Citation: 2020 RLLR 29
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2020
Panel: Lesley Stalker
Counsel for the Claimant(s): Bashir A Khan
Country: India
RPD Number: VB9-06130
Associated RPD Number(s): VB9-06155, VB9-06156
ATIP Number: A-2021-00540
ATIP Pages: 000174-0000181
DECISION
[1] MEMBER: These are the reasons for decisions in the claims of [XXX], her son [XXX] and her minor daughter [XXX]. The claimants are citizens of India and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. At the outset of the hearing, I confirmed the designation of the principal claimant, Ms. [XXX], as the designated representative for her minor daughter. The associated claimant, Ms. [XXX] son turned 19 on [XXX] the [XXX], 2020 and therefore does not require a designated representative. In considering the claims of the principal claimant and the minor claimant, I have considered and applied the Chairperson’s Guideline 4 on female refugee claimants fleeing gender-based persecution.
[2] In considering the claim of the associated claimant, I have considered and applied Chairperson’s Guideline 9 proceedings involving sexual orientation and gender identity and expression. I also considered Chairperson’s Guideline 3 on procedural and evidentiary issues relating to child refugee claimants when assessing the claim of the minor claimant. Immediately prior to the hearing, counsel applied to admit a report from Dr. [XXX], a Winnipeg based [XXX] who specializes in [XXX], [XXX]. Her report included an apology from the [XXX] for her delay in finalizing the report. I admitted the report into evidence pursuant to Rule 36(4) on the basis of its relevant and probative value in interpreting cultural attitudes towards widows and sexual minorities in India. At the outset of the hearing, the principal claimant-, no pardon me-, at the outset of the hearing, the associated claimant and the minor claimant waived their right to be present throughout the entire hearing and were excused from the hearing room during the testimony of the principal claimant.
[3] This was done so that the adult femal-, female claimant could testify more freely about her experiences after the death of her husband. Similarly, when the associated claimant was ready to testify, the adult female claimant and the minor claimant left the room so he could speak more freely. The claimants had an observer in the hearing, he left at a sens-, sensitive point in the adult femal-, female claimant’s testimony and remained outside the room for the rest of the hearing.
Allegations
[4] The claimants’ allegations are set out in the Basis of Claim forms. In essence, Ms. [XXX], the adult female claimant fears that she will continue to be assaulted and threatened by people on the basis that she’s spurned the advances of a [XXX]-, [XXX]. Mr. [XXX] also wants the land that the adult female claimant and her son inherited from her husband after his death. She also fears that her status as a wis-, widow leaves her vulnerable to being ostracized, demeaned and sexually assaulted should she attempt to relocate within India. The associated claimant fears persecution or harm in India on the basis of his sexual orientation. The minor claimant fears that as a teenage girl without a father or other male relative in India to protect her, she is vulnerable to sexual violence as well as other forms of violence.
Determination
[5] I find that the adult female claimant is a Convention refugee on the basis of her gender and her status as a window-, widow. I find that the associated claimant is a Convention refugee on the basis of his membership in a particular social group, namely young gay men in India. I find that the minor claimant is a Convention refugee on the basis of her membership in a particular social group, namely girls without fathers or other adult male protection.
ANALYSIS
Identity
[6] The identity of the three claimants as nationals of India has been established by the testimony of the adult female claimant and by the claimants’ passports, certified true copies of which are on file.
Credibility
[7] The adult female claimant and the associated claimant both testified at the hearing. I found them to be credible witnesses. The adult female claimant was somewhat hesitant in her testimony, a fact which I attribute to shyness and cultural factors. She was emotional when speaking about the death of her husband and about the distress and shame she felt at different incidents in the intervening years. The associated claimant was also credible. He spoke freely and openly and with passion about his sexual identity. He described his long awareness of being different, the taunts and bullying to which he was subjected in India, his initial loneliness in Canada and the warmth he feels at having felt-, found an LGBTQ community into which he has been accepted. There were no material inconsistencies in the testimony of the claimants or contradictions between their testimony and the other evidence before me.
