Citation: 2021 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: March 10, 2021
Panel: Antoine Collins
Counsel for the Claimant(s): Yasin A. Razak
Country: India
RPD Number: TC0-05774
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX TC0-05774. Mr. XXXX you claim to be a citizen of India and is claiming refugee protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act. I have considered your testimony and the other evidence in the case and I am ready to render my decision orally.
[2] I find that you are a Convention refugee as you have satisfied the burden of establishing a serious possibility of persecution on a Convention ground in India based on your membership in a particular social group based on your sexual orientation.
[3] In coming to this determination I have considered the Chairpersons Guidelines, guideline 9 proceedings before the IRB involving sexual orientation and gender identity and expression.
[4] I find that there is a nexus between the harm that you fear in India and the Convention ground of a particular social group. Therefore your case will be assessed pursuant to Section 96.
[5] Your allegations are set out in your Basis of Claim form, which can be found at Exhibit 2. In summary, you allege fear of persecution at the hands of the Indian authorities, your family members and particularly your father and the society at large based on your sexual orientation.
[6] I am satisfied that your personal and national identity as a citizen of India has been established on a balance of probabilities by way of your testimony and a true copy of your Indian passport found at Exhibit 1. When a claimant affirms to tell the truth this creates a presumption of truthfulness unless there is evidence to contrary. You testified in a straightforward, spontaneous and unhesitating manner and your answers to my questions that I proposed about the central aspects of your claim were detail and unrehearsed. There were no material inconsistencies in your testimony or contradictions between your testimony and the other evidence that was before me today.
[7] Your testimony was consistent and in content and was chronological. In particular, your testimony about your identity as a gay man was detailed, natural and clear based on your own personal experiences growing up in India in a household of the Orthodox Roman Catholic faith. You testified growing up in India as an only child you tended to stay to yourself because you were shy. Your testimony was that your father did not like the way that you behaved and would scold you because of it. You were able to testify about how unhappy this made you feel growing up. Your testimony was that you had a close relationship with your mother however when asked why you did not provide a support letter from her, you indicated that individuals in the community and your family already thought that your father left her because of you and because of that you did not want to add any more stress and troubles to her life. Given your profile I take no issues with your response.
[8] Your testimony was that growing up you did not know what your sexuality was, however, you were able to express to me when you first started having feelings for the same sex. Your testimony was that it was during your teen years and you were even able to point out a couple of actors from your country who you had a boyhood crush on. You were able to express what the social and religious views were in India regarding same-sex attraction and you testified that you did not accept these views but you kept your feelings to yourself out of fear of not knowing what might happen to you, especially since you already had a strained relationship with your father. You testified that after high school your mother suggested that you attend school abroad as it would make your life easier and you could live freely. As such you made your way to Canada on a student visa.
[9] You’ve also provided spontaneous and straightforward testimony about your activities in Canada as far as your schooling and the renewal of your student visa. Your testimony was that you met your current partner (inaudible) in 2017 when you shared a house with him and five other individuals. Your testimony was that the two of you shared a room and you did have a crush on him but you dared not to tell him because you did not know if he was gay. Your testimony was that because you were roommates you developed a close friendship and you shared the same birthdays. You indicated that in 2019 on your birthdays you shared with him the troubles that you were having back home and that you were gay. He in tum confided in you and told you that he was gay as well and had made a refugee claim.
[10] You testified at that point the two of you started to date. Your testimony was that (inaudible) was your first boyfriend and your first gay experience. You were able to tell me the things that the two of you did together such as walks, going to the movies and what Netflix shows that you both liked to watch, as well as you expressed elements of his personality that drew you to him. What I found compelling was your testimony about when you two are together you are happy and relieved and that now you have someone that you can talk to openly and who is there for you.
[11] In support of your claim, (inaudible) came to testify at your hearing today and his testimony was in line with what you have alleged. You also (inaudible) of photographs which you were able to also talk about and they also collaborate what you have alleged, which can be found at Exhibit 4.
