Citation: 2021 RLLR 23
Tribunal: Refugee Protection Division
Date of Decision: December 31, 2021
Panel: Devin MacDonald
Counsel for the Claimant(s): Penny Yektaeian
Country: India
RPD Number: TC1-09714
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000112-000119
REASONS FOR DECISION
[1] The claimant XXXX XXXX (Legal name XXXX XXXX XXXX) is a woman from India who is claiming refugee protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Act.
ALLEGATIONS
[2] The claimant’ s allegations are detailed in her basis of claim narrative. In short, the claimant fears persecution in India from her family, and society due to her gender identity expression as a trans woman.
[3] The claimant’s narrative describes her self-discovery process as a trans woman in India and her experience living with gender dysphoria. The claimant also outlines many instances of transphobia, homophobia, and gendered violence that she alleges to have personally experienced in India.
[4] The claimant alleges that she entered Canada on XXXX XXXX 2018, and began to receive hormone therapy in XXXX 2018. She alleges that she did not take steps towards making an asylum claim in Canada until April 2020 because she did not have the necessary support system in place until that time and wanted to avoid remembering traumatic events from her past.
DETERMINATION
[5] Paragraph 170(f) of the IRPA1 provides that the Refugee Protection Division (RPD) may allow a claim for refugee protection without a hearing, unless the minister has notified the RPD of the minister’ s intention to intervene within the time limit set out in the Refugee Protection Division Rules.2 Further, subsection 162(2) of IRPA3 directs each division to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. The Immigration and Refugee Board has issued Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD).4 The claimant’s claim was identified as one to which this process could apply. Her Certificate of Readiness was received on December 17, 2021. Having carefully considered the evidence in this case, the panel finds that it meets the criteria to be decided without a hearing.
[6] The panel finds that the claimant is a Convention refugee according to s. 96 of the Immigration and Refugee Protection Act.
ANALYSIS
Identity
[7] The claimant’s identity as a citizen of India is established by a certified true copy of her passport issued by Indian authorities.5
Nexus
[8] The panel finds that the claim is based on the claimant’s membership in a particular social group, as the claim is based on her gender identity. As such, the claim has nexus with the Convention and is assessed according to s. 96 of the Immigration and Refugee Protection Act.
Credibility
[9] The claimant submitted reliable documents that credibly establish that she is a trans woman.
[10] The claimant provided a medical report, hormone prescription records, and bloodwork from her family physician.
[11] The medical report, dated XXXX XXXX, 2021, indicates that the doctor has provided care for the claimant since XXXX XXXX, 2018. The doctor confirms the claimant’s identity as a trans woman, states that they established the diagnosis of Gender Dysphoria for the claimant over the course of two assessments in XXXX 2018 and indicates that the claimant will require lifelong hormone therapy as treatment.6
[12] The prescription records included in the medical report are a printout from a :flowsheet. The indicate that the family physician has prescribed hormone medications to the claimant regularly with the earliest prescription dated XXXX XXXX 2018.7
[13] The blood test results included in the medical report indicate that the claimant’s level of estradiol has increased, and level of testosterone as dropped between the first test dated XXXX XXXX, 2018, and subsequent tests.8
[14] The claimant provided three internet posts from an internet forum made in 2016, which is years prior to the claimant entering Canada. In the posts, the claimant expresses her identity as a trans woman and her experience with gender dysphoria.9 The posts are anonymous; however, the details of the posts are consistent with the claimant’s basis of claim narrative and in conjunction with the official medical documentation, with the panel has no reason to doubt that the claimant authored the posts. The panel finds the documents reliable and probative for the purpose of establishing the claimant’s identity and gender expression.
[15] The panel finds that the documents cited above reliably establish on a balance of probabilities that the claimant is a transwoman, that she has a diagnosis of gender dysphoria, and that she receives ongoing treatment for her gender dysphoria in the form of hormone therapy.
[16] The claimant provided a recording of a conversation between her and her mother in Gujrati10 and a transcript of the conversation accompanied by a translator’s declaration indicating that the audio tape was translated from Gujrati to English.11 The conversation concerns a specific instance of violence inflicted by the claimant’s parents onto the claimant. The documentation from mental health professionals indicates that the claimant has reported a long history of abuse.12
[17] The letter from XXXX XXXX Registered Psychotherapist, indicates that at the time of letter-writing they have had eighty-seven one-hour psychotherapy sessions with the claimant and indicates that the claimant has been diagnosed with complex trauma, which is diagnosed in individuals who have repeatedly experienced traumatic events such as violence, abuse, or neglect over a sustained period of time. The author states the claimant dissociates when reminded of past abuse which results in a struggle to think or communicate clearly.
[18] The letter is consistent with the claimant’s narrative in that her diagnosis of complex trauma is consistent with the experiences outlined in her narrative and in that the symptoms of complex trauma that the psychotherapist has noted in the claimant explain why the claimant delayed in making her claim in Canada until April 2020.
[19] Based on the sworn statements in the claimant’s BOC narrative and the corroborating documentation, including, the claimant’s mother’s verbal confirmation of physical abuse, the panel finds that the claimant faced mistreatment including physical violence in India due to her trans identity.
[20] The panel finds that the above facts establish a subjective fear of persecution for the claimant should she return to India.