[8] The claimants filed a number of documents to corroborate their claims. These include a sworn statement from the adult female claimant’s parents-in-law who attest that their son was fatally injured by [XXX]. The deponents say that they had accompanied the adult female claimant to the police to file a complaint with the attack on the son but the police refused to investigate. The deponents attribute this fact to [XXX] connections and wealth. They also confirm that after their son’s death, [XXX] and his cohort continued to target the adult female claimant knowing that they could do so with impunity. That after [XXX] months of threats and harassments, the adult female claimant moved to her parent’s home with her children but she was targeted there as well.
[9] The adult female claimant’s parents also filed a sworn statement which contains similar information to that provided by her parents-in-law. They say that [XXX] and his cohort came to their home in [XXX], [XXX] [XXX], to threaten, harass and assault the adult female claimant. As a result, the parents kept their door locked at all times and their daughter lived, “like a prisoner” in their home. Other documents include a brief medical letter which confirms a scar on the adult female claimant’s leg and the First Information Report relating to an-, at-, an attack on the three claimants in 2017. Finally, the claimants filed a letter from [XXX] in Winnipeg, an organization which describes itself as a support service for two spirit LGBTQ people who are arriving from around the world. The letter confirms that the associated claimant has attended the drop-in program at [XXX] and is in daily contact with the author of the letter. I note that the claimants’ accounts are generally consistent with the IRB’s National Documentation Package on India which will be addressed in greater detail below. Having found the claimants to be credible witnesses and having regard to the corroborative evidence before me, I accept the allegations as set out in their BOCs.
Nexus
[10] In order to find that the claimants are Convention refugees, I must be satisfied that they have established a well-founded fear of persecution because of their race, religion, nationality, membership in a particular social group or political opinion. In Ms-, in the present case, Ms.-, the adult female claimant’s fears relate at least in part to her refusal to marry [XXX], her husband’s murderer. As such, I find that she has established a connection to a particular social group namely her gender and her status as a widow. I find that the associated claimant’s claim has a Nexus to the Convention ground of particular social group, namely gay men and I find that the minor claimant’s claim has a Nexus to the Convention ground in particular social group namely girls under the age of majority who Jack adult male protection.
[11] I will turn first to the adult female claimant’ s claim. I find on a balance of probability that she would be-, that she faces a serious risk of persecution should she return to India. My reasons are as follows. She’s a 41-year-old woman who was born in the Punjab region of India. She has some high school education but has never worked outside the home. When she was 21, she married [XXX]. [XXX] and his father owned a small farm on which they grew wheat, rice and other crops. In keeping with tradition, the adult female claimant moved into the home that [XXX] shared with his parents. In a village about 30 minutes away from Ms. [XXX]-, the adult female claimant’s home village of [XXX], [XXX]. In 20-, 2006, [XXX] was beaten to death by his cousins [XXX] and his brother.
[12] [XXX] grievance with [XXX] was two-fold. First, he wanted to marry the adult female claimant himself. He had asked her to leave [XXX] and to marry him but she had refused. Secondly, he wanted [XXX] farm for himself. After her husband passed away, the adult female claimant went to the police to file a report but the police refused to take action. The adult female claimant attributes this to the fact that [XXX] is wealthy, is politically well connected and likely bribed the police. At the time of [XXX] death, the farm was in the name of his father. [XXX] father told the adult female claimant that he was worried that if something happened to him, someone else would seize the land. As I understand it, [XXX] father prepared a document which transfers ownership of the land to the adult female claimant and the associated claimant but has a continued right to occupy and use the land during his lifetime.
