Citation: 2019 RLLR 53
Tribunal: Refugee Protection Division
Date of Decision: August 21, 2019
Panel: S. Seevaratnam
Counsel for the claimant(s): Ian D. Hamilton
Country: India
RPD Number: TB7-25565
Associated RPD Number(s): TB7-25583
ATIP Number: A-2020-01274
ATIP Pages: 000089-000099
REASONS FOR DECISION
[1] The claimants [XXX] and her minor son, [XXX], claim to be citizens of India, and they are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1
[2] The adult claimant, [XXX], alleges that she fears returning to India due to membership in a particular social group, as a lesbian. The minor claimant, [XXX] fears returning to Indian, as a member of a particular social group – family.
[3] The mother, [XXX], consented to being the designated representative for her minor son, [XXX], for the purposes of the hearing.
[4] The panel has carefully considered the Chairperson’s Guideline 9: Proceedings Before the Immigration and Refugee Board Involving Sexual Orientation and Gender Identity and Expression (SOGIE),2 prior to assessing the merits of this claim.
[5] The panel has also carefully considered the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution prior to assessing the merits of this claim.3
ALLEGATIONS
[6] The principal claimant testified that her mother deceased when she was a year old and her father was busy working in the fields, so she was raised by her father’s brother and his wife. The claimant testified that she was born with a [XXX], a [XXX]. She explained that she was constantly compared by her aunt to her aunt’s own children, whom she considered to be beautiful, whereas she would call the claimant “ugly.” Furthermore, the aunt would treat her as a servant and keep her busy by making her perform manual labour. This lifelong mistreatment and humiliation led the claimant to attempt suicide at the age of 14 by jumping into a well. She felt isolated and ridiculed. The neighbouring farmers discovered the claimant and saved her.
[7] The claimant stated that her aunt and uncle sent their children to private schools and she was forced to attend a public school. She befriended a girl named [XXX] ([XXX])4 at school. She stated that [XXX] was in a similar predicament as her and she had a darker complexion. Both the claimant and [XXX] were of the opinion that no man would ever marry them because of their appearances.5 Over time, they formed a good friendship, which led to physical intimacy.
[8] In grade 11, her relationship with [XXX] was discovered and the claimant was beaten by her father and aunt and her education was prematurely terminated. They arranged a marriage for her which she adamantly opposed. The claimant stated that she was forcibly married at the age of 19 to [XXX],6 who was nine years older than her. She testified that he was a drug addict and alcoholic, and that he was physically and sexually abusive to her. On one occasion, he was so sexually aggressive with the claimant that she started bleeding. She reported the incident as rape to the police and the Inspector of Police asked her to return to her husband and indicated sex was part of marriage.7
[9] The claimant further explained that she did not enjoy any intimacy with her husband, but he tied her to the bed and frequently forced himself upon her. This led to her unwanted pregnancies. She wanted to terminate her second pregnancy, but the medical staff refused to abort the fetus unless her husband accompanied her to the hospital and consented to the procedure.8 He did not consent and so, she gave birth.
[10] In [XXX] 2011, her married life of physical and sexual abuse continued and when she continuously attempted to flee her estranged husband’s grip, he forcibly tied her to the bed with a rope and burnt her with a hot rod on five areas of her body.9 The claimant provided photographs of the injuries she sustained and she still bears the physical and psychological scars to this day.10
DETERMINATION
[11] The panel finds the claimants to be Convention refugees. The panel’s reasons are as follows.
IDENTITY
[12] In Exhibit 1, the claimants have provided copies of their genuine passports issued by the Republic of India which were initially suspected to be fraudulent but later certified to be true copies by an immigration officer on December 24, 2017.11
[13] In Exhibit 9, the claimant has provided a copy of the minor claimant’s birth certificate12 her 519 orientation training record,13 and her school transfer certificate issued by the Government of Tamil Nadu.14
[14] In Exhibit 7,15 the principal claimant has provided copies of her membership documents with the 519 Community Centre, a 519 reference letter, photographs of herself with fellow members of the LGBT community, family photos, photos of her scars, and a letter from her brother, [XXX].
