Category: India

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.

Citation: 2020 RLLR 19
Tribunal: Refugee Protection Division
Date of Decision: February 17, 2020
Panel: Marlene D.M. Hogarth
Counsel for the Claimant(s): Ian D Hamilton
Country: India
RPD Number: TB8-27230
ATIP Number: A-2021-00540
ATIP Pages: 000118-0000123

REASONS FOR DECISION

[1]       [XXX] is a citizen of India. He claims refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

ALLEGATIONS

[2]       The claimant alleges the following.

[3]       The claimant was in a secret homosexual relationship with [XXX] from [XXX], 2013 until he left India in [XXX] 2018.

[4]       The claimant is afraid to return to India because the police learned of his homosexuality and informed his wife. She stated she would divorce him.

[5]       The claimant further fears returning to India because members of a political party want to kill him because he did not leave the ADMK party. The claimant fled to Malaysia in 2014 and worked there for two years. He returned to his village in [XXX] 2016 when he thought he would be safe.

[6]       In [XXX] 2016, the ADMK leadership asked him to begin recruiting new members as it was safe for him to work for the party. When the head of the ADMK died, the party split into two different groups. The claimant worked for one faction. [XXX], a member of the other faction, disrupted the claimant’s meeting and when the claimant refused to disband the meeting, he was hit on the head with a bat. [XXX] threatened his life and left.

[7]       The claimant moved to Ootty and worked there from [XXX] 2018 until [XXX] 2018. On [XXX], 2018, the police visited the claimant’s home looking for him. When he returned he was to go to the police station because [XXX] told the police that the claimant threatened his life and the police wanted to question him. The claimant’s wife advised the claimant not to return home as it was not safe.

[8]       The claimant found an agent who arranged a visa and the trip to Canada where he could ask for refugee protection.

[9]       The claimant left on [XXX], 2018 and claimed refugee protection on October 26, 2018.

[10]     After the claimant was in Canada, his friend [XXX], his secret gay lover in India, spoke out at a political meeting criticizing the party for abusing the claimant. [XXX] was arrested on [XXX], 2018 for committing hate crimes against the public. The police seized [XXX] cell phone and found compromising photos of the claimant and [XXX] together.

[11]     The police informed the claimant’s wife that her husband was engaged in homosexual activities and the police wanted to talk to him about it. The claimant left India to travel to Canada to make a claim for refugee protection on October 25, 2018.

DETERMINATION

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

[13]     Before making its decision, the panel took into consideration the SOGIE guideline 9.²

ANALYSIS

[14]     The issues are credibility, state protection and internal flight alternative.

Identity

[15]     The claimant’s identity as a citizen of India was established by his testimony and the certified copy of his passport, held by CBSA.³

Nexus

[16]     The claimant is afraid he will be killed by members of the splinter group of the ADMK party and he is afraid he will be harmed because he is a homosexual. The claim is based on political opinion and membership of a particular social group. Therefore, the claim will be assessed according to ss. 96 and 97(1) of IRPA.

[17]     The panel will analyze the claim for protection because the claimant is a homosexual.

Credibility

[18]     The claimant testified that when he married his wife, he considered it a love marriage, not one that was arranged. However, he began to fantasize about having a sexual relationship with a man. When he met [XXX], they began a relationship that lasted until the claimant came to Canada. The claimant had to hide his true sexual orientation as, at that time, it was against the law. This law was changed on September 6, 2018.

[19]     The claimant did not have problems in India because of his sexual orientation. He never revealed that he was gay except to [XXX], his partner in 2013. He lived “in the closet” and continued his relationship with [XXX] in secrecy while he continued his married life. His wife did not learn of his sexual orientation until the claimant was in Canada. She no longer speaks to him and has moved the family to her father’s home.

[20]     The claimant is afraid to go back to India and live his life as a gay man. The claimant testified that while living in Canada, he has learned that people accept his homosexuality and he can walk freely with his partner. He cannot do that if he returns to India.

[21]     The panel finds the claimant testified in a straight forward manner; there were no embellishments nor any attempts to exaggerate the allegations during the oral testimony. He testified that he does not consider himself bisexual; he is gay. He is only interested in men. The claimant noted that he has a partner whom he met when he was volunteering at the [XXX] 2019 Gay Pride Parade. They entered into a sexual relationship in [XXX] 2019 and have been together since then. His partner was at the hearing and acted as a witness. His partner’s sworn testimony confirmed the evidence given by the claimant. Therefore, the panel accepts that the claimant is gay and is presently in a homosexual relationship and finds the claimant to be a credible witness.