[13] After her husband’s death, the adult female claimant continued to live with [XXX] parents. She says that she was repeatedly threatened and harassed by [XXX] and his supporters who believed that they had successfully got away with murder and could continue their pursuit of the adult female claimant as well as the land that they believed she now owned. After two months of threats and harassment, the adult female claim-, claimant moved from her in-law’s home to that of her parents in the hope of eluding [XXX] and his associates. The adult female claimant says that she rarely left the home. A fact which was re-iterated in the statements filed by her parents and her parents-in-law. She says that she endured several sexual assaults. She also says that she and her children were beaten in 2001 and 2017 by men who demanded that she comply with [XXX] demands. On each occasion, she filed a police report but the police refused to-, to take action.
[14] Although the adult female claimant’s-, I’m sorry scratch that. During his testimony, the associated claimant said that he wanted to share an incident that he believed his mother would not have volunteered. He said that approximately 5 years ago, he went to a playground. His mother was alone in the house. When he returned, two men wearing turbans and having shawls over their faces were leaving the house. He found his mother in her room crying. He said her hair was messed up and her clothing was tom. When she-, he asked what had happened, she begged him to leave her alone. They have not spoken about this incident. He believes that something bad happened to her but that her sense of shame prevented her from talking about it with others or indeed from sharing it with me.
[15] I find on a balance of probabilities that [XXX] and his cohort will continue to target Ms. [XXX] as retribution for his-, her spurning his offer of marriage and in his quest for ownership of the land. I find that Ms. [XXX] is not in a position to sell the land given that the legal documents which may have transferred title to her, stipulate that the original owners, her parents-in-law have the right to use and to live on the farm until they die. As such, it is not a simple matter of the adult female claimant simply surrendering or relinquishing the land.
State Protection
[16] The question then becomes whether the adult female claimant can obtain protection from Indian authorities against the threats and assaults by [XXX]. I find she cannot. She has sought state protection with the help of her parents-in-law and her own parents on numerous occasions. On each occasion, the police failed to take action. The US Department of State report for 2018 found that the Immigration and Refugee Board National Documentation Package Tab 2.1 confirms that police in India are understaffed, under-resourced, undertrained and overburdened. Police failed to respond effectively, particularly when it comes to crimes against women. The Bertelsman Stiftung Index on political transformation at Tab 4.9 of the NDP reports that in general, underprivileged groups are particularly affected by the limited enforcement of protection laws and by the extremely slow progre-, process of the judicial system.
[17] De facto, disadvantaged social groups do not enjoy equal access to justice. That same report goes on to say that violence and discrimination against women remain significant issues meaning that they are one of the disadvantaged groups who do not have meaningful access to justice. Dr. [XXX], who’s report I referred to above states that it is particularly difficult for widows to obtain state protection. She cites a prominent human rights lawyer in Delhi as saying, “If you are a woman in distress, the last thing you want to do is go to the police.” She quotes another victim as saying-, she quotes a victim as saying, “If you have money or connections, you can get justice, if you don’t, forget it.”
Internal Flight Alternative for the Adult Female Claimant
[18] The next question is whether the adult female claimant might get away from the problems she has experienced by moving to another part of India. This is known as internal flight alternative or IFA. The IFA test is two prongs. For the first, I must be satisfied that there’s no serious possibility of persecution in the proposed IFA. The second prong requires that I consider whether it is objectively unreasonable for the claimant to seek refuge in the proposed IFA. In the current case, I find that [XXX] and his cohort are unlikely to find the adult female claimant in the proposed IFA. I should note that I had proposed New Delhi as a potential internal flight alternative. However, I find it is objectively unreasonable to expect the adult female claimant to relocate to New Delhi or indeed anywhere else in India due to the stigmatization and marginalization that she would face as a widow with limited education and no work experience.
