2024 RLLR 127

Citation: 2024 RLLR 127
Tribunal: Refugee Protection Division
Date of Decision: October 21, 2024
Panel: Vicky Neufeld
Counsel for the Claimant(s): Joseph W. Allen
Country: India
RPD Number: TC2-15137
Associated RPD Number(s): N/A
ATIP Number: A-2025-00724
ATIP Pages: N/A

DECISION

[1] MEMBER: These are the reasons and the decision for the claim of XXXX XXXX, a citizen of India. In coming to this decision, I considered and applied the Chairperson’s Guideline 4 on sexual orientation and gender identity and expression and sexual characteristics, otherwise known as SOGIESC. Ensuring that I was using the same language as the claimant in respect to his stated orientation and in his circumstances.

[2] In addition, I have also considered and applied Guideline 8 on accommodation due to a history of XXXX XXXX concerns that may have impacted the claimant’s testimony. I was careful to avoid detailed accounts of traumatic experiences, and the claimant was advised that he could take a break at any time.

ALLEGATIONS

[3] You have alleged that you face a risk of persecution in India from both the police and society at large because of your sexual orientation as a gay man, and you allege that there is no safe — state protection or any safe place for you in India.

DETERMINATION

[4] Having considered the evidence in its totality, and your testimony, I find that you are a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act as you have established, on a balance of probabilities, that you would face a serious possibility of persecution based on a Convention ground if you would return to India, namely, membership in a particular social group, gay men.

ANALYSIS

Identity

[5] Your identity has been established by your Indian passport.

Credibility
[6] All claimants testifying before the Board under oath or affirmation are presumed to be truthful, unless there is a serious reason to refute that presumption. You have testified in a forthright, spontaneous, and detailed manner, and I noticed no major inconsistencies. Inconsistencies and omissions that I did note during the review of your Basis of Claim were satisfactorily explained.

[7] You testified about how you developed an awareness of your sexual attraction to the same gender when you were in high school. However, you did not have a safe community to come out to, and there was only a small amount of LGBTQ representation in media. You did not have a positive role model and the negative things that you heard about gay people from friends and society left you unable to speak openly with anyone around you about your sexual orientation.

[8] You described how that sense of isolation continues on now, as if you — as you feel that if you came out to your friends that you are still friends with from India, you would be cut off from them. This candour, and the related anxiety about how your sexual orientation would impact your life in India, helped to establish your identity as a gay man.

[9] You described how you were unable to meet or take part in any LGBTQ community activities because of the social isolation you felt until you had graduated from high school and were able to go to clubs. However, when you were open and you did meet with other LGBTQI individuals, you were either harassed or assaulted when in public.

[10] You had initially omitted these personal experiences from your Basis of Claim form, but you were able to explain how you had initially completed your forms without assistance from Counsel, and it was not until you met with the XXXX, just prior to your hearing, that you became aware of how these incidents needed to be articulated to the Board.

[11] Because you were afraid to report any of these incidences to the police, you felt that you did not have evidence and therefore would not be able to submit it. I find your explanation reasonable in the circumstances, and on a balance of probabilities, except these evidence — events and mistreatment had occurred.

[12] In particular, you described meeting a friend in Delhi who had faced ostracism from their own family, and when you and he were on the dance floor in a club, you were asked to leave because you were dancing too closely. And when you left, you were assaulted and slapped around by bouncers. But you were afraid of telling the police that were nearby because you feared that the authorities would do worse if they believe the assault occurred because you were gay. I find that given your lived experience, this was a reasonable fear at the time.

Objective Basis

[13] The National Documentation Package for India supports your subjective fear of life as a gay man in India. According to Item 6.2 of the NDP, the Supreme Court of India has struck down an 1860 law that criminalizes the lives of LGBT persons in 2016, however, despite some steps taken by the judiciary, Item 6.1 of the NDP outlines that many people still view same-sex attraction and relationships as wrong. LGBTQIA persons reported that they face widespread societal discrimination, harassment, violence, particularly in rural areas, and have faced physical attacks, sexual assault, and blackmail.

[14] Item 2.1 of the United States Department of State country report on human rights practices for India reports that LGBTQIA persons face physical attacks and sexual assault, and there is widespread report of societal discrimination and violence. Furthermore, Items 1.6 and 6.6 report obstacles and issues that are preventing the effective implementation of that Supreme Court ruling.

[15] It goes on to state that people who are LGBTQIA are often subject to physical and emotional abuse by their family and wider society. Item 6.6 states that LGBTQIA persons typically face SOGIESC-based discrimination that affects their ability to fully enjoy their civil, cultural, economic, political, and social rights. This also includes discrimination with respect to rental accommodations, denial of housing, exclusion from neighbourhoods, harassment from landlords, neighbourhoods, and family.

[16] Accordingly, considering your profile and the totality of objective evidence before me, I find that you have credibly established a well-founded fear of persecution in India at the hands of society, due to your sexual orientation.

State Protection

[17] Given that the police, who are the agents of the state, are among the agents of harm in your case, I find that it would be objectively unreasonable to expect you to approach the state for protection. Item 6.1 of the NDP reports there is no protection for sexual minorities in the Indian Constitution in terms of broad protection unemployment — against employment, against hate crimes, or against incitement, there is no ban — and there is no ban of conversion therapies.

[18] As noted, the objective evidence confirms that the government, state institutions, and the police have consistently displayed homophobic attitudes and hostility towards SOGIESC people. Furthermore, the objective evidence also states that there is limited recourse for you as there is limited accountability for official misconduct and human rights abuses. Therefore, I find that you have rebutted the presumption of state protection in India and that adequate state protection would not be available to you.

Internal Flight Alternative

[19] Similarly, I have also considered whether an IFA already exists for you. You have described how a lifetime of living in secret has led you to XXXX and isolating yourself from close personal relationships. In addition, you were further isolated when your family emigrated to Canada, and you went onwards to New Zealand. You described how, although your life was more free there and you were able to live openly as yourself, but that being away from your family and the familiarity of your country caused you to return to India. You attempted to live in XXXX and visited other places like XXXX to find a place of belonging but were unable to do so.

[20] I find that you attempted to seek out an internal flight alternative. However, given the XXXX XXXX struggles of your continued isolation that has burdened you with, you would be without your familial support if you returned to India. In addition, the societal attitudes that are slowly changing in India have not changed sufficiently to provide adequate support for you to settle and be safe, and thus I find you would not be safe anywhere in your country.

[21] The National Documentation Package highlighted above indicate that, in general, same-sex relationships are seen as unacceptable throughout India, and the evidence regarding extortion, harassment, discrimination, and violence is not concentrated to a specific part, but it is rather nationwide. Furthermore, I note that Guideline 9 stipulates that a person cannot be expected to conceal their sexual orientation as a way to avoid persecution.

[22] And so, given all the objective evidence before me, I find that there is a serious possibility that you will face persecution throughout a country — the country if you try to live openly as a gay man anywhere in India. As such, I find there is no IFA for you in India, as you face a serious possibility of persecution throughout the country.

CONCLUSION

[23] I find that you face a serious possibility of persecution in India on the grounds of your membership in the particular social group of gay men, and for this reason, I find that you are a Convention refugee under section 96 of the Act, and I accept your claim.

——— REASONS CONCLUDED ———