[15] The panel finds the principal claimant to be a lesbian. The panel further finds both claimants to be nationals of the Republic of India.
CREDIBILITY
[16] The panel is guided by the leading jurisprudence on the issue of credibility. Maldonado16 stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.
[17] The principal claimant was straightforward when responding to all questions. Her responses were consistent with the notes from the refugee examinations conducted on December 24, 2017, and December 27, 2017.17 Her sworn viva voce testimony was consistent with her Basis of Claim form (BOC)18 and narrative, her personal documents,19 and country condition documents.20
[18] Having considered the totality of the evidence, the panel finds the principal claimant to be a credible and trustworthy witness. Accordingly, both claimants have established their subjective fear.
WELL-FOUNDED FEAR OF PERSECUTION
[19] The panel has sought guidance from reliable and reputable documentary evidence regarding the current plight of homosexual men in India.
[20] According to the current United States Department of State’s (DOS) “2018 India Human Rights Report” in the National Documentation Package (NDP):21
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.
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…
[21] In paving the way for the future of the LGBT community, the landmark decision of Navtej Singh Johar v. Union of India suggests the following:22
It is this immense task of combatting the prejudicial attitudes which were encoded in Section 377 which has to continue. Nariman J. was cognisant of this challenge and mandated the Union of lndia to give ‘wide publicity to the judgment’ and conduct ‘sensitisation and awareness training for government officials and in particular police officials in the light of observations contained in the judgement’.
While Nariman J. emphasises the role of the Union government in combating prejudice and stereotypes in accordance with the principles of the judgment, Chandrachud J. issues an important plea to civil society to continue to work to combat prejudices and realise full equality for LGBT persons in line with the mandate of a transformative Constitution.
[22] A World Bank report “estimates homophobia costs India $31 billion (R455bn) a year due to lower educational achievements, loss of labour productivity and the added costs of providing healthcare to LGBT people who are poor, stressed, suicidal or HIV positive.”23
[23] The Guardian published an article in March 2019 titled, “‘There are few gay people in India’: stigma lingers despite legal victory,”24 which states the following:25
The stigma still lingers. “In India, it is a case of ethics,” says Sanjay Paswan, a member of the Bihar state council and former Indian federal minister who opposed the decision to lift the gay ban. “[Gay] people are suffering from some psychological weakness or problem or trauma. There are very [few] of them in India… “
The article further states that “[s]ocial acceptance is lagging far behind legal sanctions.”26
[24] Counsel for the claimant acknowledged that decriminalizing and eradicating section 377 was a milestone for the LGBT community, but he pointed out that section 377 was specifically targeted at gay men. Counsel further explained that the police have numerous other laws which they utilize to charge members of the LGBT such as Anti-beggary laws,27 Nuisance laws,28 and the Immoral Trafficking Prevention Act.29
[25] A report by the International Commission of Jurists (ICJ) titled “Unnatural Offences: Obstacles to Justice in India Based on Sexual orientation and Gender”, cites the 2015 Report of the Office of the UN High Commissioner for Human Rights, which has noted:30
“Human rights mechanisms continues to emphasize links between criminalization and homophobic and transphobic hate crimes, police abuse, torture, family and community violence and stigmatization, as well as the constraints and criminalization puts on the work of human rights defenders”…
[26] The documentary evidence highlights the reluctance from many segments of society, including politicians and the police within India, to accept same-sex relationships.
[27] Accordingly, the panel finds that the claimants are at risk of persecution due to the principal claimant’s membership in a particular social group, as a lesbian, and the minor claimant’s membership in a particular social group, as a family member and the son of a lesbian.
STATE PROTECTION
[28] There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.31
[29] According to the United Kingdom (UK) Home Office report at item 6.6 of the NDP: “If the person’s fear is of ill treatment/persecution at the hands of the state, they will not be able to avail themselves to the protection of the authorities.”32
[30] The principal claimant testified that she sought police protection when she was raped by her estranged husband and the Inspector of Police asked her to return to him.33 Furthermore, the claimant testified that the police are intolerant towards members of the LGBT community and they have the same biases as the Indian general community. She believes that police protection will not be forthcoming to her as a lesbian and to her minor son, as the child of a lesbian. She further stated that the members of the police force are one of the agents of persecution and they commit violence towards members of the LGBT community. She fears their wrath.
