Citation: 2020 RLLR 98
Tribunal: Refugee Protection Division
Date of Decision: 11 March 2020
Panel: Jack Davis
Counsel for the Claimant(s): El Farouk Khaki
Country: India
RPD Number: TB8-09278
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000083-000090
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of [XXX] (the claimant), a citizen of India. She fears persecution in India due to the inter-relationship of three factors: She is HIV-positive, she is a single female and she is of the Muslim faith.
Credibility
[2] The claimant provided a comprehensive narrative of what had happened to her in India in the form of a sworn affidavit consisting of 81 paragraphs over 15 pages. I find the information contained in this detailed affidavit to be credible and trustworthy evidence, for three main reasons.
[3] First, the claimant’s testimony was consistent with the affidavit and there were no contradictions, omissions or embellishments.
[4] Second, I find it very hard to believe that any person would have the perspicacity to conjure up a false story of such length and detail and then be able to memorize same in order to ‘correctly’ answer questions regarding same.
[5] Third, I have before me in evidence many items of corroborative documentary evidence. Before me are documents confirming the claimant’s: marriage and divorce;[1] the deaths of the claimant’s parents;[2] the claimant’s miscarriage;[3] the claimant’s acting career;[4] and diagnosis as HIV-positive.[5]
[6] In view of the foregoing, I find the claimant to have been a credible and trustworthy witness and accept her account of her experiences in India as being the truth.
Well-founded Fear of Persecution
[7] In the documentary evidence that is before me, I note the following with respect to persons who are HIV-positive in India:
The stigma of AIDS’ might sound like a phrase from another era but in India anyone who is HIV-positive or has AIDS continues to feel the whiplash of contempt and discrimination from the moment their condition is discovered.[6]
The latter is a mammoth task as both teachers and parents of the other children often rise up in disgust at the idea of having HIV-positive children in the same classroom. Mohanty says the hostility has not softened much ever since the case of Bency and Benson in Kerala caught the headlines. These two young siblings were left orphaned after their parents died of AIDS in 2000. Their grandparents continued raising them but when other parents heard of their condition, they forced the school to expel them.[7]
Mohanty thinks it will take “decades and decades” before most Indians treat those with HIV/AIDS fairly. Attitudes are changing, she concedes but far too slowly. She speaks of the Hyderabad landlord who, unusually, agreed to let the Desire Society rent his building to use as a home for the orphans. After a few years, Desire was able to buy some land and build its own home. It then vacated the building. “That landlord will curse us every day for the rest of his life. No one has been willing to rent the house since we moved out, just because our HIV-positive children, who have done nothing wrong, lived there,” she said.[8]
According to the plea, the patient had suffered an accident on August 9, 2017 following which he went to Babu Jagjivan Ram Hospital. However, one doctor Rajesh abused him for not revealing his HIV status and also referred him to the OPD department where he was given first aid treatment and his leg was plastered by them leading to formation of blisters and a possibility of development of gangrene. On August 30, 2017, the patient was referred for treatment to LNJP hospital due to non-availability of implants at Babu Jagjivan Ram. However, even LNJP failed to provide any treatment even though the referral slip mentioned the need of immediate surgery and discharged him after giving only first aid treatment and raw plaster. Following this, he got himself treated at a private hospital while refused by several others because of his HIV status.[9]
On October 5, a 27-year-old HIV-positive woman hanged herself from a pipe in Hyderabad’s Osmania General Hospital … In another incident last month, doctors declared a 24-year-old pregnant woman admitted to Tikamgarh district hospital in Madhya Pradesh a ‘human bomb’ after she tested positive for HIV, the virus that causes AIDS. The confidential pathology report was leaked by the lab technician and within hours, everybody from the doctor to the nurse and the ward boy refused to treat her. She finally delivered twins, who died within 30 minutes of birth, unattended on the ward floor.[10]
In Uttar Pradesh’s Bareilly district last year, an HIV-positive woman delivered a stillborn after a hospital in neighbouring Badaun refused to treat her because she didn’t have Rs 2,000 to buy gloves for the hospital staff. Discrimination in both government and private health centres and hospitals is rife across states, say people living with HIV and AIDS (PLHA). “Paramedics and nursing staff and in some cases even doctors often refuse to take care of HIV+ patients,” said Swapan Mallick (name changed), who has HIV and works with Bengal Network of PLHAs.[11]
India’s fight against AIDS is being jeopardised by a cut in social spending by Prime Minister Narendra Modi’s government, with health workers being laid off and programmes to prevent the spread of the deadly disease curtailed.[12]
The year 2016 marks the 30th anniversary of the first known case of HIV in India. While the number of new HIV infections in India declined by 25 percent from 2005 to 2013, the stigma of the disease remains strong.[13] [emphasis added]
In India, the stigma of HIV remains fierce. There are no Indian public figures such as Magic Johnson or Charlie Sheen who have made HIV more acceptable. Small “pocket epidemics” continue to emerge and several states in India have disproportionately high prevalence rates, reaching as high as 30 percent in some communities.[14] [emphasis added]
[8] With respect to Muslims in India, the following from the documentary evidence is instructive:
Across India, students at other universities were organizing similar rallies against the Citizenship Amendment Act — a key policy of Prime Minister Narendra Modi’s Hindu nationalist government. The law offers amnesty to undocumented migrants from three neighboring Muslim-majority countries — but only if they are non-Muslim. Critics say that by excluding Muslims, the law establishes a religious test for Indian citizenship, in violation of the secularism enshrined in India’s constitution. On Dec. 15, Renna and hundreds of her classmates were marching and waving protest banners on the campus of Jamia Millia Islamia, a historically Muslim university, when they came under attack by police. They had avoided a barricade and taken another route “because we wanted to make it a peaceful kind of thing,” she recalls. “But what we saw next was complete brutality. Police started chasing the protesters and beating them up.”[15]
Since mid-December, demonstrations have erupted across India, in communities of all faiths. The biggest police crackdowns have occurred in predominantly Muslim areas and human rights organizations say police have used excessive force.[16]
The death toll in the worst religious violence to hit India’s capital in decades has risen to at least 37, health officials said. The violence was triggered after Muslims protesting against a discriminatory citizenship law were attacked by Hindu mobs. More than 200 people have been injured during four days of violence in Muslim-populated areas of northeast Delhi, with police accused of looking the other way as a mob on Sunday went on the rampage, killing people and damaging properties, including mosques.[17]
The deadly religious riots that have swept parts of the Indian capital are proving that women and children are often the most vulnerable victims in any conflict, writes the BBC’s Geeta Pandey in Delhi. The violence in north-east Delhi has left more than 40 people dead and the victims include both Hindus and Muslims. For the thousands of Muslim women and children left homeless, the future appears bleak.[18]
Societal violence based on religion and caste and by religiously associated groups continued to be a serious concern. Muslims and lower-caste Dalit groups continued to be the most vulnerable.[19]
There were reports by nongovernmental organizations (NGOs) that the government sometimes failed to act on mob attacks on religious minorities, marginalized communities and critics of the government. Some senior officials of the Hindu-majority Bharatiya Janata Party (BJP) made inflammatory speeches against minority communities. Mob attacks by violent extremist Hindu groups against minority communities, especially Muslims, continued throughout the year amid rumors that victims had traded or killed cows for beef. According to some NGOs, authorities often protected perpetrators from prosecution.[20]
Yet, this history of religious freedom has come under attack in recent years with the growth of exclusionary extremist narratives–including, at times, the government’s allowance and encouragement of mob violence against religious minorities–that have facilitated an egregious and ongoing campaign of violence, intimidation and harassment against non-Hindu and lower-caste Hindu minorities. Both public and private actors have engaged in this campaign.[21]
[9] With respect to the fact that the claimant is a single woman and a Muslim one who is HIV-positive, the following from the documentary evidence is of relevance:
For women living with HIV infection in India, stigma is a pervasive reality and the greatest barrier to accessing treatment, quality of life and survival.[22]
Three years after religious riots in India, Muslim women who reported being gang raped during the violence are still waiting for their cases to be investigated while facing death threats and harassment for speaking out, Amnesty International said.[23]
The police brutality gave further impetus to national protests and quietly, the women of Shaheen Bagh joined in. Today, those women have become the face of the resistance. They are also the face of the uncertainty that women across India have felt since the Modi government began updating the NRC. Their fears are not unfounded. After the implementation of the NRC in Assam, 1.9 million people were found to be lacking papers for citizenship and, according to activists, 69 percent of them were women.[24]
IndiaSpend [2] reports that single women have to “depend [on] somebody’s goodwill – in-laws, parents, brothers and sisters-in-law” in order to provide for them and their children (IndiaSpend 23 June 2018). In an article in the Hindu, an Indian daily newspaper, Sreemoyee Piu Kundu, [a columnist on sexuality and gender (IndiaSpend 23 June 2018)] who interviewed 3,000 single urban women in India, states that single women encounter “serious struggles with basic life issues such as getting a fiat on rent or being taken seriously as a start-up entrepreneur or getting a business loan or even getting an abortion” (The Hindu 29 Jan. 2018).[25]
IndiaSpend indicates that “[n]obody wants to rent to single women” and that, according to Shikha Makan, an Indian filmmaker who directed a documentary, Bachelor Girls, on the difficulties that single women face when looking for housing in Mumbai, a woman is expected to live with her father or with her spouse (IndiaSpend 23 June 2018). According to The News Minute, “a digital news platform reporting and writing on issues in India,” particularly on southern India (The News Minute n.d.), the same documentary, which tells the stories of “mobile, urban and educated” single women, describes how women may need to visit numerous apartments before securing one and that they may face additional and “often invasive” questioning during the rental process (The News Minute 3 Dec. 2016).[26]
[10] I am not making a finding that all persons who are HIV-positive necessarily face a serious possibility of persecution in India on that basis alone, nor that all Muslims necessarily face a serious possibility of persecution in India on that basis alone, nor that all single women necessarily face a serious possibility of persecution in India on that basis alone. However, given the documentary evidence, I do find that in the circumstances of this case, involving a woman who is single, a Muslim and HIV-positive, based on the cumulative effect of all three of those factors, this claimant does face a serious possibility of persecution. I further find, again based on the documentary evidence, that there is a failure of state protection.