[22]     The law made it legal to be a homosexual in India in late 2018, however, according to the evidence, the general public have not accepted such relationships. The documentary evidence⁴ states, “Lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons faced physical attacks, rape and blackmail. LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas…” Some police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents. Further documentary evidence⁵ indicates that although a landmark decision was made by the Indian Supreme Court, the discrimination against people based on their sexual orientation has not ended. The Board’s evidence⁶ indicates, “[t]he attitude and behaviour of the police is one of the biggest barriers to queer person’ access to the justice system in India”. They suffer violence, abuse and harassment at the hands of police and police have refused to file complaints by queer persons. The panel finds that based on all of the evidence, the attitudes remain the same despite the change in the law. The laws might be in place and mechanisms of protection for homosexual persons, however, the panel finds that at this particular time they are not effective. Therefore, there is no state protection available and since the negative societal attitudes against homosexuals are prevalent throughout India there is no viable internal flight alternative available to the claimant at his particular time.

[23]     Therefore, the panel finds that based on the evidence, including counsel’s submissions, the claimant would face a serious possibility of persecution throughout India.

CONCLUSION

[24]     For the foregoing reasons, the panel concludes that the claimant is a Convention refugee pursuant to ss. 96 of the Immigration and Refugee Protection Act.

[25]     The Refugee Protection Division accepts his claim.

(signed)           Marlene D.M. Hogarth

February 17, 2020

¹ Immigration and Refugee Protection Act, (S.C. 2001, c. 27).
² Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, May 2017
³ Exhibit 1
⁴ Exhibit 3; 2.1
⁵ Exhibit 3; 6.6
⁶ Exhibit 3; 6.1

Citation: 2020 RLLR 8
Tribunal: Refugee Protection Division
Date of Decision: June 25, 2020
Panel: Georgia Pagidas
Counsel for the Claimant(s): Odette Desjardins
Country: India
RPD Number: MB8-01694
Associated RPD Number(s): MB8-01304
ATIP Number: A-2021-00540
ATIP Pages: 000050-000059

REASONS FOR DECISION

DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division (the Panel) in the claim for refugee protection of [XXX] (“the Principal Claimant”) and his partner [XXX] (“the Co­ Claimant”), both 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]       In deciding this claim, the Panel applied the Chairperson’s Guideline 9 on Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.²

DETERMINATION

[3]       The Panel finds that the Claimants are “Convention refugees” pursuant to section 96 of the Act and accepts their claims, for the following reasons.

ALLEGATIONS

[4]       The Claimants’ allegations are detailed in their Basis of Claim (BOC) forms, their narratives³ annexed thereto which are identical in substance and only adjusted to the first person where applicable, and their statement update. The following is a summary of the allegations therein.

[5]       The Principal Claimant is from [XXX], in the state of Haryana, India. The Co-Claimant is from [XXX], in the state of Haryana, India. They allege that they are and have been in a same-sex relationship since [XXX] 2014. They fear returning to India because of their sexual orientation.

[6]       They were arrested by the police and were released on the payment of bribes with warnings to never be together again.

[7]       They fear that, should they return to India, they will be arrested and abused, and possibly killed by the police, society or their respective parents who are all against them.

ANALYSIS

Identity

[8]       The Claimants’ personal and national identity as citizens of India are established, on a balance of probabilities, by the documentary evidence on file, including a copy of their Indian passports.⁴

Nexus

[9]       The Claimants’ allegations establish a nexus to a Convention ground of particular social group, specifically homosexual men. The Panel has, therefore, analyzed the claim pursuant to section 96 of the Act.

Credibility

[10]     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.

[11]     The testimony of the Claimants was straightforward, detailed, and sincere. The Claimants were spontaneous in their answers, and the Panel did not find that they tried to embellish their allegations during their testimony. The Claimants answered clearly and openly to the questions that were asked by the Panel and their counsel. Their allegations were coherent and plausible based on the documentary evidence.

[12]     The Panel found the Claimants to be credible as analyzed in the examples hereinafter.

Testimony of Principal Claimant

Discovery of Sexual Orientation and First Relationship

[13]     When asked about his discovery of his sexual orientation, the Principal Claimant was able to provide a great deal of detail about how he saw himself growing up. He explained that from the age of 14, he realized that he was different when he compared himself to other boys. For instance, the boys in his class only wanted to talk about girls during the lunch break. He testified that, “from inside he preferred men more and he was afraid why he felt like that (sic)”. Asked if any of the boys in school knew about how he felt he replied, “those kinds of things were not spoken about (sic)”.

