2022 RLLR 105
Citation: 2022 RLLR 105
Tribunal: Refugee Protection Division
Date of Decision: August 19, 2022
Panel: Christine Medycky
Counsel for the Claimant(s): Ian D. Hamilton
Country: India
RPD Number: TC1-07495
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] XXXX alleges to be a citizen of India, and is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
[2] As this claim is based on sexual orientation the panel has taken into consideration at the hearing and in rendering its decision, the Chairperson ‘s Guideline 9: Proceedings Before the IRE Involving Sexual Orientation and Gender Identity and Expression and Sex Characteristics[2].
DETERMINATION
[3] Having considered the totality of the evidence, the panel finds that the claimant is a Convention refugee pursuant to s. 96 of the IRPA.
ALLEGATIONS
[4] The details of the claimant’s allegations are set out in her Basis of Claim Form (BOC).[3] The claimant alleges persecution at the hands of her family, community, and Indian society at large due to her membership in a particular social group, namely lesbians in India. The claimant alleges that there is no state protection or internal flight alternative for her in home country. The specifics of her main allegations are as follows.
[5] The claimant is a 24-year-old from XXXX Kerala, India. She was brought up in a religious Christian family and attended Catholics schools. The claimant alleged that during her adolescence realized that she was not attracted to boys sexually or emotionally, but to women. She recounted how she researched sexual orientation on the internet, read about it in magazines and watched lesbian videos, to better understand herself.
[6] The claimant testified that she concealed her true identity because homosexuality is
not accepted by her family and Indian society in general. Furthermore, her faith, Christianity, considers it a sin.
[7] The claimant said she had her first same sex experience in high school with a single, female teacher and that their relationship lasted for about 5 months, until the teacher left her school. The claimant later learned that the teacher was dismissed but did not know why.
[8] The claimant alleged that on XXXX 2016, while making a presentation at school, one of her lesbian videos which was on her computer desktop was accidentally projected to the class. This caused a sensation. She was summoned to the principal’ s office for questioning. When her computer was examined, the school authorities found affectionate selfies of the claimant and the teacher with whom she had had a relationship. The claimant’ s parents were called in.
[9] At home the claimant’s parents and relatives demanded answers. The claimant denied being a lesbian. She alleged that her uncle said she had dishonoured the family. Her parents reached out to the parish priest for assistance. Sorne people even suggested that their daughter undergo exorcism or Malayayam witchcraft treatment. The claimant said she was ostracised by her community.
[10] The first week of XXXX 2016, the claimant said the police came to the school to investigate a complaint filed some parents against the school for showing students pornography. The claimant testified that the police questioned her about the incident and ‘her selfies’ and that she denied being a lesbian and claimed the photos were taken in a fun way. Due to pressure from other parents, the claimant was told she could not return to school for classes but could sit for the final exams in XXXX 2016.
[11] Due to all that had transpired, the claimant said she became isolated and depressed. She went to live with a friend in XXXX in XXXX 2016 and with the approval of her parents came to Canada on XXXX, 2017 to study.
[12] While in Canada, the claimant said the police came to her parents’ home and said that a teacher was arrested in XXXX for her homosexual relations with students, and that they were investigating students associated with her. They requested a statement from the claimant and told her parents that she was to come to the police station when she returned from Canada.
[13] In XXXX 2018, the claimant testified that her parents tried to arrange a marriage for her with a young Indian man from Singapore. They said it was the only way of ridding the family of the social stigma they suffered due to her actions. The claimant did not meet with the young man when he came to Canada and confessed to her parents that she would not accept an arranged marriage because she was a lesbian. According to the claimant they reacted by cutting her off financially and emotionally.
[14] The claimant’s student visa expired XXXX, 2020. She applied for refugee protection in Canada on June 28, 2021.
ANALYSIS
[15] In making its assessment, the panel has considered all the evidence, including the claimant’s testimony and written evidence,[4] the objective country conditions documentation[5] and her Counsel’s oral submissions.
[16] The panel was also mindful of the many challenges faced by refugee claimants in establishing their claims, including the claimant’s age and educational background, nervousness, the impact of trauma, and cultural and social factors and the unfamiliar virtual hearing environment, and the high-stakes nature of refugee proceedings.
Identity
[17] The claimant’s personal and national identities were established, on a balance of probabilities, by her testimony and Indian passport, a certified true copy of which were provided by the Minister.[6]
Nexus
[18] The panel finds that there is a link between what the claimant’s alleged fear and one of the grounds listed in s. 96 of the IRPA, namely membership in a particular social group, therefore, her claim is assessed under s. 96 of the IRPA.