[31] According an objective and recent Response to Information Request (RIR) conducted by the Immigration and Refugee Board:34
In a February 2017 report on obstacles to justice for sexual minorities in India, the ICJ states the following:
The attitude and behaviour of the police is one of the biggest barriers to queer persons’ access to the justice system in India. Several people spoke to the ICJ bout 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.
The same source adds that
[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 seriously detrimental impact on queer persons’ access to justice and redress.
US Country Reports 2018 states that “[s]ome police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents.” [footnotes omitted]
[32] In light of the above, “the ICJ is concerned that the police’s negative attitude towards queer people in India puts them at an increased risk of violence from non-State actors as well.”35
[33] Furthermore, the ICJ finds that “[d]emands for justice and accountability for police abuses have led to direct forms of reprisal by the police against those denouncing their abuses.”36
[34] In addition, “[s]everal people also told the ICJ that they believed that a lack of willing and experienced lawyers who were sensitive to issues of gender, sexuality, and queer rights in India hindered the possibility of obtaining justice in courts.”37
[35] Finally, the ICJ report notes that, “there are few legal remedies in the law for the violence and discrimination faced by queer persons. This also makes it difficult to approach the court with cases.”38
[36] The NDP39 and the documents submitted by the claimants40 make clear that the state is the agent of persecution and, in these particular circumstances, is clear and convincing evidence that the state is unable or unwilling to protect the claimant.
[37] Accordingly, the panel finds that the claimants have met the burden of proof, on a balance of probabilities, and the presumption of state protection has been rebutted.
[38] For the above-mentioned reasons, it is evident that state protection would not be forthcoming for the principal claimant due to her sexual orientation and her minor son.
INTERNAL FLIGHT ALTERNATIVE (IFA)
[39] The Federal Court of Appeal established a two-part test for assessing an IFA in Rasaratnam and Thirunavukkarasu:
(1) As per Rasaratnam, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”41 and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.
(2) Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claim, for him to seek refuge there.42
[40] The claimants bear the burden of proof to demonstrate that they would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment in all of India.
[41] Regarding internal relocation, the UK Home Office report states that “[w]here the person’s fear is of persecution and /or serious harm by the state, they will not be able to relocate to escape that risk.”43
[42] The UK Office further finds that “India is a vast, diverse, multicultural country, Communities vary considerable not only in size, but also in their religious, ethnic, economic and political composition – and in the extent of their adherence to traditional social and family values.”44
[43] According to a recent Response to Information Request (RIR) conducted by the Immigration and Refugee Board reports the following:45
India Spend reports that single women have to “depend [on] somebody’s goodwill – in-laws, parents brothers and sisters-in-law” in order to provide for them and their children … [Furthermore,] single women encounter “serious struggles with basic life issues such as getting a flat on rent or being taken seriously as a start-up entrepreneur or getting a business loan or even getting an abortion.” [footnotes omitted]
[44] The claimant testified that was used as a servant by her aunt and uncle and she was forced to perform menial tasks at home. She further explained that this was an obstacle to completing her homework and she was often punished by her teachers at school. In addition, when her father and aunt discovered her relationship with [XXX], a female school mate, they terminated her education and forced her into a marriage that she vehemently opposed. Thus, given her limited education, her estranged abusive husband, the lack of family support and as a single lesbian mother, the claimant would face a reasonable possibility of persecution from the Indian community and the Indian police, irrespective of where she lived within India. He minor son would also be subjected to ridicule and mistreatment due his relationship to his mother, a lesbian.