[14]     The Claimant testified that his first intimate same-sex relationship was with the Co­ Claimant. He testified that prior to that he would just hang around men, talking closely to them and “sometimes touching”. He testified that it was only when he met the Co-Claimant in the beginning of [XXX] 2014 that he felt he could have a full relationship with another man.

[15]     He testified that they met while playing [XXX]. They exchanged eye contact, but it was only the day after when the coach called them in for a briefing that the Co-Claimant approached him, asked for his name and told him, “your game is as good as how good you look (sic)”. They started talking; he enjoyed that and found him very wise. The Principal Claimant took the Panel through the development of his relationship with the Co-Claimant, which started with a friendship, playing [XXX] and training together, then three weeks later came the intimacy and the emotional commitment.

[16]     When asked how he and the Co-Claimant spent their time together, the Claimant testified that most of the time they stayed in the Co-Claimant’s room; sometimes they would go very far to a neighbouring village 20 kilometres away from theirs. Otherwise, they did not go out very much because they were afraid someone would see them and they did not know of places where other gay men socialized, because it was considered a sin. He added that when they did go out, they did not hold hands nor look each other in the eyes so as not to raise suspicion.

Testimony of the Co-Claimant

[17]     The Panel also asked the Co-Claimant numerous questions about his sexual orientation and his relationship with the Principal Claimant. He answered all questions clearly and without hesitation. He described his relationship with the Principal Claimant in a spontaneous manner. When asked what drew him to the Principal Claimant, he said he liked his eyes and he was a nice person. When asked what were his expectations from this relationship, he testified that they already lived together and in future they want to marry, get a house and live a good life. The Panel saw glimmers of emotion and happiness as he was testifying about his relationship.

[18]     When asked what would happen to him should he return to India, he testified that he came to Canada to save his life. If he returns to India, he knows about the law, but society doesn’t change and police are corrupt: the next time they arrest the Claimants, they will formally issue a summons and they will have to pay even more money to be released.

[19]     The Panel finds that the amount of detail provided by the Co-Claimant could only be provided by a man who is genuinely in a relationship with another man and who lived these experiences. There was coherency to the Claimants’ oral testimonies that demonstrated the Claimants’ credibility. There were no discrepancies between the Claimants’ testimonies and their BOCs, nor were there any relevant omissions. As a result, the Panel finds that, on a balance of probabilities, the Claimants are credible with respect to their same-sex relationship.

Incidents

[20]     When asked about the one event that made them fear for their life and leave India, the Principal Claimant testified that it was on [XXX], 2016, when a police officer “caught them red-handed (sic)”. The Panel asked the Principal Claimant to explain what he meant. He provided the Panel with tremendous amount of detail about the incident and its aftermath. He explained that the police officer was a neighbour of his with whom he shared a common wall. He testified that the Co-Claimant often came to visit him and he would take precautions by ensuring that the police officer was at work and by locking his door. On that particular day, the officer came home very early: “it was roughly 12h30pm and he saw that the Principal Claimant’s door was ajar (sic)”, and he walked in and saw the Claimants together in an intimate position.

[21]     The Panel asked how the police officer could access his room apartment. The Principal Claimant was able to situate the Panel by describing the layout of the two apartments and their proximity. When asked how the police officer reacted, he testified that he started to beat them with his baton. He specified that most police officers are not in uniform, but they always have their baton with them which is what he beat them with.

[22]     The Panel asked if the Claimants were arrested by the officer. The Principal Claimant replied “no”, but added that he did not allow them to leave and he called other policemen who came and took them to the police station. When asked what happened at the station, he testified in a sincere and open manner without hesitating or exaggeration. He confirmed the allegations in the BOC narrative. He explained that he was separated from the Co-Claimant and was tortured by the police, with the village Panchayat present who insisted that the police teach him a lesson. He got released on payment of a bribe by his father. Then 84 villagers got together and took the decision to take his life, “because they have the authority (sic)”. His family blamed the Co-Claimant for enticing their son.

[23]     When asked about his fear, the Principal Claimant was spontaneous and sincere in expressing to the Panel his feelings of fear ever since these incidents occurred. He added that his fear is ongoing despite the fact that he is in Canada, because the Panchayat is a member of the 84 Khap Panchayat and his [XXX], with whom he is still in touch and who lives in another village, informed him that the members of the Khap Panchayat and the police are looking for him all around.

