotional well-being would likely hit rock bottom, bringing him into contact with the Chinese mental health system. There would be, in my view, more than a mere possibility that the claimant would be subjected to persecutory medical treatments for a Convention reason. This, to my mind, makes him a Convention refugee.
[33] If the claimant were to re-establish contact with his parents in China, this would likely fast-track him to the same type of persecutory treatments.
[34] In the circumstances, it is not necessary to consider counsel’s “compelling reasons” submission with respect to section 108(4) of the IRPA.10
[35] In reviewing this file, I must say that it is a pity that the previous RPD panel chose not to use its discretion and make a positive determination in favour of the claimant, instead of this matter having to be reheard and the claimant and his husband having to travel back to Toronto from [XXX].
CONCLUSION
[36] I accordingly find that the claimant is a Convention refugee. His claim is therefore accepted.
(signed) William T. Short
July 22, 2019
1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC), received February 16, 2016.
3 Exhibit 1, Package of information from the referring CBSA/CIC, received February 16, 2016.
4 Exhibit 1, Package of information from the referring CBSA/CIC, received February 16, 2016.
5 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guideline issued by the Chairperson pursuant to paragraph 159(l)(h) of the Immigration and Refugee Protection Act, effective date: May 1, 2017 [Chairperson’s Guideline 9].
6 Exhibit 3, National Documentation Package (NDP) for China (March 29, 2019), item 6.1, p. 1.
7 Exhibit 4, Country Documents Package, “Conversion Therapy Still Promoted in China, Investigation Finds,” p. 1, received June 24, 2019.
8 Ibid., p.3.
9 Chairperson’s Guideline 9, supra, footnote 6, s.8.5.8.1.
10 IRPA, supra, footnote 1, section 108(4).