Category: India

Citation: 2021 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: March 10, 2021
Panel: Antoine Collins
Counsel for the Claimant(s): Yasin A. Razak
Country: India
RPD Number: TC0-05774
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX TC0-05774. Mr. XXXX you claim to be a citizen of India and is claiming refugee protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act. I have considered your testimony and the other evidence in the case and I am ready to render my decision orally.

[2]       I find that you are a Convention refugee as you have satisfied the burden of establishing a serious possibility of persecution on a Convention ground in India based on your membership in a particular social group based on your sexual orientation.

[3]       In coming to this determination I have considered the Chairpersons Guidelines, guideline 9 proceedings before the IRB involving sexual orientation and gender identity and expression.

[4]       I find that there is a nexus between the harm that you fear in India and the Convention ground of a particular social group. Therefore your case will be assessed pursuant to Section 96.

[5]       Your allegations are set out in your Basis of Claim form, which can be found at Exhibit 2. In summary, you allege fear of persecution at the hands of the Indian authorities, your family members and particularly your father and the society at large based on your sexual orientation.

[6]       I am satisfied that your personal and national identity as a citizen of India has been established on a balance of probabilities by way of your testimony and a true copy of your Indian passport found at Exhibit 1. When a claimant affirms to tell the truth this creates a presumption of truthfulness unless there is evidence to contrary. You testified in a straightforward, spontaneous and unhesitating manner and your answers to my questions that I proposed about the central aspects of your claim were detail and unrehearsed. There were no material inconsistencies in your testimony or contradictions between your testimony and the other evidence that was before me today.

[7]       Your testimony was consistent and in content and was chronological. In particular, your testimony about your identity as a gay man was detailed, natural and clear based on your own personal experiences growing up in India in a household of the Orthodox Roman Catholic faith. You testified growing up in India as an only child you tended to stay to yourself because you were shy. Your testimony was that your father did not like the way that you behaved and would scold you because of it. You were able to testify about how unhappy this made you feel growing up. Your testimony was that you had a close relationship with your mother however when asked why you did not provide a support letter from her, you indicated that individuals in the community and your family already thought that your father left her because of you and because of that you did not want to add any more stress and troubles to her life. Given your profile I take no issues with your response.

[8]       Your testimony was that growing up you did not know what your sexuality was, however, you were able to express to me when you first started having feelings for the same sex. Your testimony was that it was during your teen years and you were even able to point out a couple of actors from your country who you had a boyhood crush on. You were able to express what the social and religious views were in India regarding same-sex attraction and you testified that you did not accept these views but you kept your feelings to yourself out of fear of not knowing what might happen to you, especially since you already had a strained relationship with your father. You testified that after high school your mother suggested that you attend school abroad as it would make your life easier and you could live freely. As such you made your way to Canada on a student visa.

[9]       You’ve also provided spontaneous and straightforward testimony about your activities in Canada as far as your schooling and the renewal of your student visa. Your testimony was that you met your current partner (inaudible) in 2017 when you shared a house with him and five other individuals. Your testimony was that the two of you shared a room and you did have a crush on him but you dared not to tell him because you did not know if he was gay. Your testimony was that because you were roommates you developed a close friendship and you shared the same birthdays. You indicated that in 2019 on your birthdays you shared with him the troubles that you were having back home and that you were gay. He in tum confided in you and told you that he was gay as well and had made a refugee claim.

[10]     You testified at that point the two of you started to date. Your testimony was that (inaudible) was your first boyfriend and your first gay experience. You were able to tell me the things that the two of you did together such as walks, going to the movies and what Netflix shows that you both liked to watch, as well as you expressed elements of his personality that drew you to him. What I found compelling was your testimony about when you two are together you are happy and relieved and that now you have someone that you can talk to openly and who is there for you.

[11]     In support of your claim, (inaudible) came to testify at your hearing today and his testimony was in line with what you have alleged. You also (inaudible) of photographs which you were able to also talk about and they also collaborate what you have alleged, which can be found at Exhibit 4.

[12]     I find that you have established on a balance of probabilities that your sexuality was first brought to your attention as a teenager back in India, number one. Number two, that you never acted on such feelings in India because you were afraid. Number three, while in Canada you started a relationship with (inaudible). And number four, that you do identify as a gay man. I’ve also found on a balance of probabilities that you have established a subjective fear in India due to your sexual orientation.

[13]     The objective evidence is consistent with your accounts of fearing persecution in India. In the Supreme Court case of NAVTEJ, Sang Johar versus Union of India Supreme Court case, it determined that Section 377 of the Indian Penal Code which prohibits consensual same-sex relations was unconstitutional and a violation of international human rights obligations which were binding on India. The question addressed in this report a concern that the degree to which these principals have been implemented in society. They concluded that members of the LGBTQ community face discrimination which impedes civil, cultural, economic, political and social rights. In addition they are at a risk of violence. They encounter difficulties from both state actors and members of civil society in assessing such public services as water, sanitation, and transportation.

[14]     It is well documented in the National Documentation Package and from the country conditions and several other news articles that your counsel provided, several articles which can be found at Exhibit 5 regarding members of the LGBTQ community that they face discrimination and human rights violation in all aspects of employment including impediments with respect to education, training which is mocked by violence, bullying or harassment. It also notes that they may experience discrimination in seeking employment or lack of job security if they are employed. Harassment and arbitrary discriminatory dismissal have been identified as problems.

[15]     Members of the LGBTQ community also face discrimination and verbal or physical assaults when trying to access public spaces by the police or other authorities as well as by members of the public. There are reports of police making selective use of various laws such as begging, public nuisance, sex work or to target and harass them. They can experience problems assessing private property which is open to the public, including shopping mails, restaurants, businesses and hotels.  Discrimination can take form of evasive surveillance, charging higher prices, refusal to serve and denial of access.

[16]     Item 6.1 of the NDP indicates that there has been a surge of LGBTQ events and activities since September of 2018 legislation of the same-sex relationships. However a BBC report indicates that this does not mean that the public attitude has changed. Although gay pubs exist, patrons are at risk of being attacked in nearby streets after they leave.

[17]     Despite decriminalization, sexual minorities continue to experience violence, harassment and widespread social discrimination. One source indicates that members of the LGBT community are at risk for blackmail, rape and sexual violence. Although discrimination based on sexual orientation is prohibited in India, this does not apply to about 90 percent of the employment which is not part of the formal sector. Sexual minorities have a long way to go before their rights are fully respected. Indian laws do not protect against conversion therapy, hate crimes, incitement or discrimination in employment in the non-formal sector.

[18]     Reports state that the police use violence, abuse, harassment and threats to arrest and intimidate sexual minorities although police now receive awareness training about LGBT issues after the decriminalization, this document does not include sources which indicate how effective this has been or what changes have taken place with respect to police practices.

[19]     I find that the country conditions and the documentation regarding the situation in India regarding sexual minorities coupled with your credible declarations has led me to find that you have established a serious possibility of persecution in India based on your sexual orientation if you are to return to India. Accordingly I find that your fear has an objective basis and is well-founded.

[20]     The widespread nature and frequency of the attacks on sexual minorities described in the country conditions clearly and convincingly demonstrates that Indian authorities are either complacent or unable to prevent such events. As such there is a presumption of state protection unless the state is in a condition of complete breakdown. This presumption has been rebutted with clear and convincing evidence. Based on your personal circumstances and the fact that the state is the agent of persecution and the objective country documentation, I find that you have rebutted the presumption of state protection and that state protection would not be reasonably forthcoming or available to you in your particular circumstances.

