Citation: 2019 RLLR 153
Tribunal: Refugee Protection Division
Date of Decision: November 4, 2019
Panel: Georgia Pagidas
Counsel for the Claimant(s): Tony Manglaviti
Country: India
RPD Number: MB7-19949
Associated RPD Number(s): MB7-19977 / MB7-19978
ATIP Number: A-2022-00978
ATIP Pages: 000027-000033
REASONS FOR DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (the Panel) in the claim for refugee protection of XXXX XXXX (“the claimant”) and his parents, XXXX XXXX XXXX (“the father”) and XXXX XXXX (“the mother”), all citizens of India. The claimants are seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).1
[2] The claimant’s allegations are detailed in the narrative annexed to the Basis of Claim form (BOC).2 The following is a summary of the allegations therein.
DETERMINATION
[3] Having considered the totality of the evidence, the Panel finds that the claimants are “Convention refugees”.
ALLEGATIONS
[4] The claimant alleges he is a gay man from India.
[5] The claimant fears returning to his country due to his sexual orientation which has put his life and his parents’ lives in danger.
[6] The claimant alleges that in 2013, when he went to senior secondary school, he met his partner XXXX XXXX XXXX XXXX XXXX who was already studying in this school.
[7] The claimant’s parents learned about his sexual orientation in XXXX 2015. The claimant alleges that they were both shocked and saddened, but that they soon began to support him.
[8] Police arrested XXXX on XXXX XXXX XXXX 2017, and he confessed about his relationship with the claimant. The claimant alleges that XXXX parents were very strict and conservative, and that they beat XXXX following his release.
[9] On XXXX XXXX XXXX 2017, upon the complaint of XXXX parents who believed that he contributed to spoiling their child, the claimant’s father was arrested. He was detained in the police station for two days. He was forced to pay money to secure his release.
[10] The claimant alleges that thereafter his relationship with XXXX ended. He also alleges that his father’s business had to be closed, as they were boycotted by the community.
[11] The claimants applied for refugee status in Canada, on XXXX XXXX XXXX 2017.
Identity
[12] The claimants’ personal and national identities are established, on a balance of probabilities, by the documentary evidence on file, specifically their passports seized by the Canadian authorities, copies of which are produced in the file.3
Credibility
[13] In this context, the determinative issue for the Panel is whether or not the claimant has credibly established, on a balance of probabilities, that he is homosexual. On the basis of the evidence before it, the Panel finds that the claimant has established that he is homosexual.
[14] In deciding this claim, the Panel considered the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.4
[15] Testimony given under oath is presumed to be true unless there is a reason for doubting its truthfulness. In this claim, the Panel has no such reasons.
[16] The Panel finds the claimant was credible with regards to the determinative issue of his claim. The Panel finds the claimant is credible for the following reasons.
[17] The claimant testified at the hearing in a straightforward manner. He was detailed and open in his answers to the Panel’s questions, and at no time he did try to embellish or exaggerate his allegations as it appears in the examples below.
Discovery of Sexual Orientation
[18] When asked about his discovery of his sexual orientation, the claimant was able to provide a great deal of detail about how he saw himself growing up. He explained that from a young age he realized that he was different when he compared himself to his peers. He felt no attraction for girls, but instead fantasized about boys. As he grew up, he was curious and searched on the internet to learn more about his homosexuality. His descriptions were sincere and believable, and his testimony was not embellished nor rehearsed. There were no discrepancies or inconsistencies in his testimony, nor were there any relevant omissions in his BOC that were not reasonably explained. As a result, the Panel finds that, on a balance of probabilities, the claimant is credible with respect to the discovery of his sexual orientation.
First Intimate Same Sex Relationship
[19] The claimant testified that his first same-sex relationship began around 2013 in secondary school with his classmate XXXX XXXX, whom he referred to as “his partner” throughout the hearing. His description matched the information contained in his BOC. He took the Panel through the development of his relationship with XXXX, which started as friends at the end of 2013 until it became serious. The claimant testified that he became intimate with XXXX in the XXXX of 2014. He also provided details, such as how he felt both happy and shocked that XXXX accepted his first kiss and how they planned the precautions they would take to avoid raising suspicion in the public, and particularly with XXXX family. He described the emotional ties that had developed between the two of them, and how they spent hours talking in parks, doing yoga together and watching movies. There was coherency to the claimant’s oral testimony that demonstrated the claimant’s credibility. There were no discrepancies between claimant’s testimony and his BOC, nor were there any relevant omissions. As a result, the Panel finds that, on a balance of probabilities, the claimant is credible with respect to his first same-sex relationship.
Life in Canada
[20] The claimant also testified about having a casual encounter with two other men in Canada, one of which appearing in the photos he submitted.5 He testified with enthusiasm that he has started organizing entertainment events for his South Asian Community in Montreal, and how he along with others are trying to find a “way to organize a gay event”.