[24]     The Panel notes that the Principal Claimant was very emotional and shaking when describing the aforesaid incidents. The Panel noted that the Co-Claimant extended his hand to provide him with support and he explained to the Panel that the Principal Claimant has still not been able to overcome these traumatic experiences and is being followed by a physician for stress. The Panel noted a tenderness and deep caring in the Co-Claimant’ s testimony and action of support which is a further testament to the realness of the Claimants’ relationship.

[25]     Overall, the Claimants’ ability to provide so much detail on the allegations already contained in their BOCs leads the Panel to conclude that they genuinely experienced all the above incidents.

[26]     There was an openness and spontaneity to the Claimants’ testimonies that demonstrated the Claimants’ credibility. There were no relevant inconsistencies between their narratives in their BOCs and their testimonies at the hearing that were not reasonably explained.

[27]     As a result, the Panel finds, on a balance of probabilities, that the Claimants are credible with respect to the aforementioned incidents and the resulting difficulties they experienced.

[28]     Given the objective country evidence hereinafter discussed, the Panel finds that their fear is objectively well-founded.

Corroborating Documentary Evidence

[29]     The Claimants provided documentation corroborating their allegations, the most important of which are an order issued by the village Panchayat to kill the Principal Claimant⁵, an order issued by the village Panchayat to socially boycott the Principal Claimant and his family⁶, a letter of support by [XXX]⁷, the Claimants’ gay friend with first-hand knowledge of their relationship, numerous pictures⁸ of the Claimants alone in personal moments, in gay clubs with their gay friend [XXX] and others, and at home together with friends celebrating their birthdays, and a medical certificate and prescription for stress from the Principal Claimant’s physician, submitted post-hearing and accepted by the Panel.⁹

[30]     For the aforementioned reasons, the Panel finds that the Claimants have established their allegations, on a balance of probabilities.

State Protection

[31]     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.¹⁰

[32]     The Panel recognizes that the documentary evidence reports¹¹ that same-sex consensual relations were decriminalized in India, in September 2018, when the Supreme Court declared that Section 377 of the Penal Code was unconstitutional. The evidence reports¹² that the decriminalization of same-sex conduct will not immediately result in full equality for the LGBT community in India. While the Supreme Court judgment 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.

[33]     The orders by the Khap Panchayat against the Principal Claimant and the Claimants’ arrests occurred prior to the Court decision, and the Claimants’ names are still on file with the police. Furthermore, the documentary evidence¹³ confirms that violence, abuse and harassment   of homosexuals suffered at the hands of the police still exist throughout India and the Panel therefore finds that the claimants would be at risk.

[34]     Moreover, the objective evidence on the powers of Panchayats and Sarpanches¹⁴ confirms that though it is the “responsibility of a district-level bureaucrat who is appointed from above” to work in close cooperation with the police, “if, however, a sarpanch has acquired considerable informal power and influence, then she or he may in practice strongly influence the behaviour of the police”.

[35]     Further, according to objective evidence, corruption remained a significant problem within the Indian police force¹⁵ as confirmed by the credible evidence of the Claimants that they had to pay the police bribes to be released.

[36]     Under the above circumstances, the Panel finds that the police would not protect the Claimants, on a balance of probabilities. Moreover, the Claimants would be putting their lives and physical security in danger by even approaching the authorities to ask for protection.

Internal Flight Alternative (IFA)

[37]     The Panel proposed Mumbai as a possible IFA for the Claimants.

[38]     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.

[39]     The Claimants are both persons of interest and known to the police through their arrests and the orders of the Khap Panchayat. While the evidence does confirm there is no national police¹⁶ in India, the police do have the ability to track people through the “Criminal Tracking Network and Systems” (CCTNS) database, which is shared by 36 out of 37 states, and is enabled in 13,439 out of 15,398 police stations.¹⁷ The Principal Claimant’s credible testimony is that the police and the members of the Khap Panchayat are still looking for him.

[40]     Moreover, the documentary evidence¹⁸ reports that tenant registration is existent in Mumbai. The evidence specifies that the purpose of tenant registration is not only for the authorities to confirm that tenants are not wanted criminals, terrorists or fugitives from the law, but also “to get a history of the person”.¹⁹

[41]     Furthermore, both Claimants were firm about their fear of being beaten, humiliated, harassed and sexually attacked by the police, society and their families should they return to live in India. They testified that they would have to live in hiding. Their fear is confirmed by the above cited evidence and the citation below²⁰, which confirms that there is still violence and discrimination by members of the community against persons who are homosexual:

“Stereotypes about the LGBT community are widespread and pervasive, and it is these stereotypical perceptions which are responsible of the hatred, violence and discrimination which LGBT persons face on a day to day basis”.