[21]     I’ve also had an opportunity to consider whether there is an Internal Flight Alternative exists for you. The evidence suggests that there is serious possibility of persecution throughout the entire country based on your sexual orientation given the widespread attacks on the LGBT community. As the state is the agent of persecution and the area remains widespread to social discrimination against LGBTQ persons, I find that no IFA is available for you.

[22]     Having considered the totality of the evidence, I find that there is a serious possibility that you would face persecution in India based on your sexual orientation. Accordingly I find that you are a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection and therefore I accept your claim.

———- REASONS CONCLUDED ———-

Citation: 2019 RLLR 153
Tribunal: Refugee Protection Division
Date of Decision: November 4, 2019
Panel: Georgia Pagidas
Counsel for the Claimant(s): Tony Manglaviti
Country: India
RPD Number: MB7-19949
Associated RPD Number(s): MB7-19977 / MB7-19978
ATIP Number: A-2022-00978
ATIP Pages: 000027-000033

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division (the Panel) in the claim for refugee protection of XXXX XXXX (“the claimant”) and his parents, XXXX XXXX XXXX (“the father”) and XXXX XXXX (“the mother”), all citizens of India. The claimants are seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).¹

[2]       The claimant’s allegations are detailed in the narrative annexed to the Basis of Claim form (BOC).² The following is a summary of the allegations therein.

DETERMINATION

[3]       Having considered the totality of the evidence, the Panel finds that the claimants are “Convention refugees”.

ALLEGATIONS

[4]       The claimant alleges he is a gay man from India.

[5]       The claimant fears returning to his country due to his sexual orientation which has put his life and his parents’ lives in danger.

[6]       The claimant alleges that in 2013, when he went to senior secondary school, he met his partner XXXX XXXX XXXX XXXX XXXX who was already studying in this school.

[7]       The claimant’s parents learned about his sexual orientation in XXXX 2015. The claimant alleges that they were both shocked and saddened, but that they soon began to support him.

[8]       Police arrested XXXX on XXXX XXXX XXXX 2017, and he confessed about his relationship with the claimant. The claimant alleges that XXXX parents were very strict and conservative, and that they beat XXXX following his release.

[9]       On XXXX XXXX XXXX 2017, upon the complaint of XXXX parents who believed that he contributed to spoiling their child, the claimant’s father was arrested. He was detained in the police station for two days. He was forced to pay money to secure his release.

[10]  The claimant alleges that thereafter his relationship with XXXX ended. He also alleges that his father’s business had to be closed, as they were boycotted by the community.

[11]     The claimants applied for refugee status in Canada, on XXXX XXXX XXXX 2017.

Identity

[12]     The claimants’ personal and national identities are established, on a balance of probabilities, by the documentary evidence on file, specifically their passports seized by the Canadian authorities, copies of which are produced in the file.³

Credibility

[13]     In this context, the determinative issue for the Panel is whether or not the claimant has credibly established, on a balance of probabilities, that he is homosexual. On the basis of the evidence before it, the Panel finds that the claimant has established that he is homosexual.

[14]     In deciding this claim, the Panel considered the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.⁴

[15]     Testimony given under oath is presumed to be true unless there is a reason for doubting its truthfulness. In this claim, the Panel has no such reasons.

[16]     The Panel finds the claimant was credible with regards to the determinative issue of his claim. The Panel finds the claimant is credible for the following reasons.

[17]     The claimant testified at the hearing in a straightforward manner. He was detailed and open in his answers to the Panel’s questions, and at no time he did try to embellish or exaggerate his allegations as it appears in the examples below.

Discovery of Sexual Orientation

[18]     When asked about his discovery of his sexual orientation, the claimant was able to provide a great deal of detail about how he saw himself growing up. He explained that from a young age he realized that he was different when he compared himself to his peers. He felt no attraction for girls, but instead fantasized about boys. As he grew up, he was curious and searched on the internet to learn more about his homosexuality. His descriptions were sincere and believable, and his testimony was not embellished nor rehearsed. There were no discrepancies or inconsistencies in his testimony, nor were there any relevant omissions in his BOC that were not reasonably explained. As a result, the Panel finds that, on a balance of probabilities, the claimant is credible with respect to the discovery of his sexual orientation.

First Intimate Same Sex Relationship

[19]     The claimant testified that his first same-sex relationship began around 2013 in secondary school with his classmate XXXX XXXX, whom he referred to as “his partner” throughout the hearing. His description matched the information contained in his BOC. He took the Panel through the development of his relationship with XXXX, which started as friends at the end of 2013 until it became serious. The claimant testified that he became intimate with XXXX in the XXXX of 2014. He also provided details, such as how he felt both happy and shocked that XXXX accepted his first kiss and how they planned the precautions they would take to avoid raising suspicion in the public, and particularly with XXXX family. He described the emotional ties that had developed between the two of them, and how they spent hours talking in parks, doing yoga together and watching movies. There was coherency to the claimant’s oral testimony that demonstrated the claimant’s credibility. There were no discrepancies between claimant’s testimony and his BOC, nor were there any relevant omissions. As a result, the Panel finds that, on a balance of probabilities, the claimant is credible with respect to his first same-sex relationship.

Life in Canada

[20]     The claimant also testified about having a casual encounter with two other men in Canada, one of which appearing in the photos he submitted.⁵ He testified with enthusiasm that he has started organizing entertainment events for his South Asian Community in Montreal, and how he along with others are trying to find a “way to organize a gay event”.

Corroborative Oral and Documentary Evidence

[21]     When the claimant’s father was asked about the incident of his arrest on XXXX XXXX XXXX 2017, he testified in a sincere and open manner. He confirmed the allegations in the BOC narrative and he explained his problems with the police and the parents of XXXX clearly. When asked about his fear, the claimant’s father was spontaneous and sincere in expressing to the Panel his feelings of fear ever since the incidents with XXXX parents and the police occurred. He added that his fear is ongoing despite the fact that he is in Canada, because of the summons that was issued for his arrest in India. The Panel finds his testimony credible. In support of their claims, the claimants submitted a lawyer’s letter⁶, a police summons⁷, a medical report⁸ and a XXXX report⁹. The Panel finds that the claimant’s parents established that the underlying cause of their fear is related to the aforementioned events. The Panel further finds these documents credible and affords them full weight.

[22]     The claimant also provided three photographs of himself with his partner. He described in detail the context in which the pictures¹⁰ were taken and how they were taken. He also provided pictures¹¹ of himself and two gay friends in Canada that he referred to in his BOC. Again, the claimant was able to describe the context in which these photos were taken and his testimony was consistent with the allegations in his BOC. Therefore, the Panel affords full weight to these pictures.

STATE PROTECTION

[23]     The Panel finds that the claimants have rebutted the presumption of state protection with clear and convincing evidence that the Indian state would be unwilling or unable to provide them with adequate protection. The Panel took into account the substantial documentary evidence from independent and reliable sources on the situation in this country from the National Documentation Package for India.¹²

[24]     The Panel recognizes that the documentary evidence reports¹³ that same-sex consensual relations were decriminalized in India, in XXXX 2018, when the Supreme Court declared that Section 377 of the Penal Code was unconstitutional. The evidence reports¹⁴ that the decriminalization of same-sex conduct will not immediately result in full equality for the LGBT community in India. While the Supreme Court judgement held that the aforesaid reading down of Section 377 shall not lead to the reopening of any concluded prosecutions, the documentary evidence reports that it is too early to draw any conclusions for pending arrests and cases.