Corroborative Oral and Documentary Evidence
[21] When the claimant’s father was asked about the incident of his arrest on XXXX XXXX XXXX 2017, he testified in a sincere and open manner. He confirmed the allegations in the BOC narrative and he explained his problems with the police and the parents of XXXX clearly. When asked about his fear, the claimant’s father was spontaneous and sincere in expressing to the Panel his feelings of fear ever since the incidents with XXXX parents and the police occurred. He added that his fear is ongoing despite the fact that he is in Canada, because of the summons that was issued for his arrest in India. The Panel finds his testimony credible. In support of their claims, the claimants submitted a lawyer’s letter6, a police summons7, a medical report8 and a XXXX report9. The Panel finds that the claimant’s parents established that the underlying cause of their fear is related to the aforementioned events. The Panel further finds these documents credible and affords them full weight.
[22] The claimant also provided three photographs of himself with his partner. He described in detail the context in which the pictures10 were taken and how they were taken. He also provided pictures11 of himself and two gay friends in Canada that he referred to in his BOC. Again, the claimant was able to describe the context in which these photos were taken and his testimony was consistent with the allegations in his BOC. Therefore, the Panel affords full weight to these pictures.
STATE PROTECTION
[23] The Panel finds that the claimants have rebutted the presumption of state protection with clear and convincing evidence that the Indian state would be unwilling or unable to provide them with adequate protection. The Panel took into account the substantial documentary evidence from independent and reliable sources on the situation in this country from the National Documentation Package for India.12
[24] The Panel recognizes that the documentary evidence reports13 that same-sex consensual relations were decriminalized in India, in XXXX 2018, when the Supreme Court declared that Section 377 of the Penal Code was unconstitutional. The evidence reports14 that the decriminalization of same-sex conduct will not immediately result in full equality for the LGBT community in India. While the Supreme Court judgement held that the aforesaid reading down of Section 377 shall not lead to the reopening of any concluded prosecutions, the documentary evidence reports that it is too early to draw any conclusions for pending arrests and cases.
[25] The summons to the claimant’s father was issued prior to the Court decision and the claimant’s name is still on file with the police. Furthermore, the documentary evidence15 confirms that violence, abuse and harassment suffered at the hands of the police still exist throughout India and the Panel therefore finds that the claimants would be at risk.
INTERNAL FLIGHT ALTERNATIVE (IFA)
[26] The Panel proposed Mumbai as a possible IFA for the claimants.
[27] The Panel finds that the claimants have established that, on a balance of probabilities, they face a serious possibility of persecution in Mumbai. The Panel therefore finds that there is no viable IFA for the claimants in India.
[28] The claimant’s father is a person of interest to the police and the principal claimant became known to them through XXXX and co-claimant’s arrests by the police.
[29] Furthermore, the documentary evidence16 reports tenant registration is existent in Mumbai. The purpose of tenant registration is for authorities to verify the identities of the tenants and to confirm that they are not wanted criminals, terrorists or fugitives from the law.17
[30] In view of all these particular circumstances, the Panel concludes that the claimants would face a serious possibility of persecution should they return to India and live in Mumbai.
[31] Given that the first prong of the internal flight alternative test has not been met, there is no need to consider the second prong.
CONCLUSION
[32] For the foregoing reasons, the Panel concludes that there is a serious possibility that the claimants would be persecuted on the basis of their membership in a particular social group, namely Indian homosexual man and family, in the event of their return to India.
[33] The claimants XXXX XXXX, XXXX XXXX XXXXandXXXX XXXX XXXX are “Convention refugees” pursuant to section 96 of the Act. Their claims are therefore accepted.
Georgia Pagidas
November 4, 2019
1 Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.
2 Document 2 – Basis of Claim Form (BOC).
3 Document 1 – Package of Information from the referring Canada Border Services Agency (CBSA) / Immigration, Refugees and Citizenship Canada (IRCC): Passports.
4 Chairperson’s Guideline 9 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant
to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017.
5 Document 4 – Exhibit C-6 : Pictures (in bulk).
6 Document 4 – Exhibit C-2 : Lawyer ‘s letter.
7 Document 4 – Exhibit C-5 : Summon to claimant ‘s father.
8 Document 4 – Exhibit C-3 : Medical report.
9 Document 4 – Exhibit C-7 : XXXX report.
10 Supra note 5.
l1 Idem.
12 Document 3 – National Documentation Package, India, 31 May 2019 (NDP India), tab 6.1: Response to Information Request, IND106287.E, Immigration and Refugee Board of Canada, 9 May 2019.
13 Document 3 – NDP India, tab 6.6: Country Policy and Information Note. India: Sexual orientation and
gender expression. Version 3.0, United Kingdom, Home Office, October 2018.
14 Idem.
15 Idem.
16 Document 3 – NDP India, tab 14.8: Response ta Information Request, IND106289.E, Immigration and Refugee Board of Canada, 14 May 2019.
17 Idem.