[42]     In addition to the aforementioned, it is well established in law that the possibility of IFA is not viable if the person has to live in hiding.

[43]     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 or any part of the country.

[44]     Given that the first prong of the IFA test has not been met, there is no need to consider the second prong. The Panel, therefore, finds that there is no viable IFA for the Claimants in India.

CONCLUSION

[45]     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 homosexual men, in the event they return to India.

[46]     The Panel finds that [XXX] and [XXX] are “Convention refugees” and therefore accepts their claims.

(signed)           Georgia Pagidas

June 25, 2020

¹ Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.
² 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.
³ Document 2 – Basis of Claim Form (BOC); Document 4 – Exhibit C-1: Updated statement.
⁴ Document 1 – Package of information from the referring Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC): Passports.
⁵ Document 4 – Exhibit C-2: Order to kill issued by Village Panchayat [XXX] (Haryana).
⁶ Document 4 – Exhibit C-3: Order to socially boycott issued by Village Panchayat [XXX]
(Haryana).
⁷ Document 4 – Exhibit C-4: Letter of support by [XXX].
⁸ Document 4 – Exhibit C-5: Pictures, in bulk.
⁹ Document 4 – Exhibit C-9: Medical certificate and prescription for stress from Principal Claimant’s physician.
¹⁰ 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.
¹¹ 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.
¹² Ibid.
¹³ Supra, note 10.
¹⁴ Document 3 – NDP India, tab 9.4: Response to Information Request, IND102791.E, Immigration and Refugee Board of Canada, 17 April 2008.
¹⁵ Document 3 – NDP India, tab 10.10: Country Policy and Information Note. India: Actors of Protection. Version 1.0, United Kingdom, Home Office, January 2019: paras 4.1.1 and 5.2.5.
¹⁶ Supra, note 11, para 4.4.1.
¹⁷ Document 3 – NDP India, tab 14.8: Response to Information Request, IND106289.E, Immigration and Refugee Board of Canada, 14 May 2019
¹⁸ Ibid.
¹⁹ Ibid.
²⁰ Document 3 – NDP India, tab 6.2: Decriminalising the Right to Love: Navtej Singh Johar v. Union of India. State-Sponsored Homophobia 2019. 13th Edition, International Lesbian, Gay, Bisexual, Trans and Intersex Association, Arvind Narrain, March 2019.

Citation: 2019 RLLR 137
Tribunal: Refugee Protection Division
Date of Decision: August 21, 2019
Panel: A. Green
Counsel for the Claimant(s): James Gildiner
Country: India
RPD Number: TB8-24395
ATIP Number: A-2021-00256
ATIP Pages: 0000112-000116

DECISION

[1]       MEMBER: I’ve had an opportunity to consider your testimony and the all the other evidence before me and I am now rendering my oral decision. You will be provided with a transcript of my decision which I reserve the right to edit.

[2]       The claimant [XXX] claim is a citizen of India who seeks refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.

[3]       As I stated I’ve not only considered your testimony and the other evidence before me I’ve also considered the chair person’s guideline 9 with regards to the proceedings before the Immigration and Refugee board involving sexual orientation and gender identity and expression.

[4]       I’ve also considered the information on the situation in your country of origin India found in the boards national documentation package as well as in the information provided by counsel in Exhibit 5.

[5]       The details of the allegation on which you relying can be found in your basis of claim form Exhibit 2. In summary the claimant is a twenty two year old gay man who was born in India on the [XXX] of [XXX]. The claimant hails from a high cast family in India and social standing is important.

[6]       Growing up the claimant experienced homophobia from his family and society. He wrote in his narrative and testified about the fact that he was constantly bullied. He also wrote about the fact that he was admonished for being too feminine. His family denied his sexuality, they tried to change the way he walked and talked, limited his hand jesters and he also expressed that his father still thinks there’s something wrong with him mentally and physically.

[7]       The claimant was also verbally, physically and sexually abused and harassed since a young age because of his sexual orientation.

[8]       On [XXX] 2015 the claimant came to Canada to study at the [XXX]. He has not returned to India since that time.

[9]       In 2016 the claimant met a man with whom he had a relationship and eventually married. The relationship later broke down but during that relationship the claimant developed the courage to come out to his parents about his sexual orientation. They threatened to cut him off financially and eventually did which prevented the claimant from pursuing his studies.

