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.