[25]     The summons to the claimant’s father was issued prior to the Court decision and the claimant’s name is still on file with the police. Furthermore, the documentary evidence¹⁵ confirms that violence, abuse and harassment suffered at the hands of the police still exist throughout India and the Panel therefore finds that the claimants would be at risk.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[26]     The Panel proposed Mumbai as a possible IFA for the claimants.

[27]     The Panel finds that the claimants have established that, on a balance of probabilities, they face a serious possibility of persecution in Mumbai. The Panel therefore finds that there is no viable IFA for the claimants in India.

[28]     The claimant’s father is a person of interest to the police and the principal claimant became known to them through XXXX and co-claimant’s arrests by the police.

[29]     Furthermore, the documentary evidence¹⁶ reports tenant registration is existent in Mumbai. The purpose of tenant registration is for authorities to verify the identities of the tenants and to confirm that they are not wanted criminals, terrorists or fugitives from the law.¹⁷

[30]     In view of all these particular circumstances, the Panel concludes that the claimants would face a serious possibility of persecution should they return to India and live in Mumbai.

[31]     Given that the first prong of the internal flight alternative test has not been met, there is no need to consider the second prong.

CONCLUSION

[32]     For the foregoing reasons, the Panel concludes that there is a serious possibility that the claimants would be persecuted on the basis of their membership in a particular social group, namely Indian homosexual man and family, in the event of their return to India.

[33]     The claimants XXXX XXXX, XXXX XXXX XXXXandXXXX XXXX XXXX are “Convention refugees” pursuant to section 96 of the Act. Their claims are therefore accepted.

Georgia Pagidas

November 4, 2019

¹   Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.

²   Document 2 – Basis of Claim Form (BOC).

³   Document 1 – Package of Information from the referring Canada Border Services Agency (CBSA) / Immigration, Refugees and Citizenship Canada (IRCC): Passports.

⁴   Chairperson’s Guideline 9 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant

to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017.

⁵    Document 4 – Exhibit C-6 : Pictures (in bulk).

⁶    Document 4 – Exhibit C-2 : Lawyer ‘s letter.

⁷    Document 4 – Exhibit C-5 : Summon to claimant ‘s father.

⁸    Document 4 – Exhibit C-3 : Medical report.

⁹    Document 4 – Exhibit C-7 : XXXX report.

¹⁰   Supra note 5.

^l1    Idem.

¹²    Document 3 – National Documentation Package, India, 31 May 2019 (NDP India), tab 6.1: Response to Information Request, IND106287.E, Immigration and Refugee Board of Canada, 9 May 2019.

¹³    Document 3 – NDP India, tab 6.6: Country Policy and Information Note. India: Sexual orientation and

gender expression. Version 3.0, United Kingdom, Home Office, October 2018.

¹⁴     Idem.

¹⁵     Idem.

¹⁶     Document 3 – NDP India, tab 14.8: Response ta Information Request, IND106289.E, Immigration and Refugee Board of Canada, 14 May 2019.

¹⁷     Idem.

Citation: 2021 RLLR 42
Tribunal: Refugee Protection Division
Date of Decision: May 14, 2021
Panel: Alexandre Lussier
Counsel for the Claimant(s): Deepak Pawar
Country: India
RPD Number: MC1-00105
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000089-000092

DECISION

[1]       MEMBER: I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. So, these are the reasons for the decision in the claim of XXXX XXXX who claims to be a citizen of India and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       In rendering my reasons, I have considered the Chairperson’s Guideline 9, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[3]       You alleged the following. You left India in XXXX 2017 as you were forced to hide your sexuality as a homosexual. You feared societal violence and your family’ s reproval. You came to Canada on a student visa and claimed asylum in XXXX 2019 on the basis of your sexual orientation.

[4]       In a recent amendment to your narrative, you claimed that you discovered your gender identity while you were in Canada. You alleged that you are a transgender person. That you had been hiding your true self. If you were to return to India, you fear to be killed or tortured because of your sexual orientation and gender identity.

DECISION

[5]       I find that you are a refugee pursuant to section 96 of the IRPA as there exists a serious possibility of persecution should you return to India on account of your gender identity. My reasons are as follows.

Identity

[6]       I find that your identity as a national of India is established by the passport provided.

Credibility and Subjective Fear

[7]       I note that once in Canada, you delayed for two (2) years before claiming refugee protection. However, you indicated that you came to Canada on a student visa and that you completed your studies. It was upon finishing your studies when you were faced with the obligation to return to India and to your family that you sought information about the possibility to stay in Canada.

[8]       This explanation seems reasonable in your alleged circumstances. And therefore, does not raise significant concerns with respect to subjective fear or credibility.

Credibility Other Elements

[9]       I find you to be a credible witness and therefore, generally believe what you alleged in support of your claim. You testified in a straightforward manner. And there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me that were not reasonably explained.

[10]     You testified about your realization of being a transgender instead of a homosexual in 2019 when you consulted the 519 organization. You testified about the medical treatments you are considering concerning your gender identity. You also testified about your relationship with your family and how they learned of your sexual orientation while you lived in India.

[11]     In particular, the following evidence establishes your allegations as set out above. You provided letters from friends in Canada who attest that you are a transgender. You also provided a copy of a membership card of the 519 Community Center for LGBTQ. And pictures of yourself with a boyfriend between 2019 and 2021.

[12]     After reviewing the documents, I have no reason to doubt their authenticity. When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true. Unless there are reasons to doubt their truthfulness. This is the principle established in Maldonado.

[13]     Although you had a relationship with a boyfriend for a while in Canada and had not alleged it, you explained that you thought that it would be enough to provide pictures as exhibits. I find this explanation reasonable in your circumstances and it does not raise sufficient concerns concerning your credibility.

Objective Basis

[14]     The National Documentation on file indicates the following about persecution faced by transgender persons in India. According to Amnesty International at Tab 2.2, many repressive amendments were made into laws such as the Transgender Persons Act. In December 2019 during the winter session of the Parliament, the Transgender Persons Protection of Rights Act was passed.

[15]     The Act undermines the rights of transgender and intersex persons and violates India’s international human rights obligations. And the 2014 ruling of the Supreme Court in the case of N-A-L-S-A v. Union of India. Amongst other flaws, the Act lays out vague bureaucratic procedures to be followed for legal gender recognition of the transgender persons.

[16]     Human Rights Watch agrees with the statements. Human Rights Watch states at Tab 6.1 of the National Documentation Package that the decriminalization of same-sex conduct will not immediately result in full equality for LGBT people in India. Transgender people in particular including hijra communities face discrimination in employment and housing. Human Rights Watch also notes that transgender people face discrimination in health care.

[17]     The United States of America Department of State report on Human Rights for 2020 at Tab 2.1 contains the following quote, “LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas”.

[18]     Activists reported that transgender persons continued to face difficulty obtaining medical treatment. Some police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents.

[19]     Given that there are no serious credibility issues with respect to your allegations, coupled with the documentary evidence set out before, I find that you have established a perspective risk of being subjected to hostility and outbursts of violence because of your gender identity. As well as cumulative discrimination in work and public services that become tantamount to persecution.

Nature of the Harm

[20]     I have examined your claim under section 96 of the IRPA as I conclude that the risk you described constitutes persecution based on at least one (1) of the grounds prescribed in section 96. Specifically, that gender identity has been recognized as a social group of protected Nexus in the Convention.