[12] I find that you have established on a balance of probabilities that your sexuality was first brought to your attention as a teenager back in India, number one. Number two, that you never acted on such feelings in India because you were afraid. Number three, while in Canada you started a relationship with (inaudible). And number four, that you do identify as a gay man. I’ve also found on a balance of probabilities that you have established a subjective fear in India due to your sexual orientation.
[13] The objective evidence is consistent with your accounts of fearing persecution in India. In the Supreme Court case of NAVTEJ, Sang Johar versus Union of India Supreme Court case, it determined that Section 377 of the Indian Penal Code which prohibits consensual same-sex relations was unconstitutional and a violation of international human rights obligations which were binding on India. The question addressed in this report a concern that the degree to which these principals have been implemented in society. They concluded that members of the LGBTQ community face discrimination which impedes civil, cultural, economic, political and social rights. In addition they are at a risk of violence. They encounter difficulties from both state actors and members of civil society in assessing such public services as water, sanitation, and transportation.
[14] It is well documented in the National Documentation Package and from the country conditions and several other news articles that your counsel provided, several articles which can be found at Exhibit 5 regarding members of the LGBTQ community that they face discrimination and human rights violation in all aspects of employment including impediments with respect to education, training which is mocked by violence, bullying or harassment. It also notes that they may experience discrimination in seeking employment or lack of job security if they are employed. Harassment and arbitrary discriminatory dismissal have been identified as problems.
[15] Members of the LGBTQ community also face discrimination and verbal or physical assaults when trying to access public spaces by the police or other authorities as well as by members of the public. There are reports of police making selective use of various laws such as begging, public nuisance, sex work or to target and harass them. They can experience problems assessing private property which is open to the public, including shopping mails, restaurants, businesses and hotels. Discrimination can take form of evasive surveillance, charging higher prices, refusal to serve and denial of access.
[16] Item 6.1 of the NDP indicates that there has been a surge of LGBTQ events and activities since September of 2018 legislation of the same-sex relationships. However a BBC report indicates that this does not mean that the public attitude has changed. Although gay pubs exist, patrons are at risk of being attacked in nearby streets after they leave.
[17] Despite decriminalization, sexual minorities continue to experience violence, harassment and widespread social discrimination. One source indicates that members of the LGBT community are at risk for blackmail, rape and sexual violence. Although discrimination based on sexual orientation is prohibited in India, this does not apply to about 90 percent of the employment which is not part of the formal sector. Sexual minorities have a long way to go before their rights are fully respected. Indian laws do not protect against conversion therapy, hate crimes, incitement or discrimination in employment in the non-formal sector.
[18] Reports state that the police use violence, abuse, harassment and threats to arrest and intimidate sexual minorities although police now receive awareness training about LGBT issues after the decriminalization, this document does not include sources which indicate how effective this has been or what changes have taken place with respect to police practices.
[19] I find that the country conditions and the documentation regarding the situation in India regarding sexual minorities coupled with your credible declarations has led me to find that you have established a serious possibility of persecution in India based on your sexual orientation if you are to return to India. Accordingly I find that your fear has an objective basis and is well-founded.
[20] The widespread nature and frequency of the attacks on sexual minorities described in the country conditions clearly and convincingly demonstrates that Indian authorities are either complacent or unable to prevent such events. As such there is a presumption of state protection unless the state is in a condition of complete breakdown. This presumption has been rebutted with clear and convincing evidence. Based on your personal circumstances and the fact that the state is the agent of persecution and the objective country documentation, I find that you have rebutted the presumption of state protection and that state protection would not be reasonably forthcoming or available to you in your particular circumstances.
[21] I’ve also had an opportunity to consider whether there is an Internal Flight Alternative exists for you. The evidence suggests that there is serious possibility of persecution throughout the entire country based on your sexual orientation given the widespread attacks on the LGBT community. As the state is the agent of persecution and the area remains widespread to social discrimination against LGBTQ persons, I find that no IFA is available for you.
[22] Having considered the totality of the evidence, I find that there is a serious possibility that you would face persecution in India based on your sexual orientation. Accordingly I find that you are a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection and therefore I accept your claim.
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