[45] A recent article in the New Yorker titled, “India’s Historic Gay- Rights Ruling and the Slow March of Progress”46 concludes the following:47
A country decolonizes itself slowly. The Supreme Court’s decision on Section 377 snips away one more tether binding India to its colonial past. But the verdict resembles a strong beam of light only because it pierces through the stormy, illiberal weather around it. The other problems besetting India- a hideous right wing Hindu nationalism; unpunished violence against minorities and lower castes; political corruption; arrests of civic activists under trumped-up accusations; yawning disparities of wealth; the spoiling, perishing environment – are all homemade. They cannot be blamed on anyone else; that heaviness of responsibility is part of the compact of growing up. For allowing these dysfunctions to flare, and for failing to stamp them out, India will be able to blame no one but herself.
[46] Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout the Republic of India. Thus, in the particular circumstances of the claimant, who is a lesbian single mother with a minor son, an internal flight alternative is unavailable.
CONCLUSION
[47] The panel finds [XXX] and [XXX] to be Convention refugees. They have established that there is a reasonable chance of persecution if they were to return to their country of nationality, India, today.
(signed) S. Seevaratnam
August 21, 2019
1 The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, sections 96 and 97(1).
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, Effective date: May 1, 2017.
3 Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
4 Exhibit 1, Package of information from the referring CBSA/CIC, Refugee Examination conducted on December 27, 2017, p.5, received January 4, 2018.
5 Exhibit 2, Basis of Claim from (BOC), Narrative, para 5, received January 15, 2018.
6 Ibid., response to q.5.
7 Ibid., Narrative, para 9.
8 Ibid., para 11.
9 Ibid., para 13.
10 Exhibit 7, Personal Documents, pp.22-26, received August 9, 2019.
11 Exhibit 1, Package of information from the referring CBSA/CIC, received January 4, 2018.
12 Exhibit 9, Claimants’ Documents, pp.9-10, received August 13, 2019.
13 Ibid., p.1.
14 Ibid., pp.2-4.
15 Exhibit 7, Personal Documents, received August 9, 2019.
16 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
17 Exhibit 1, Package of information from the referring CBSA/CIC, received January 4, 2018.
18 Exhibit 2, BOC, Narrative, received January 15, 2018.
19 Exhibit 7, Personal Documents, received August 9, 2019; Exhibit 9, Claimants’ Documents, received August 13, 2019.
20 Exhibit 4, National Documentation Package (NDP) for India (May 31, 2019); and Exhibit 8, Human Rights Documentary Evidence, received August 9, 2019.
21 Exhibit 4, NDP for India (May 31, 2019), item 2.1, s.6 – Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity.
22 Ibid., item 6.2, Idea of transformative constitutionalism and the way ahead.
23 Exhibit 8, Human Rights Documentary Evidence, p. 10, received August 9, 2019.
24 Ibid., pp.43-46.
25 Ibid., p.44.
26 Ibid., p.46.
27 Exhibit 4, National Documentation Package (NDP) for India (May 31, 2019), item 6.3, s.II(A)(ii) -Anti-Beggary laws.
28 Ibid., Nuisance laws.
29 Ibid., Immoral Trafficking Prevention Act.
30 Ibid., Laws regulating the police.
31 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
32 Exhibit 4, NDP for India (May 31, 2019), item 6.6, p.10, s.2.5.1.
33 Exhibit 2, BOC, Narrative, para 9, received January 15, 2018.
34 Exhibit 4, NDP for India (May 31, 2019), item 6.1, s.3.2.
35 Ibid., item 6.3, s.III.
36 Ibid., s.III(B – ii.).
37 Ibid., s.IV(A).
38 Ibid., s.IV(D).
39 Exhibit 4, NDP for India (May 31, 2019).
40 Exhibit 8, Human Rights Documentary Evidence, received August 9, 2019.
41 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.
42 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).
43 Exhibit 4, NDP for India (May 31, 2019), item 6.6, p. l 0, s.2.6.1.
44 Ibid., p.22, s.5.1.1.
45 Ibid., item 5.11, s.l.
46 Exhibit 8, Human Rights Documentary Evidence, pp.12-16, received August 9, 2019.
47 Ibid., pp.15-16.