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2021 RLLR 22

Citation: 2021 RLLR 22
Tribunal: Refugee Protection Division
Date of Decision: October 29, 2021
Panel: Moyosore Sadiq-Soneye
Counsel for the Claimant(s): Gabriella B Utreras Sandoval
Country: India
RPD Number: TC1-12568
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000108-000111



Reasons for Decision

[1]     These are the reasons of the Refugee Protection Division of the Immigration and Refugee Board of Canada for the — for the decision in the claim of XXXX XXXX XXXX, who is also known as [inaudible], file number TC1-12568, held on the 29th of October, 2021.


[2]     Your allegations are set out in the claimant’s Basis of Claim form in Exhibit 2 and 4. In summary, you allege to be an Indian trans woman in the process of transitioning. Your sexual orientation is pansexual. You have experienced abuse multiple times, and you fear returning to India on the basis of your gender identity and sexual orientation, and you claim refugee protection under s. 96 and s. 97(1) of the Immigration and Refugee Protection Act. I considered and applied the Chairperson’s guideline 9, regarding claims on sexual orientation and gender identity and expression.


[3]     I find that you are a Convention refugee according to s. 96 of the Immigration and Refugee Protection Act.


[4]     Your identity as a citizen of India was established by a certified true copy of your passport, a copy of your Indian union driving licence, a copy of your birth certificate, a copy of your national identity card, set out in Exhibit 5.


[5]     I find that this claim is based on your membership in a particular social group, as the claim is based on your gender identity and sexual orientation. Thus, you will be assessed according to s. 96 of the Immigration and Refugee Protection Act.


[6]     Credibility is always an issue in a refugee protection hearing. You testified in a straightforward manner with no hesitation, and quite often with great emotion. You provided realistically detailed testimony of your experience as a sexual minority in India. You described the intolerance and harassment that you faced from family, the society, and even the police. You explained that your gender identity and sexual orientation alienated you from your family, and the last communication you had with them regarding your engagement with XXXX (ph) was very stressful for you. Your allegations are supported by the documentary evidence that we have. Therefore, I accept your allegations that you are who you say you are, a pansexual trans woman from India who has a forward-looking risk of facing persecution in India. You are afraid to return to India and live your life openly as a pansexual trans woman. In support of your claim, you provided multiple documents corroborating your allegations, including an updated Basis of Claim form, translated Facebook messages from XXXX (ph), your father, Facebook messages from [inaudible] XXXX (ph), your sister, a letter from XXXX (ph), your counselor, copies of medical files, including emergency department triage records, mental health assessments, mental health services reports, and a letter of recommendation for cross-gender hormone replacement therapy from XXXX XXXX (ph), a support letter from XXXX XXXX (ph), your fiancé, with accompanying ID dated , XXXX XXXX 2021, support letter from XXXX XXXX (ph), your friend, with a accompanying ID dated XXXX XXXX, 2021, support lette from XXXX XXXX XXXX (ph), dated XXXX XXXX 2021, a copy of lease with you listed as a tenant and XXXX XXXX as a tenant too, which — with two children, photos of you, XXXX, XXXX (ph), and XXXX (ph).

Articles on the Country Conditions

[7]     I find the documents provided to be highly probative because I have no reason to doubt the authenticity. They contain all marks of genuine documents, and I hereby assign them full weight in corroborating your allegations of persecution. I find that you have established on a balance of probabilities that you are a pansexual trans woman from India. You testified in detail about your personal evolution as to your self­ definition and self-awareness as to your sexuality and gender. Your Basis of Claim narrative states your experiences in India, past relationship with XXXX (ph), and current relationship with your fiancé XXXX XXXX, and much more. You spontaneously state the things that you like about XXXX XXXX , and about your relationship with the children. XXXX XXXX provided a detailed support letter. You found out your sexual orientation when you were in grade 6 or 7, and at that time, you knew that you liked boys and thought that you were gay. You have now discovered that you are pansexual, and that gender does not matter for you, but connection does, in a relationship. You became aware of this because your fiancé, XXXX XXXX is a trans man, and you realized that the connection is all the matters. You discovered your gender identity as an adult in Canada, though you had worn female clothing and makeup as a child, and you got harassed and reprimanded strongly for doing that. In addition, you provided corroborating documents about the allegations on the state of your mental health. Cumulatively, I am satisfied on a balance of probabilities that you have established subjective fear, and the objective basis and evidence support the same, and you have a well-founded fear of persecution in India on the basis of your sexual orientation as a pansexual and trans woman.