State Protection

[21]     I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances. Objective information on file at Tab 6.1 indicates that the attitudes and behaviour of the police is one of the biggest barriers to queer persons. Access to the justice system in India. Several people spoke to the ICJ about violence, abuse, and harassment they suffered at the hands of the police. Furthermore, in several cases, the police have refused to file complaints submitted by queer persons, owing to bias or stereotypes.

[22]     You also testified of an event in 2016 when there was an attempt to kidnap you and the police did not file your first information report.

Internal Flight Alternative

[23]     I have examined whether a viable internal flight alternative exists for you. Based on the evidence on file, I find that you face a serious possibility of persecution throughout India as LGBTI groups reportedly face widespread societal discrimination and violence throughout India.

[24]     I have considered whether a viable internal flight alternative exists for you. I find that there are no other parts of the country where you would not face a serious possibility of persecution.

CONCLUSION

[25]     In light of the preceding, I conclude that you are a refugee pursuant to section 96 of the IRPA. Accordingly, I accept your claim.

———- REASONS CONCLUDED ———-

Citation: 2021 RLLR 23
Tribunal: Refugee Protection Division
Date of Decision: December 31, 2021
Panel: Devin MacDonald
Counsel for the Claimant(s): Penny Yektaeian
Country: India
RPD Number: TC1-09714
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000112-000119

REASONS FOR DECISION

[1]     The claimant XXXX XXXX (Legal name XXXX XXXX XXXX) is a woman from India who is claiming refugee protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Act.

ALLEGATIONS

[2]     The claimant’ s allegations are detailed in her basis of claim narrative. In short, the claimant fears persecution in India from her family, and society due to her gender identity expression as a trans woman.

[3]     The claimant’s narrative describes her self-discovery process as a trans woman in India and her experience living with gender dysphoria. The claimant also outlines many instances of transphobia, homophobia, and gendered violence that she alleges to have personally experienced in India.

[4]     The claimant alleges that she entered Canada on XXXX XXXX 2018, and began to receive hormone therapy in XXXX 2018. She alleges that she did not take steps towards making an asylum claim in Canada until April 2020 because she did not have the necessary support system in place until that time and wanted to avoid remembering traumatic events from her past.

DETERMINATION

[5]     Paragraph 170(f) of the IRPA¹ provides that the Refugee Protection Division (RPD) may allow a claim for refugee protection without a hearing, unless the minister has notified the RPD of the minister’ s intention to intervene within the time limit set out in the Refugee Protection Division Rules.² Further, subsection 162(2) of IRPA³ directs each division to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. The Immigration and Refugee Board has issued Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD).⁴ The claimant’s claim was identified as one to which this process could apply. Her Certificate of Readiness was received on December 17, 2021. Having carefully considered the evidence in this case, the panel finds that it meets the criteria to be decided without a hearing.

[6]     The panel finds that the claimant is a Convention refugee according to s. 96 of the Immigration and Refugee Protection Act.

ANALYSIS

Identity

[7]     The claimant’s identity as a citizen of India is established by a certified true copy of her passport issued by Indian authorities.⁵

Nexus

[8]     The panel finds that the claim is based on the claimant’s membership in a particular social group, as the claim is based on her gender identity. As such, the claim has nexus with the Convention and is assessed according to s. 96 of the Immigration and Refugee Protection Act.

Credibility

[9]     The claimant submitted reliable documents that credibly establish that she is a trans woman.

[10]   The claimant provided a medical report, hormone prescription records, and bloodwork from her family physician.

[11]   The medical report, dated XXXX XXXX, 2021, indicates that the doctor has provided care for the claimant since XXXX XXXX, 2018. The doctor confirms the claimant’s identity as a trans woman, states that they established the diagnosis of Gender Dysphoria for the claimant over the course of two assessments in XXXX 2018 and indicates that the claimant will require lifelong hormone therapy as treatment.⁶

[12]   The prescription records included in the medical report are a printout from a :flowsheet. The indicate that the family physician has prescribed hormone medications to the claimant regularly with the earliest prescription dated XXXX XXXX 2018.⁷

[13]   The blood test results included in the medical report indicate that the claimant’s level of estradiol has increased, and level of testosterone as dropped between the first test dated XXXX XXXX, 2018, and subsequent tests.⁸

[14]   The claimant provided three internet posts from an internet forum made in 2016, which is years prior to the claimant entering Canada. In the posts, the claimant expresses her identity as a trans woman and her experience with gender dysphoria.⁹ The posts are anonymous; however, the details of the posts are consistent with the claimant’s basis of claim narrative and in conjunction with the official medical documentation, with the panel has no reason to doubt that the claimant authored the posts. The panel finds the documents reliable and probative for the purpose of establishing the claimant’s identity and gender expression.

[15]   The panel finds that the documents cited above reliably establish on a balance of probabilities that the claimant is a transwoman, that she has a diagnosis of gender dysphoria, and that she receives ongoing treatment for her gender dysphoria in the form of hormone therapy.

[16]   The claimant provided a recording of a conversation between her and her mother in Gujrati¹⁰ and a transcript of the conversation accompanied by a translator’s declaration indicating that the audio tape was translated from Gujrati to English.¹¹ The conversation concerns a specific instance of violence inflicted by the claimant’s parents onto the claimant. The documentation from mental health professionals indicates that the claimant has reported a long history of abuse.¹²

[17]   The letter from XXXX XXXX Registered Psychotherapist, indicates that at the time of letter-writing they have had eighty-seven one-hour psychotherapy sessions with the claimant and indicates that the claimant has been diagnosed with complex trauma, which is diagnosed in individuals who have repeatedly experienced traumatic events such as violence, abuse, or neglect over a sustained period of time. The author states the claimant dissociates when reminded of past abuse which results in a struggle to think or communicate clearly.

[18]   The letter is consistent with the claimant’s narrative in that her diagnosis of complex trauma is consistent with the experiences outlined in her narrative and in that the symptoms of complex trauma that the psychotherapist has noted in the claimant explain why the claimant delayed in making her claim in Canada until April 2020.

[19]   Based on the sworn statements in the claimant’s BOC narrative and the corroborating documentation, including, the claimant’s mother’s verbal confirmation of physical abuse, the panel finds that the claimant faced mistreatment including physical violence in India due to her trans identity.

[20]   The panel finds that the above facts establish a subjective fear of persecution for the claimant should she return to India.

Well-Founded Fear of Persecution

[21]   The National Documentation Package [“NDP”] indicates that the transgender community is continually harassed, stigmatize, and abused by the police, judges, their family, and society. Human rights watch indicates that transgender people face discrimination in employment and housing.¹³

[22]   Sources indicate that transgender individuals have difficulty accessing health care and face stigma and discrimination when attempting to access the care they require.¹⁴

[23]   An article, provided by the claimant from Scientific American states that transgender people are refused health care at public hospitals.¹⁵ Another article from Al Jazeera documents specific incidents of mistreatment that trans individuals have experienced in attempting to access health care in India. It mentions an individual who died while doctors could not decide whether to admit the patient into a male or female ward and mentions an individual who was not given treatment, or the anti-HIV medicine recommended to rape victims. The article states that trans patients often face derogatory remarks from hospital staff and face delay in treatment.¹⁶

[24]   NDP item 2.15 indicates that transgender persons face difficulties in finding rental housing and are often forced to live in remote slum areas, where access to water and sanitation facilities is poor. ¹⁷

[25]   NDP item 6.6 states that trans individuals are vulnerable to physical and sexual violence in their homes. When young trans persons begin to express their gender identity they are often subjected to emotional, verbal, physical and even sexual abuse. The documents also discuss mistreatment perpetrated by private actors against transgendered individuals in public spaces, ranging from widespread verbal harassment, denial of services, and including physical and sexual violence perpetuated by mobs against transgender women.¹⁸

[26]   The panel finds that the objective evidence establishes, on a balance of probabilities, that the claimants fear of persecution in India due to her identity as a transwoman is well-founded.