Subjective Fear
[11] The claimant has taken several trips outside of India, prior to her journey to Canada, to countries such as Malaysia, Dubai, Germany and Switzerland. On each occasion, she returned to India without having sought refugee protection.
[12] In view of my positive credibility assessment, the claimant’s failure to seek protection prior to arrival in Canada has no negative impact on her claim, given the following jurisprudence:
It is almost foolhardy in a refugee case, where there is no general issue as to credibility, to make the assertion that the claimants had no subjective element in their fear.[27]
Nowhere did the Board member question the credibility of the applicants. Accordingly, the applicants’ testimony is presumed to be true. The explanations provided during the hearing with regard to the three grounds of concern identified by the Board member should in turn be presumed to be true unless there are clear and specific reasons for disbelieving them. This is particularly true where the Board member has not articulated any reason for rejecting the applicants’ explanations with regard to re-availment, delay in claiming and failure to provide corroborative documents on certain points … [28]
The RPD could not, in the absence of a negative general credibility finding, reasonably determine that the principal Applicant lacks subjective fear.[29]
CONCLUSION
[13] In consideration of all of the foregoing, I find that [XXX] is a Convention refugee and her claim is accepted.
[1] Exhibit 7, items 1 to 3.
[2] Ibid., items 5 and 6.
[3] Ibid., item 4.
[4] Ibid., items 8 to 13.
[5] Ibid., item 15; and Exhibit 10.
[6] Exhibit 6, item 1, “India Passes HIV/AIDS Anti-Discrimination Law but Stigma Endures”, The Sunday Morning Herald, 18 April 2017, p.1.
[7] Ibid., p.3.
[8] Ibid., p.4.
[9] Ibid., item 2, “Panel to Look Into ‘Abuse’ of an HIV+ Patient by 2 Govt Hospitals in Delhi”, Hindustan Times, 10 May 2018, pp. 6 and 7.
[10] Exhibit 6, item 3, “Denied Rights and Treatment, HIV Patients Still Fight Stigma”, Hindustan Times, 30 October 2017, p.9.
[11] Ibid., p. 10.
[12] Exhibit 11, item 2, “India’s Fight Against AIDS in Jeopardy After Modi Vots’s Cut in Social Spending”, Huffington Post, 15 July 2017.
[13] Ibid., item 6, “Stigma: The Blindspot of lndia’s HIV Epidemic”, Pulitzer Center, 13 June 2016.
[14] Ibid.
[15] Exhibit 12, item 6, “Our Democracy is in Danger: Muslims in India Say Police Target Them With Violence”, National Public Radio, 25 January 2020, p. 21.
[16] Ibid., p. 23.
[17] Exhibit 13, item 1, “People Leaving Violence Hit-Areas in Delhi: Latest Updates”, Al Jazeera, 26 February 2020, pp. 1 and 2.
[18] Exhibit 15, “Delhi Riots: Muslim Women Recall Horror of Molotov Cocktails and Arson”, BBC, 29 February 2020.
[19] Exhibit 3, National Documentation Package: India, 31 January 2020, item 2.1, “Country Reports on Human Rights Practices for 2018”, United States Department of State, 13 March 2019, section 6.
[20] Ibid., item 12.1, “International Religious Freedom Report 2018”, United States Department of State, 21 June 2019, Executive Summary.
[21] Exhibit 3, item 12.2, “United States Commission on International Religious Freedom 2019 Annual Report”, Commission on International Religious Freedom, April 2019, p. 174.
[22] Exhibit 11, item 5, “Women Living with HIV in India: Looking Up from a Place of Stigma, Identifying Nexus Sites for Change”, Insight Medical Publishing Group, 22 May 2017, p. 13.
[23] Exhibit 12, item 1, “Gang Raped Years Ago, Muslim Women in India Face Intimidation, Threats, Waiting for Legal Justice”, Global Citizen, 10 February 2017, p. 2.
[24] Ibid., item 7, “India’s New Laws Hurt Women Most of All”, Foreign Policy, 4 February 2020, p. 31.
[25] Exhibit 3, National Documentation Package: India, 31 January 2020, item 5.11, Response to Information Request no. IND106275, 3 May 2019, section 1.
[26] Exhibit 3, section 3.
[27] Shanmugarajah v. Canada (Minister of Citizenship and Immigration), [1992] F. C. J., no. 583, at paragraph 3.
[28] Sukhu v. Canada (Minister of Citizenship and Immigration), 2008 FC 427 at paragraph 26.
[29] Ramirez-Osorio v. Canada (Minister of Citizenship and Immigration), 2013 FC 461, at paragraph 46.