Well-Founded Fear of Persecution
[21] The National Documentation Package [“NDP”] indicates that the transgender community is continually harassed, stigmatize, and abused by the police, judges, their family, and society. Human rights watch indicates that transgender people face discrimination in employment and housing.13
[22] Sources indicate that transgender individuals have difficulty accessing health care and face stigma and discrimination when attempting to access the care they require.14
[23] An article, provided by the claimant from Scientific American states that transgender people are refused health care at public hospitals.15 Another article from Al Jazeera documents specific incidents of mistreatment that trans individuals have experienced in attempting to access health care in India. It mentions an individual who died while doctors could not decide whether to admit the patient into a male or female ward and mentions an individual who was not given treatment, or the anti-HIV medicine recommended to rape victims. The article states that trans patients often face derogatory remarks from hospital staff and face delay in treatment.16
[24] NDP item 2.15 indicates that transgender persons face difficulties in finding rental housing and are often forced to live in remote slum areas, where access to water and sanitation facilities is poor. 17
[25] NDP item 6.6 states that trans individuals are vulnerable to physical and sexual violence in their homes. When young trans persons begin to express their gender identity they are often subjected to emotional, verbal, physical and even sexual abuse. The documents also discuss mistreatment perpetrated by private actors against transgendered individuals in public spaces, ranging from widespread verbal harassment, denial of services, and including physical and sexual violence perpetuated by mobs against transgender women.18
[26] The panel finds that the objective evidence establishes, on a balance of probabilities, that the claimants fear of persecution in India due to her identity as a transwoman is well-founded.
State Protection
[27] Trans individuals in India are legally recognized by the Indian state as belonging to a third gender. Despite legal recognition, transgender protection laws in India are criticized for denying the right to self-identify and requiring a certificate of identity from authorities and by not offering adequate legal protection against sexual violence.19
[28] Although the law bans discrimination, it does not define discrimination or provide for an enforcement mechanism to enforce the right to non-discrimination or provide any remedy when discrimination occurs.20
[29] NDP item 6.3 states that the systemic discrimination and violence faced by queer persons in India, and the challenges they face in accessing justice and seeking remedies for human rights violations, remain at odds with the constitutional provisions concerning right to equality, non-discrimination, freedom of expression and dignity which has been recognized as the source of transgender persons’ right to self-recognition of their gender identity by the Indian Supreme Court.21
[30] Item 6.3 indicates that trans individuals face a risk from state authorities including police. Item 6.3 indicates that many transgender persons rely on sex work as a means of livelihood and that there is also a perception that transgender persons are involved in sex work, even when they may not be. The police often use provisions designed to regulate sex work against transgender persons to arrest and detain them. Likewise, the documents indicates that trans persons are targeted by anti-beggary laws and nuisance laws by police who are supposed to be serving as agents of state protection.22
[31] Although the NDP indicates that there are trans-specific group that focus on advocacy and support for the trans community, the evidence does not indicate that these groups function as agents of state protection transgender individuals.
[32] The panel finds that operationally adequate state protection would not be forthcoming to the claimant in India should she return.
Internal Flight Alternative
[33] The panel finds that the claimant is unable to relocate to another part of India as there would be nowhere in India where the claimant would be able to openly express her gender identity without facing persecution. The country evidence reveals a strong societal bias against trans woman throughout India.
CONCLUSION
[34] Having considered the totality of the evidence in this claim, the panel finds that the claimant’s subjective fear is objectively well-founded, and that the claimant has a serious possibility of persecution upon return to India due to her membership in a particular social group. There is no viable internal flight alternative or adequate state protection for the claimant in India.
[35] The panel finds that the claimant is a Convention refugee and accepts the claim under s. 96 of the Immigration and Refugee Protection act.
(signed) Devin MacDonald
December 31, 2021
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 170(t).
2 Refugee Protection Division Rules (SOR/2012-256).
3 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 162(2).
4 Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division, effective January 29, 2019.
5 Exhibit 1: Claim referral information from CBSA/IRCC
6 Exhibit 5: Applicant’s document package, Persona] documents, Medical report and file issued by Dr. page 7-23
7 Ibid
8 Ibid
9 Exhibit 5: Applicant’s document package, Persona] documents, P. S’s Reddit web site posts. Page 23c-23e
10 Exhibit 5: Applicant’s document package, Persona] documents, Audio transcript, at page 1b-1d
11 Exhibit 5: Applicant’ s document package, Persona] documents, Translator’ s declaration, at page 1a
12 Exhibit 5: Applicant’s document package, Persona] documents, Psychodiagnostic Evaluation at page 1-6 and Psychological assessment at page 23a-23b.
13 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.
14 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.
15 Exhibit 5: Applicant’s document package, Country Conditions, Trans and Queer people in India should demand better health care” scientificamerican.com at page 34.
16 Exhibit 5: Applicant’s document package, Country Conditions, “Indian transgender healthcare challenges” dated June 18, 2014, alzajeera.com, at pages 38-39.
17 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 2.15: United Nations Documents Related to Housing and Land Rights in India. Housing and Land Rights Network. October 2019.
18 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.6: Living with Dignity: Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India. International Commission of Jurists. June 2019.
19 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.
20 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.
21 Exhibit 3: National Documentation Package, India, 30 June 2021, tab 6.3: “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity. International Commission of Jurists. February 2017.
22 National Documentation Package, India, 30 June 2021, tab 6.3: “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity. International Commission of Jurists. February 2017.