State Protection

[27]   Trans individuals in India are legally recognized by the Indian state as belonging to a third gender. Despite legal recognition, transgender protection laws in India are criticized for denying the right to self-identify and requiring a certificate of identity from authorities and by not offering adequate legal protection against sexual violence.¹⁹

[28]   Although the law bans discrimination, it does not define discrimination or provide for an enforcement mechanism to enforce the right to non-discrimination or provide any remedy when discrimination occurs.²⁰

[29]   NDP item 6.3 states that the systemic discrimination and violence faced by queer persons in India, and the challenges they face in accessing justice and seeking remedies for human rights violations, remain at odds with the constitutional provisions concerning right to equality, non-discrimination, freedom of expression and dignity which has been recognized as the source of transgender persons’ right to self-recognition of their gender identity by the Indian Supreme Court.²¹

[30]   Item 6.3 indicates that trans individuals face a risk from state authorities including police. Item 6.3 indicates that many transgender persons rely on sex work as a means of livelihood and that there is also a perception that transgender persons are involved in sex work, even when they may not be. The police often use provisions designed to regulate sex work against transgender persons to arrest and detain them. Likewise, the documents indicates that trans persons are targeted by anti-beggary laws and nuisance laws by police who are supposed to be serving as agents of state protection.²²

[31]   Although the NDP indicates that there are trans-specific group that focus on advocacy and support for the trans community, the evidence does not indicate that these groups function as agents of state protection transgender individuals.

[32]   The panel finds that operationally adequate state protection would not be forthcoming to the claimant in India should she return.

Internal Flight Alternative

[33]   The panel finds that the claimant is unable to relocate to another part of India as there would be nowhere in India where the claimant would be able to openly express her gender identity without facing persecution. The country evidence reveals a strong societal bias against trans woman throughout India.

CONCLUSION

[34]   Having considered the totality of the evidence in this claim, the panel finds that the claimant’s subjective fear is objectively well-founded, and that the claimant has a serious possibility of persecution upon return to India due to her membership in a particular social group. There is no viable internal flight alternative or adequate state protection for the claimant in India.

[35]   The panel finds that the claimant is a Convention refugee and accepts the claim under s. 96 of the Immigration and Refugee Protection act.

(signed) Devin MacDonald

December 31, 2021

1  Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 170(t).

2  Refugee Protection Division Rules (SOR/2012-256).

3  Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 162(2).

4 Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division, effective January 29, 2019.

5 Exhibit 1: Claim referral information from CBSA/IRCC

6 Exhibit 5: Applicant’s document package, Persona] documents, Medical report and file issued by Dr. page 7-23

7 Ibid

8 Ibid

9 Exhibit 5: Applicant’s document package, Persona] documents, P. S’s Reddit web site posts. Page 23c-23e

10 Exhibit 5: Applicant’s document package, Persona] documents, Audio transcript, at page 1b-1d

11 Exhibit 5: Applicant’ s document package, Persona] documents, Translator’ s declaration, at page 1a

12 Exhibit 5: Applicant’s document package, Persona] documents, Psychodiagnostic Evaluation at page 1-6 and Psychological assessment at page 23a-23b.

13 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.

14 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.

15 Exhibit 5: Applicant’s document package, Country Conditions, Trans and Queer people in India should demand better health care” scientificamerican.com at page 34.

16 Exhibit 5: Applicant’s document package, Country Conditions, “Indian transgender healthcare challenges” dated June 18, 2014, alzajeera.com, at pages 38-39.

17 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 2.15: United Nations Documents Related to Housing and Land Rights in India. Housing and Land Rights Network. October 2019.

18 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.6: Living with Dignity: Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India. International Commission of Jurists. June 2019.

19 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.

20 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.

21 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.3: “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity. International Commission of Jurists. February 2017.

22 National Documentation Package, India, 30 June 2021, tab 6.3: “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity. International Commission of Jurists. February 2017.

Citation: 2021 RLLR 10
Tribunal: Refugee Protection Division
Date of Decision: November 23, 2021
Panel: Lesley Stalker
Counsel for the Claimant(s): Kerry Molitor
Country: India
RPD Number: VC1-05726
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000027-000033

DECISION

[1]     MEMBER: This is a Bench Decision in the claim for refugee protection of XXXX XXXX. You are a citizen of India and are claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.

Allegations

[2]     Your claim is based on your sexual orientation. You fear persecution in India at the hands of your family, the extended Muslim community and the Indian society and police at large because of your sexual orientation or your sexual identity. Given the nature of your claim, I have considered and applied the IRB’s Chairperson’s Guideline 9 on sexual orientation and gender identity and expression, these are commonly known as the SOGIE guidelines.

Determination

[3]     I find that you face a serious risk of persecution in India because of your sexual orientation. My reasons are as follows.

ANALYSIS

Identity

[4]     I am satisfied as to your identity on the basis of the various identity documents that you have filed. These include your passport, your Aadhar or identity card, your voter card as well as other identity documents.

Nexus

[5]     As your claim is linked to your sexual identity, I find that the harm you fear has a nexus to the convention ground of particular social group. I therefore assessed your claim under Section 96 of the Act.

Credibility

[6]     The next question is whether I find your story to be credible and I do. You have provided a detailed Basis of Claim narrative which explained how you came to realize that you were not female, the sex which had been assigned to you at birth but rather were male. This created confusion for you as you tried to figure out who you were. Your cousins suggested that perhaps you were lesbian but you disagreed. You felt that you were a boy who was in a girl’s body. You could not turn to your parents or siblings for guidance or support. Your parents are devout Muslims and very conservative in their beliefs and in their cultural practices.

[7]     You described… you described your father’s efforts to control your behavior with violence, hitting you with bricks, and even administering electric shocks to punish behaviors that he deemed were inappropriate. You were able to confide in one cousin in particular, XXXX (ph) and in the woman you loved, XXXX. You described the pain you experienced when XXXX was forced to marry another man. You could never publicly declare your love for her because you were in the eyes of society a woman.

[8]     Moreover, your families would never have accepted the marriage as your family was Muslim and hers was Hindu. There were a number of times in the hearing when you became quite emotional. You described having to live a suffocated life and being trapped in a body that was not yours. You described your ongoing struggle with gender dysphoria and the pain of not being able to openly tell your family who you are. Your family expected you as a woman to behave in a certain way. They demanded that you wear the burqa as do you mother and your sisters. When you were 20 you told them that you were no longer willing to wear the burqa but this resulted in such conflict that at times you wore the burqa and took it off after leaving the home.

[9]     Your BOC and testimony reflect strong Indian cultural values relating the interaction between individuals and their families. When I asked you why you did not walk away from your family when they refused to respect your choices, you said, where would I go. Your BOC describes an incident in which you remained in the doorstep of your home throughout the night after your father had locked you out. And when I asked you why you did not simply go elsewhere, you said that you did not dare expose your parents to the shame of the rift between you and them.