[10]     In 2018 the claimant learned from a friend about the refugee protection process and filed a refugee claim at the end of September 2018.

[11]     On the basis of your membership in a particular social group that is your status as a gay man. The panel finds that you have established that you face a serious possibility of persecution for convention ground pursuant to Section 96 of the Immigration and Refugee Protection Act.

[12]     I find that the treatment that you experienced as a gay man in India including family rejection, harassment and social ostracism cumulatively amounts to persecution.

[13]     In terms of your personal identity I find on a balance of probabilities that you are a national of India, this was established by your sworn testimony and a certified copy of your passport issued by the Republic of India found in Exhibit 1.

[14]     In regards to your sexual orientation I find that you have established your profile as a gay man. You gave extremely credible testimony regarding this. I believe your story regarding your experiences in India with your family and with society in general. You testified in a straightforward manner, you answered questions without exaggeration or embellishment and your oral testimony was consistent with the allegations provided in your basis of claim form narrative and consistent with the information on the situation in your country of origin.

[15]     In regards to subjective fear I do note that there was a delay in claiming is somewhat lengthy delay considering that you came to Canada in 2015 and only filed your claim in 2018. I do note however that you had a valid student permit at the time that you filed your claim and you did provide an explanation for the delay which I accept and so I draw no negative inference.

[16]     In regards to the objective basis for your fear Item 2.1 of the national documentation package for India the latest version dated March 2019 indicates that lesbian, gay, bisexual, transgender and intersex persons faced physical attacks, rape and blackmailing in India. LGBTI groups reported they face widespread social discrimination and violence and that in fact some police committed crimes against LGBTI persons and use the threat of arrest to coerce victims not to report the incidents. This is consistent with the information found in Item 6.1 of the national documentation package as well as the information provided by your counsel in Exhibit 5.

[17]     I do note that consistent with the information provided in September of 2018 same sex sexual acts were decriminalized in India, however neither same sex marriages nor civil unions are recognized in the country.

[18]     6.1 states that in spite of the fact that same sex relations have been decriminalized there’s still a need for acceptance, many people still have the mentality that homosexuality is wrong. The change in law does not mean that people in the LGBTI community are starting to disclose their sexuality especially to their parents because this is still a problem in India.

[19]     In regards to the fact that violence and discrimination exist it indicates that in spite of the fact that decriminalization has taken place of same sex relations some sexual and gender minorities still face violence and harassment in India. This is also consistent as I said with the information provided by your counsel in Exhibit 5 and its also consistent very much with your evidence as to what you believe would happen to you in spite of the fact that same sex relations have now been decriminalized in India.

[20]     I conclude based on my review of the documentary evidence that your fear of persecution in India due to your sexual orientation has an objective basis.

[21]     In regards to whether or not you would receive adequate state protection I take into consideration Guideline 9 which says that even though there have been small steps in the law it doesn’t mean that you would have adequate state protection in your country of origin. In fact Item 2.1 yes indicates that even though activists welcomed the verdict in of September 2018 they believe it is still too early to determine how the verdict would translate into social acceptance or into safe and equal opportunities for LGBTI persons.

[22]     Also Item 6.1 indicates that a report from 2017 states that obstacles for justice (ph) for sexual minorities in India is still an issue because of the attitude and behaviour of the police, viewed as one of the biggest barriers to LGBTI persons accessing justice in India. It indicates that there is violence, abuse and harassment suffered at the hands of the police in India and that in several cases the police have refused to file complaints submitted by members of the LGBTI community due to bias or stereotypes.

[23]     This is also consistent as I stated before with Item 2.1 which indicates that some police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents.

[24]     Based on my review of the documentary evidence I find that adequate state protection would not be reasonably forthcoming to you in India and that you have rebutted the presumption of state protection. Likewise I’ve considered the documentary evidence when looking at internal flight alternative.

[25]     I’ve also considered your own testimony where you expressed that as someone who’s not considered the standard heterosexual male and as someone who bend the gender quite often and in the manner in which you express yourself you would not be accepted in Indian society and so I’ve taken that into consideration and I find that you have no viable internal flight alternative that you would not be safe in any area of the country because you would not be able to live openly as a gay man without fear of harassment and violence.

[26]     So in conclusion I find that you have established the presence of subjective fear, that you do have an objective basis of that fear, that you face a serious possibility of persecution in India.  I therefore accept your claim pursuant to Section 96 of the Immigration and Refugee Protection Act. Good luck to you.

———- REASONS CONCLUDED ———-