Objective Basis

[8]     Although the law in India made it legal for sexual minorities in India in late 2018, the general public have not accepted such relationships. LGBTQ2+ groups reported that they faced widespread societal discrimination and violence, particularly in rural areas. Some police committed crimes against LGBT persons and used the threat of violence to coerce victims not to report the incidents. Research has revealed that LGBTQ persons typically face sexual orientation and/or gender identity-based discrimination that affects their ability to fully enjoy civil, cultural, economic, political, and social rights. For example, housing. Its members often face extensive rights violations within the domain of housing [inaudible]. This includes discrimination in the rental market, denial of housing, segregation into poorly resourced neighbourhoods, violence and harassment from landlords, neighbours, families, and police.

[9]     Sexual minorities experience discrimination and human rights abuses at all stages of the employment process. This includes unequal access to educational opportunities, discrimination during the recruitment process, discrimination and gendered working conditions, and a Jack of job security. I had to look holistically at the experience that a trans woman who is pansexual would face in India in terms of the overall climate, both from the state and from the people, as well as the active persecution that one might face in India. I’ve also considered your personal circumstances in this case. Your clear desire to live openly, both in terms of your sexual orientation as well as your gender identity. I also considered the past abuse on your mental state. So, for these reasons, I find that you have sufficiently established from the evidence that there remains a conservative culture which in and of itself might not be enough. But the totality of the factors point in the direction that there is sufficient subjective fear and objective basis to have your claim rise to the level of persecution to satisfy the terms that I have to apply today.

State Protection

[10]   Refugee status is only available to those who can establish that state protection is unavailable to them in their country of nationality. States are generally presumed to be capable of protecting their citizens. However, this presumption may be rebutted by clear and convincing evidence that state protection would not be forthcoming to the claimant. I am satisfied that the presumption of state protection has been rebutted in your case. In reviewing the country conditions on state protection in India and its treatment to the sexual minorities, the NDP item 6.1 outlines that the attitudes and behaviour of the police is one of the biggest barriers to sexual minorities — to sexual minorities’ access to the justice system in India. Furthermore, in several cases, the police have refused to file complaints submitted by sexual minorities, owing to bias or stereotypes. You testified that you sought state protection when your father locked you up in a room for about a week after beating, abusing, and causing you injuries that have caused scars on your face. You could not access medical assistance because you were locked up. You escaped by breaking the window. However, when you reported to the two police officers, they made snide comments like ‘oh, he is one of those,’ and they collected your father’s phone number. You had thought that the officers collected your father’s phone number to take action against the inhumane treatment meted to you by your father, but they only took the number to call your father to take you back home. You got no help from the police, as they refused to file a complaint, and they released you to your father, who abused you.

[11]   Objective evidence does indicate the laws might be in place and mechanism of protection for sexual minorities may be in place. However, I find that at this time, they are not operationally adequate. The attitude of the police remains one of the biggest barriers for access to justice for sexual minorities. Given the mistreatment of sexual minorities by Indian authorities, and the evidence painting to the limited police effectiveness regarding LGBTQ crimes, I find on a balance of probabilities that adequate state protection would not be reasonably forthcoming to you in India.

Internal Flight Alternative

[12]   I have also considered whether a viable internal flight alternative exists for you. In other words, whether there is any location in India where you could live safely. Based on the country condition evidence, I find that the persecution of LGBTQ+ persons persists throughout India. I therefore find on a balance of probabilities that there is no viable internal flight alternatives for you in India.


[13]   So, for all the above reasons, having considered everything, including the SOGIE guidelines, I find that you have a well-founded fear of persecution under s. 96, and thus, I find you to be a Convention refugee under the Immigration and Refugee Protection Act, and I therefore accept your claim.