[10]   When asked whether you know any transmen who were living openly in India, you said you know of two. You said their situation was somewhat unique. Their families are supportive of them and their assistance has enabled the men to survive openly. That is not the case for most transmen who did not have the support of their families. You provided a number of documents to corroborate your claim. These include, one, the detailed XXXX assessment from XXXX XXXX XXXX who diagnosed you as suffering from persistent XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX reports that you showed clinical degree of XXXX associated with memories of India and says that you are at risk of a complete XXXX collapse and suicide should you be required to return to India. Two, a letter from the ASAAP, a Toronto-based organization which assists LGBTQ persons from South Asia. This letter describes you as a valued member of their community and records your participation in various activities and services offered by the organization.

[11]   Three, a letter from XXXX, the woman with whom you had a relationship in India. XXXX says that it was dangerous for her to write the letter but felt it important to do so. She said she has known you for close to 15 years. She described you as having “a husky voice and manly personality” and said that you have always been drawn to females in a sexual manner. She says that you told her that you were a transman, a concept which was completely unknown to her. She says that the concept of transsexuality is “new in India and is regarded as a crime, disease or abnormality.” She says that your family are very religious and traditional and could never accept that you are a man who needs to change his body.

[12]   Four, a letter from your cousin XXXX (ph), who says that you were very close to each other from childhood on. XXXX (ph) says that even as a child you behaved as a boy. Neither of you was familiar with the concept of trans males at that time, but it was not a surprise to him when you told him you were in fact a boy trapped in a girl’s body. He also confirms that your family is extremely traditional and would never accept that you are not satisfied with the body that was given to you by god. And finally, you provided a letter from XXXX, a friend who is from a similar ethnic background and is like you transitioning from female to male here in Canada. Madura refers to your discussions about your gender dysphoria and your plans to begin your gender transition. I should not say to begin your gender transitions, your plans as to how you will transition.

[13]   Given your credible testimony and the corroborative documents, I accept your evidence about your gender identity. I further accept that you were born into a conservative Muslim family and that your family and the community from which you come hold very traditional notions of sex and gender. I further find that your father in particular has used violence against you and other members of the family to punish behaviors that he deems unacceptable.

Well-Founded Fear of Persecution and Subjective Fear

[14]   So having considered your evidence, I accept that you have a subjective fear of persecution including serious physical violence or death in India because of your sexual identity.

Objective Basis

[15]   The next question I must consider is whether there is an objective basis to your fear of harm, and after reviewing the country reports filed by your Counsel and the reports from the IRB’s National Documentation Package on India, I find there is. I will begin by referring to some of the changes in law affecting LGBTQ rights in India. In 2018, the Supreme Court of India decriminalized same-sex relationships and issued a judicial apology to the Indian LGBTQ community. This decision marked a significant step in the journey towards the full equality of LGBTQ persons.

[16]   Of particular relevance to the case or situation of trans persons, in 2014, the Indian Supreme Court affirmed the link between gender identity and other human rights. The court emphasized that it was the individual not the State who should determine one’s gender. This decision was followed by another in 2015, when the Delhi High Court wrote, “a transgender person’s sense or experience of gender is integral to their core personality and sense of being, in so far as I understand the law everyone has a fundamental right to be recognized in their chosen gender.” The decisions of the Indian courts are encouraging and they herald a chance in a society that has had difficulty accepting unusual or different approaches to sexuality and gender. The court decisions have had some effect.

[17]   The Immigration and Refugee Board Response to Information Request on the treatment of sexual minorities found at Tab 6.1 of the NDP says that after the decriminalization of same-sex sexual relations, there was a surge of pro-LGBTQ events and campaigns across the country. Most major cities saw Pride events taking place on a larger scale and an estimated 15000 people participated in the Queer Azadi Mumbai Pride Parade, and yet, LGBTQ persons continue to face severe discrimination and persecution on a day-to-day basis. The US Department of State report on Human Rights for 2020 found at Tab 2.1 of the NDP, says that LGBTI persons faced physical attacks, rape and blackmail as well as widespread societal discrimination and violence.

[18]   The report also say that transgender persons continue to face difficulty obtaining medical treatment and face particular challenges with the police. The IRB Response to Information Request at Tab 6.1 of the NDP similarly reports that social rejection of queer sexuality remains widespread. The RIR refers to a 2018 report of the International Commission of Jurists, the ICJ, who wrote that the “transgender community is continually harassed, stigmatized and abused by the police, judges, their family, and society.” The ICJ report of 2019 says that LGBTI persons face extensive rights violations in relation to housing and within the home.

[19]   This includes discrimination in the rental market, denial of housing, segregation into poorly resourced neighborhoods and violence and harassment from landlords, neighbors, friends, family and the police. The result is widespread homelessness. The ICJ also says that LGBTI persons, I am using the acronym the ICJ uses, says that the community faces discrimination and persecution at all stages of the employment process and this includes unequal access to educational opportunities, discrimination during recruitment and discriminatory and gender work conditions, Jack of job security and so forth. And this accords with your own account of having been fired by your employer when you revealed that you were a transman.

[20]   The ICJ report emphasizes the vulnerability of trans persons who as a result of systemic discrimination are often affectively segregated into localities that Jack basic amenities even if they have the economic capacity to afford better housing. In 2019, India’s central government passed a law which in theory is supposed to protect the rights of trans persons. However, the law has been widely condemned by human  rights organizations who note that the law denies to transgender people the right to identify their own gender or sex. Rather, trans persons must first apply for a “transgender certificate” from the district magistrate where they live. Once they have received this certificate they can then apply for a change in gender certificate.

[21]   This second certificate, the gender certificate signals to authorities that they should change the person’s gender to male or female. The problem is that the second step requires the person to provide proof of surgery issued by a hospital official to the district magistrate for a second evaluation, and the issuing official must be satisfied with the correctness of such a certificate. This puts an extraordinary amount of power with one government office to arbitrate who qualifies to be recognized as who they say they are. This process also coerces people into medical procedures that they might not want including surgery, and this is a fundamental rights violation condemned by both Indian and international jurisprudence.

[22]   There are other problems associated with the law including the fact that it guarantees trans persons the right to be free from discrimination but does not provide a definition of discrimination nor does it offer a mechanism by which trans person can enforce the rights which are on paper accorded to them. The Australian Department of Foreign Affairs and Trade report found at Tab 1.5 of the NDP says that LGBTI persons lack protection, have poor health and education (unintelligible 00:18:48) basic tolerance, abuse and violence on a day-to-day basis. The report also indicates that police still use nuisance laws to arrest gay men while there are some gay evenings or nights in a few bars, there are no truly safe spaces for gay and bisexual men.

[23]   The articles that I have referred to come from the Board’s National Documentation Package on India. You and your Counsel have also provided many articles which document the widespread and deep hostility towards the LGBTQ community generally and towards transmen in particular. The articles say that transmen are a minority within a society which is already… within a sector of society which is already marginalized. These men, transmen are confined to the shadows of society. The articles also record the murder of a number of trans persons who were assassinated in public settings because of their gender nonconformity. So far the reports to which I referred speak about the attitudes of Indian society generally. You have said that you also fear the reaction of your own family. Of course, your family belonged to Indian society at large but they are a particular group within that society.

[24]   They come from a conservative branch of Islam and would consider the notion of a trans man to be affront to themselves, to their community and to their god. When I asked you what your family would do if they learned that you are trans, you became very emotional. When you could speak you said you could not even think about it. You said that your dream is to be open with your family at some point but it is unclear how that will happen. The reports in the NDP confirm that honor-based violence within the family is still very common in India.

