Citation: 2021 RLLR 42
Tribunal: Refugee Protection Division
Date of Decision: May 14, 2021
Panel: Alexandre Lussier
Counsel for the Claimant(s): Deepak Pawar
Country: India
RPD Number: MC1-00105
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000089-000092
DECISION
[1] MEMBER: I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. So, these are the reasons for the decision in the claim of XXXX XXXX who claims to be a citizen of India and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[2] In rendering my reasons, I have considered the Chairperson’s Guideline 9, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.
ALLEGATIONS
[3] You alleged the following. You left India in XXXX 2017 as you were forced to hide your sexuality as a homosexual. You feared societal violence and your family’ s reproval. You came to Canada on a student visa and claimed asylum in XXXX 2019 on the basis of your sexual orientation.
[4] In a recent amendment to your narrative, you claimed that you discovered your gender identity while you were in Canada. You alleged that you are a transgender person. That you had been hiding your true self. If you were to return to India, you fear to be killed or tortured because of your sexual orientation and gender identity.
DECISION
[5] I find that you are a refugee pursuant to section 96 of the IRPA as there exists a serious possibility of persecution should you return to India on account of your gender identity. My reasons are as follows.
Identity
[6] I find that your identity as a national of India is established by the passport provided.
Credibility and Subjective Fear
[7] I note that once in Canada, you delayed for two (2) years before claiming refugee protection. However, you indicated that you came to Canada on a student visa and that you completed your studies. It was upon finishing your studies when you were faced with the obligation to return to India and to your family that you sought information about the possibility to stay in Canada.
[8] This explanation seems reasonable in your alleged circumstances. And therefore, does not raise significant concerns with respect to subjective fear or credibility.
Credibility Other Elements
[9] I find you to be a credible witness and therefore, generally believe what you alleged in support of your claim. You testified in a straightforward manner. And there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me that were not reasonably explained.
[10] You testified about your realization of being a transgender instead of a homosexual in 2019 when you consulted the 519 organization. You testified about the medical treatments you are considering concerning your gender identity. You also testified about your relationship with your family and how they learned of your sexual orientation while you lived in India.
[11] In particular, the following evidence establishes your allegations as set out above. You provided letters from friends in Canada who attest that you are a transgender. You also provided a copy of a membership card of the 519 Community Center for LGBTQ. And pictures of yourself with a boyfriend between 2019 and 2021.
[12] After reviewing the documents, I have no reason to doubt their authenticity. When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true. Unless there are reasons to doubt their truthfulness. This is the principle established in Maldonado.
[13] Although you had a relationship with a boyfriend for a while in Canada and had not alleged it, you explained that you thought that it would be enough to provide pictures as exhibits. I find this explanation reasonable in your circumstances and it does not raise sufficient concerns concerning your credibility.
Objective Basis
[14] The National Documentation on file indicates the following about persecution faced by transgender persons in India. According to Amnesty International at Tab 2.2, many repressive amendments were made into laws such as the Transgender Persons Act. In December 2019 during the winter session of the Parliament, the Transgender Persons Protection of Rights Act was passed.
[15] The Act undermines the rights of transgender and intersex persons and violates India’s international human rights obligations. And the 2014 ruling of the Supreme Court in the case of N-A-L-S-A v. Union of India. Amongst other flaws, the Act lays out vague bureaucratic procedures to be followed for legal gender recognition of the transgender persons.
[16] Human Rights Watch agrees with the statements. Human Rights Watch states at Tab 6.1 of the National Documentation Package that the decriminalization of same-sex conduct will not immediately result in full equality for LGBT people in India. Transgender people in particular including hijra communities face discrimination in employment and housing. Human Rights Watch also notes that transgender people face discrimination in health care.
[17] The United States of America Department of State report on Human Rights for 2020 at Tab 2.1 contains the following quote, “LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas”.
[18] Activists reported that transgender persons continued to face difficulty obtaining medical treatment. Some police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents.
[19] Given that there are no serious credibility issues with respect to your allegations, coupled with the documentary evidence set out before, I find that you have established a perspective risk of being subjected to hostility and outbursts of violence because of your gender identity. As well as cumulative discrimination in work and public services that become tantamount to persecution.
Nature of the Harm
[20] I have examined your claim under section 96 of the IRPA as I conclude that the risk you described constitutes persecution based on at least one (1) of the grounds prescribed in section 96. Specifically, that gender identity has been recognized as a social group of protected Nexus in the Convention.
State Protection
[21] I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances. Objective information on file at Tab 6.1 indicates that the attitudes 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 about 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.
[22] You also testified of an event in 2016 when there was an attempt to kidnap you and the police did not file your first information report.
Internal Flight Alternative
[23] I have examined whether a viable internal flight alternative exists for you. Based on the evidence on file, I find that you face a serious possibility of persecution throughout India as LGBTI groups reportedly face widespread societal discrimination and violence throughout India.
[24] I have considered whether a viable internal flight alternative exists for you. I find that there are no other parts of the country where you would not face a serious possibility of persecution.
CONCLUSION
[25] In light of the preceding, I conclude that you are a refugee pursuant to section 96 of the IRPA. Accordingly, I accept your claim.
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