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.
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