[25]   It occurs throughout the country and is often unreported or is reported as suicides or accidents and here I am referring to the report in the NDP found at Tab 5.10. And so when I consider the evidence cumulatively, I find that if you were to attempt to live openly as a trans man in India, you would face violence, harassment and discrimination in virtually all aspects of your life, from housing to services to employment, and I find that the cumulative impact of this violence and discrimination amounts to persecution. Moreover, I am satisfied that you face a serious risk of honor-based violence or killing at the hands of your father and other members of the conservative Muslim community from which you come. I therefore find that you are at risk, you face a serious possibility of persecution in India on a basis of your sex and gender.

State Protection

[26]   The next question is whether you could seek State Protection against the persecution you fear and I find you cannot. As described above, the law changes articulated by the courts have failed to make significant inroads against the firmly entrenched negative perceptions of society towards those who come from diverse or nonconforming sexual orientation. The RIR at Tab 6.1 says that many police officers continue to hold outdated and negative views that affect their ability to provide adequate protection and the police are in fact known agents of persecution. Police still use nuisance laws to harass, manipulate and bribe the trans men whose family are not aware of the events or sexual identity and there are reports of police committing crimes against gay and trans men and the news and threats of arrests did discourage the victims from reporting the incident. Moreover, it is not uncommon for the police to refuse to investigate or even accept a complaint from an LGBTQ individual. In short, I find that you would not be able to avail yourselves of the police protection in the event that you were threatened, attacked or subject to other forms of violence or harm because of your sexual orientation and identity.

Internal Flight Alternative

[27]   I have also considered whether you might have a viable Internal Flight Alternative in India. I find you do not. Anti-LGBTQ attitudes are deeply entrenched across the country. The discrimination appears to be Jess severe in major cities and yet social contempt for members of the LGBTQ community is prevalent throughout India and I find on a balance of probabilities that if you were to live openly as a trans man as is your right, you would face severe problems in finding housing and employment, both of which are essential to survival and as noted above, it appears to be possible for some members of sexual minorities to survive if they have the support of family and independent means but that is not your situation. And I therefore find that you would not have a viable IFA.

CONCLUSION

[28]   Based on the totality of the evidence before me, I find you are a Convention Refugee. I therefore accept your claim.

——– REASONS CONCLUDED ——–

Citation: 2020 RLLR 159
Tribunal: Refugee Protection Division
Date of Decision: February 4, 2020
Panel: Jack Davis
Counsel for the Claimant(s): Packialuxmi Vasan
Country: India
RPD Number: TB9-19705
Associated RPD Number(s): TB9-19057
ATIP Number: A-2022-00210
ATIP Pages: 000136-000143

REASONS FOR DECISION

Introduction

[1]       These are the reasons for the decision in the claims for refugee protection made by XXXX XXXX XXXXand XXXX XXXX XXXX. The claimants are both citizens of India and are living together in Canada as a same-sex common law couple.

[2]       The claimants testified in a straightforward manner, without any contradictions or inconsistencies when their testimony is compared to the written narratives contained in their Basis of Claim (BOC) forms. There were also no implausibilities.

[3]       Most significant, however, was the demeanour of the claimants at this hearing. Both claimants exhibited their love for each other in a physical manner that was quite evidently spontaneous and genuine. Their displays of emotion during the hearing occurred at points in the evidence where it was reasonable to expect same and again these displays were transparently honest.

[4]       Such being the case, I have no hesitation in accepting the claimants’ evidence as being most credible and trustworthy. They have provided, in their BOC narratives, quite a litany of difficulties that they experienced in India due to their sexual orientation, and I accept same as being the truth.

[5]       It is also worth noting that the claimants were able to submit various documents corroborating various aspects of their claim.¹

[6]     The question before me, then, is whether or not, as a gay couple, the claimants face a serious possibility of persecution if returned to India.

Objective Basis

[7]       The documentary evidence that is before me indicates the following:

Human rights issues included reports of arbitrary killings; forced disappearance; torture; rape in police custody; arbitrary arrest and detention … Violence and discrimination based on religious affiliation, sexual orientation, gender identity, and caste or tribe, including indigenous persons, also occurred.²

Lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons faced physical attacks, rape, and blackmail. LGBTI groups reported they faced widespread societal discrimination and violence … Some police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents.³

Same-sex orientation is seen socially, and within the close familial context, as being unacceptable in India. Circumstances for same-sex oriented males are improving, but progress is slow.⁴

[8]       The above documentary evidence would appear to indicate that a same-sex couple such as the claimants would indeed face more than a mere possibility of persecution if returned to India.

[9]       In September 2018, the Supreme Court of India struck down a provision that criminalized gay sex. Does this mean that now the claimants would not face a serious possibility of persecution if returned to India? The documentary evidence indicates the following:

LGBT groups in cities across the country have been celebrating the ruling as the “beginning of a new era”. But the reality for members of the LGBT community in rural India is different. They believe it will take a long time to change regressive attitudes towards them.⁵

LGBT activists say that despite the Supreme Court decriminalising homosexuality in 2018, members of the community still face discrimination. Speaking to the New Indian Express, C Moulee, founder of Queer Chennai Chronicles, said, Every queer person faces harassment. Section 377 may have been struck down, but it remains a judgment. It has not changed people’s mentality or out everyday lives.⁶

Still, however historic the ruling of the court, considered a liberal counterweight to the conservative politics sweeping India, gay people here know that their landscape remains treacherous. Changing a law is one thing – changing deeply held mind-sets another … Many Indians are extremely socially conservative, going to great lengths to arrange marriages with the right families, of the right castes. Loved ones who try to rebel are often ostracized. Countless gays have been shunned by their parents and persecuted by society.⁷

On Thursday, conservative Christians, Muslims and Hindus, who often find themselves at odds with one another, blasted the ruling as shameful and vowed to fight it. “We are giving credibility and legitimacy to mentally sick people,” said Swami Chakrapani, president of All India Hindu Mahasabha, a conservative group.⁸

On September 6, the Supreme Court decriminalized same-sex relations in a unanimous verdict. Activists welcomed the verdict but stated it was too early to determine how the verdict would translate into social acceptance, including safe and equal opportunities at workspaces and educational institutions.⁹

In September 2018, the Supreme Court ruled that the use of Section 377 of the Indian Penal Code to ban homosexual intercourse was unconstitutional. However, discrimination continues against LGBT (lesbian, gay, bisexual, and transgender) individuals, including violence and harassment in some cases.¹⁰

The Indian press agency Press Trust of India (PTI) reported in April 2019 that the Supreme Court dismissed a review plea seeking various civil rights for the LGBTQ community: The plea had sought civil rights of the [LGBTQ] community as part of the basic human rights and said that these rights were not addressed in the apex court’s judgement on Section 377 of the [penal code] which had criminalised consensual gay sex. It had sought recognition of their rights to same-sex marriages, adoption, surrogacy, IVF [in vitro fertilization] and directions so that the community can serve openly in the army, navy and air force. (PTI 16 Apr. 2019)¹¹

Since the decriminalization [of same-sex sexual relations], there has been a surge of pro­ LGBT events and campaigns across India… Despite … small steps, there’s “still a need for acceptance” … “Many people still have the mentality that homosexuality is wrong,”

…. The change in law does mean “many lesbian and gay people are starting to disclose their sexuality to their parents … [b]ut there’s a double standard. Some people will accept having LGBT friends but they won’t accept their relatives who come out.¹²

… activists stated that it was “too early [after decriminalization of same-sex sexual relations] to determine how the verdict would translate into social acceptance, including safe and equal opportunities at workspaces and educational institutions” (US 13 Mar.