[19] The National Documentation Package says that-, reveals that women in India are exposed to a continum-, continuum of violence throughout their life cycle as some observers have put it from the womb to the tomb. Within a culture of patriarchy, discrimination and violence against women, women who attempt to set up independent households fare particularly poorly. The IRB’s response to information request at Tab 5.1 states that single women, a category that embraces widows as well as divorced women and women who have never married have to depend on someone’s good will, whether it be that of their in-laws, their parents, their brothers and sisters-in-law to provide for them and that they encounter serious struggles with basic life issues. The RIR states that nobody wants to rent to single woman-, women because a woman is expected to live with her father or her spouse. There are an estimated 10 to 15 thousand homeless women in Delhi. Home Jess woman are subject-, subject to constant violence, sexual assaults and murder from passers by and even from police and they Jack access to essential public services.
[20] Delhi is increasingly perceived as being the most unsafe city in India for women. Nearly 73% of women in Delhi say they do not feel safe in their own se-, surroundings and report to feeling unsafe all of the time and for this, I refer to the IRB report at Tab 5.2 of the NDP. Now, I recognize some of the factors that would make it-, that I have referred to may not apply to an affluent, educated or cosmopolitan woman from a major urban center but this is not the adult female claimant’ s situation. She is marginally educated. Comes from a farming background and has never held a paying job. Moreover, she does not have those relatives with whom she can live outside her home region. Based on the evidence before me, I find on a balance of probabilities that the conditions the adult female claimant would face should she attempt to relocate to New Delhi could jeopardize her life and her safety. I therefore find that she does not have a viable internal flight alternative within India.
[21] I now turn to the claim of the associated claimant. I find that he has established a well-founded fear of persecution for reason of his sexual orientation. He testified that he realized he was gay from an early age. He began to apply makeup when he was 5 or 6 and would talk to girls about his dreams of marrying a boy. He says he was taunted and bullied by boys in the school who attacked him in the washroom and in the playground. He says that his mother asked him if he was gay while they were still in India. He says he initially denied this but then admitted it. He said she broke down upon hearing this. She said they were already vulnerable because of her status as a widow and she asked him not to tell him anyone about his sexuality. The adult female claimant had previously testified that she realized that her son was gay in 2015. She feared for her son ‘s safety because India is not safe for gay people. She says it has-, has a been a huge relief for both her son and for herself that he can finally be open about his sexuality without fear of harm.
[22] Even in the safety of Canada, she has not told her sister with whom she lives about her son’s sexuality. When asked why she-, is so concerned, she says that she believes that Punjabi society will blame her for her son’s sexuality because she had to raise him alone as a single parent after her husband was murdered. The associated claimant says that he follows news about treatment of members of the LGBTQ community in India. He says that the laws may have changed, same-sex relationships are no longer criminalized under the law but that societal attitudes have yet to shift. The NDP confirms that there are changes relating to the situation in-, of sexual minorities in India. In September 2018, in the decision of Johar, J-O-H-A-R, the Indian Supreme Court declared that the provisions of the crim-, penal code which criminalized consensual same-sex relations were unconstitutional. The decision was ground breaking. The question however, is whether it is resulted in changes on the streets which are meaningful, effective and enduring.
[23] The decision will undoubtedly change the shape of India in the years to come but the question is not whether the associated claimant may be able to live there safely in 5 or 10-years time but whether he can express himself fully now and avail himself of meaningful protection. The US Department of State report at Item 2.1 of the NDP says that people in the LGBTI community-, LGBTQ community continue to face physical attacks, rape and blackmail. The UK Home Office report on sexual minorities in India which was released in October 2018 and can be found at Tab 6.4 of the NDP reports that many religious organizations including Hindu, Christian and Muslim groups are up in arms about the Johar decision. An IRB Response to Information Request on the treatment of sexual minorities found at Tab 6.1 of the NDP quotes the ILGA for the proposition that Indian courts have taken positive steps to protect gay and lesbian couples. Overall, however, the ILGA says there is no protection for sexual minorities in India, either in the constitution in terms of broad protection or in employment or against hate crimes or incitement.
[24] Dr. [XXX] also provides interesting incites. She quotes a student activist as saying that the ideology of marrying a woman havening-, having children is deeply rooted in Indian society and that this attitude places LGBTQ persons on the periphery of a society that enforces social rules with threats and violence. She notes that law enforcement only rarely prosecuted gay men when Section 377 of the Indian Penal Code was still enforced. That is because most enforcement was provided by societal policing. She notes the International Commission of Jurists findings about violence and discrimination against sexual minorities and states that the associated claimant could be subject to anti-gay honor abuse in India. In this she is referring to recent-, research that says that in collectivist societies such as India where homosexuality is considered dishonorable, homosexuals are at great risk of violence and death. In sum, I find the law has changed but is not yet sufficiently entrenched that a young man can assert his identity freely and openly without a risk of occurring hate crimes. As such, I find the associated claimant has established a well-founded fear of persecution on the basis of his identity as a gay man.
State Protection and Internal Flight Alternative for the Associated Claimant
[25] I find that the associated claimant has rebutted the presumption of adequate state protection in India. The res-, IRB Response to Information Request quotes the International Commission of Jurists for the proposition that the attitude and behaviour of the police is one of the biggest barriers to queer persons access to the justice system in India. In several cases, the police refused to file complaints submitted by queer persons owing to bias or stereotypes. Several people have spoken about violence, abuse and harassment that they suffered at the hands of the police. So queer people’s trust in the police is further eroded by the frequency of their negative interactions with the police, reducing the likelihood that they will seek protection. I further find that the associated claimant cannot avail himself of an internal flight alternative in India because the social distrust and loathing of gays extends across the country. The evidence indicates that LGBTQ communities are developing and they’re growing bolder in some cities, however, these communities are relatively small. I find that in all the circumstances, it would be objectively unreasonable to expect a person as young and vulnerable as the associated claimant to relocate to New Delhi or elsewhere in India.
[26] Finally, I turn to the claim of the minor claimant. She is a 16-year-old girl. She no longer has a father. She says that she was attacked by [XXX] children throughout her schooling and by his goons in the market place in 2011 and again in 2017 shortly before her flight from India. The country reports in the National Documentation Package lead me to conclude that the minor claimant, a girl without a father or other close male relative in India to assist and protect her, faces a serious possibility of sexual violence. And for here, for this proposition, I turn to the UK Home Office report found at Tab 5.9 of the NDP which says that discrimination against women remains a major issue in India. Especially in the still extremely patriarchal north, women tend to be discriminated against from the outset in their families. With poor families, this means worse access to food and sanitation. Some substantial progress has been made as far as access to education is concerned but India’s female labor force participation rate has steadily declined. The report continues that central to the problem of gender-based violence is that Indian men and women have been socialized to believe that men’s dominance over women is normal and acts of women-, violence against women are justified.
[27] The UK Home Office refers to findings of the UN Human Rights Committee Special Rapporteur that says that sexual violence including rape is widespread across the country and perpetuated-, perpetrated in public and private spheres. There is a general sense of insecurity for women in public spaces especially in urban settings. Women are easy targets of attack including sexual violence whether it yu-, involves using public transportation or sanitation facilities or on the way to collect wood or water. The report continues that many victims of sexual violence carry a deep sense of shame which is further exacerbated by the stigma and exclusion-, exclusion they experience, especially from family members and the community. The Home Office report also refers to the UN Special Rapporteur’s Observation that economic develop in India has bypassed women who continue to struggle at subsistence levels and this too increases their marginalization.
[28] I have already addressed the reasons that I find that the adult female claimant cannot avail herself of an internal flight alternative in India and I find that the same reasons apply to the situation of the minor claimant. I find therefore that the minor claimant is unlikely to receive adequate state protection from the police and that the risk of sexual violence extends across the country. This forecloses the possibility of an internal flight alternative.
CONCLUSION
[29] Based on the above analysis, I conclude that [XXX], the adult female claimant is a Convention refugee. I find that [XXX] is a Convention refugee based on his identity as a gay man. I find that [XXX] is a Convention refugee based on her membership in a particular social group namely, girls without fathers or other adult male protection. I accept your claims.
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