2019, 48). Similarly, Human Rights Watch states that “[t]he decriminalization of same-sex conduct will not immediately result in full equality for LGBT people in India … ¹³

ILGA’s 2019 report indicates that there is no protection for sexual minorities in India, either in the constitution, in terms of broad protection, in employment, against hate crimes, or against incitement…¹⁴

The attitude and behavior of the police is one of the biggest barriers to queer persons’ access to the justice system in India. Several people spoke to the ICJ about the violence, abuse and harassment they suffered at the hands of the police. Furthermore, in several cases, the police have refused to file complaints submitted by queer persons owing to bias or stereotypes… [q]ueer people’s trust in the police is further eroded by the frequency of their negative interactions with police, for instance, when attempting to register complaints regarding violence and other crimes against them at the hands of private individuals. The police’s refusal to file such complaints has a seriously detrimental impact on queer persons’ access to justice and redress.¹⁵

[10]       The foregoing evidence makes it clear that, while the striking down of Section 377 of the Indian Penal Code is clearly a step in the right direction, much remains to be done. The ruling does not, of and by itself, change the attitude of large segments of the Indian population. Regressive attitudes, shunning, violence, and harassment persist notwithstanding this Supreme Court ruling.

[11]     I therefore find that it is premature to find that the repeal of Section 377 constitutes a durable change in conditions in India such that a same-sex couple such as the claimant would not face more than a mere possibility of persecution. It is simply too early to make that determination. I am guided by the following jurisprudence:

[25]    I have concluded that the Board erred in law by not applying the proper test for a consideration of changing country conditions. I have also concluded that the Board, in finding that the changes in circumstances were of an enduring nature, made a finding which it could not possibly have made based on the evidence before it. In other words, this finding was made without consideration of the material before it.

[26]    In so concluding, I have adopted as the proper test of changing country conditions the one proposed by James Hathaway in The Law of Refugee Status, Butterworths, Toronto, 1991, at pages 200-203. Hathaway writes as follows:

First, the change must be of substantial political significance, in the sense that the power structure under which persecution was deemed a real possibility no longer exists. The collapse of the persecutory regime, coupled with the holding of genuinely free and democratic elections, the assumption of power by a government committed to human rights, and a guarantee of fair treatment for enemies of the predecessor regime by way of amnesty or otherwise, is the appropriate indicator of a meaningful change of circumstances. It would, in contrast, be premature to consider cessation simply because relative calm has been restored in a country still governed by an oppressive political structure. Similarly, the mere fact that a democratic and safe local or regional government has been established is insufficient insofar as the national government still poses a risk to the refugee.

Secondly, there must be reason to believe that the substantial political change is truly effective. Because, as noted in a dissenting opinion in Ruiz Angel Jesus Gonzales, “…there is often a long distance between the pledging and the doing…”, it ought not to be assumed that formal change will necessarily be immediately effective:

… there were free elections [in Uruguay] on March 1, 1985 that put an end to 12 years of military government. According to [the U.S. Country Reports], the reestablishment of democracy is complete. I may be permitted to express doubts that in a period of one or two years it would be possible to recover completely from the abuses of a military dictatorship. Good intentions may have existed, of course, but I refuse to believe that there were no chance mishaps.

The formal political shift must be implemented in fact, and result in a genuine ability and willingness to protect the refugee. Cessation is not warranted where, for example, de facto executive authority remains in the hands of the former oppressors:

The facts that there were “above board” elections in Peru in 1980-81, which sent members of various parties and factions to the parliament, does not prove that the applicant does not have a well-founded fear of returning to his country, which is still, as far as executive authority is concerned, a military dictatorship which tolerates no opposition. It is just another case of old wine in new bottles.

Nor can it be said that there has truly been a fundamental change of circumstances where the police or military establishments have yet fully to comply with the dictates of democracy and respect for human rights:

It was argued that the applicant need no longer be afraid of returning to his homeland as there has been a change in the government since he left. The applicant, however, adduced evidence to show that although the government has changed, members of the Peruvian police and armed forces are still violating human rights and as yet do not appear to be under control by the new government.

In other words, the refugee’s right to protection ought not to be compromised simply because progress is being made toward real respect for human rights, even where international scrutiny of that transition is possible. Two mid-1989 judgments of the Immigration and Refugee Board, relating to Poland and Sri Lanka respectively, demonstrate an appropriate concern to see evidence of the real impact of a formal transition of power:

…Solidarity calculates that the Communist Party directly or indirectly controls about 900,000 appointments…the nomenklatura casts its own shadow. In other words, changing the government does not [necessarily] change much. The panel is of the view that the claimant’s fear that the changes in Poland are still too uncertain is supported by the documentary evidence.

Although it is alleged that the scale of military confrontation between the Indian Peacekeeping Force and the Tigers has diminished in recent months, there is still an intense rivalry between the Tamil militant groups for the control of the territory and the population. We agree with the points made by counsel, that the normalization process has not yet achieved political stability and peace for Sri Lanka.

Third, the change of circumstances must be shown to be durable. Cessation is not a decision to be taken lightly on the basis of transitory shifts in the political landscape, but should rather be reserved for situations in which there is reason to believe that the positive conversion of the power structure is likely to last. This condition is in keeping with the forward-looking nature of the refugee definition, and avoids the disruption of protection in circumstances where safety may be only a momentary aberration.¹⁶ [emphasis added]

[12]     In view of all of the foregoing, I find that there is a failure of state protection in India for a same-sex couple such as the claimants,¹⁷ that they do face a serious possibility of persecution if returned to India, and that there is not viable internal flight alternative available to them.

Subjective Fear

[13]     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.¹⁸

CONCLUSION

[14]     In consideration of the foregoing, I find that XXXX XXXX XXXXand XXXX XXXX XXXX are Convention refugees and their claims are accepted.

(signed)           Jack Davis

¹ Exhibits 5, 6, 7; and Exhibit 8, pp. 1 to 34.

² Exhibit 3, National Documentation Package: India, 31 May 2019, item 2.1, “Country Reports on Human Rights Practices for 2018”, United States Department of State, 13 March 2019, Executive Summary.

³ Ibid., section 6.

⁴ Ibid., item 6.6, “India: Sexual Orientation and Gender Expression”, United Kingdom Home Office, October 2018, paragraph 2.4.14.

⁵ Exhibit 4, “What it Means to be Gay in Rural India”, BBC, 6 September 2018, p. 8.

⁶ Ibid., “Not My Fault I Was Born Gay: 19-Year-Old Commits Suicide Over Homophobia”, India Today, 9 July 2019, p. 15.

⁷ Exhibit 4, “India Gay Sex Ban is Struck Down. ‘Indefensible’, Court Says”, The New York Times, 6 September 2018, p. 18.

⁸ Ibid., p. 19.

⁹ Exhibit 3, National Documentation Package: India, 31 May 2019, item 2.1, “Country Reports on Human Rights Practices for 2018”, United States Department of State, 13 March 2019, section 6.

¹⁰ Ibid., item 2.6, “Freedom in the World 2019”, Freedom House, 2019, section F4

¹¹ Ibid., item 6.1, Response to Information Request IND106287, 9 May 2019, section 1.1.

¹² Ibid., section 2.1.

¹³ Exhibit 3, section 2.1.

¹⁴ Ibid., section 3.1.

¹⁵ Ibid., section 3.2.

¹⁶ Mahmoud v. Canada (Minister of Employment and Immigration), [1993] F.C.J. no. 1442, at paragraphs 25 and 26.

¹⁷ Supra., footnotes 3 and 15

¹⁸ Shanmugarajah v. Canada (Minister of Citizenship and Immigration), [1992] F. C. J., no. 583, at paragraph 3.