Credibility
[19] The panel found the claimant to be a credible and trustworthy witness. She testified in a direct, spontaneous, coherent, and detailed manner. The claimant self identified as a lesbian. She spoke fluently and respond to questions about:
- when and how she realized she was attracted to the same sex and her thoughts and feelings about this
- how and why, she concealed her true identity
- reactions from classmates, her family, the priest, and parishioners at her church a:fter the school incident
- her interactions with the school administrations and police
- her same sex partners and relationships and their pastimes, in India (teacher), and in Canada
[20] The claimant provided numerous supporting documents (educational certificates from a Catholic high school, first communion photos, letter of support from a co-tenant attesting to her relationship with a woman XXXX from India, photographs of XXXX and her present girlfriend who also came to testify, membership letter from XXXX, support letters from a friend in India who attests to events as alleged).[7] The panel finds these documents to be relevant, reliable, and probative and gives them full weight.
[21] The panel had some credibility concerns. The claimant did not mention her same sex relationships in Canada in her BOC. When asked to explain why this was missing, the claimant replied that the relationships developed after her BOC was signed. The panel asked why she did not amend her BOC accordingly and her Counsel replied as ‘relationships tend to come and go’, it was his practice to provide information about partners in Canada in the disclosures and pointed out to the specific Exhibit (6.2.) The panel does not accept this as a satisfactory explanation because same sex relationships go to the core of a SOGIESC claim, therefore the panel draws a negative inference against the claimant’s overall credibility. However, the panel finds that this omission alone, is insufficient to undermine her claim.
[22] The panel also notes that the claimant’s delay in filing her refugee claim. When asked for explanation, she stated that it took her time to find out about the possibility of claimant and retaining legal counsel. The panel accepts this explanation considering the claimant’ s young age and unfamiliarity with the legal system in Canada and the time required to find legal representation and therefore, finds that her delay in claiming does not detract from her subjective fear.
[23] The panel finds that the claimant has established on a balance of probabilities her profile as a lesbian, as well as her subjective fear of persecution due to her sexual orientation if returned to India. Her subjective fear is supported by the objective documentary evidence as follows.
Objective Basis
[24] Same sex acts are legal in India. Same sex marriages and civil unions are not recognized.[8]
[25] On September 6, 2018, same-sex consensual relations (consensual acts between adults conducted in private) were decriminalized in India. – Supreme Court declared s. 377 of the Penal Code to be unconstitutional.[9]
[26] Since the decriminalization LGBT events have surged across India in major cities, but also smaller ones. Businesses have become more LGBTQ friendly.
[27] In 2019 the Supreme Court dismissed a review plea which sought the recognition of certain rights for the LGBTQ community- same-sex marriages, adoption, surrogacy, invitro fertilization.[10]
[28] Society in India for the most part still view homosexuality negatively. “Sorne people will accept LGBT friends but won’t accept their relatives who come out.” Activists stated that it is too early after the decriminalization of same-sex relations to determine societal acceptance; it will not immediately result in full equality for LGBTQ people in India. A representative from the NGO Naz India said that sexual and gender minorities still have “a long way to go” for their rights and for representation in India.[11]
[29] “ILGA’s 2019 report states 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, and there is not ban on conversion therapies.” “The transgender community is continually harassed, stigmatized and abused by the police, judges, their family and society.” LGBTQ groups reported they faces widespread societal discrimination and violence (physical attacks, rape, and blackmail), particularly in rural areas.”[12]
[30] While discrimination based on sexual orientation and gender identity is prohibited in India (2014 Supreme Court ruling), the law is only enforced in the formal sector and not the informal one. The informal sector represents approximately 90% of the workforce.[13]
[31] In summary, given the claimant’s experiences and the objective country documentation on point, the panel finds that the claimant has established, on a balance of probabilities, a well-founded fear of persecution in India due to her sexual orientation. She would not be able to live freely and openly as a lesbian in her home country. Moreover, it would be unreasonable to expect the claimant to conceal her sexual identity or expression, to live free of persecution.
State Protection
[32] Absent a complete breakdown of the state apparatus, there is a presumption that a state is capable of protecting its citizens.
[33] The objective sources in the NDP for India, report that despite the Supreme Court ruling (September 6, 2018), negative attitudes and behaviors of the police and state authorities continue against the LGBTQI community. Nuisance laws are relied on to arrest, manipulate, bribe, and threaten LGBTQI persons. Community members have suffered violence, abuse, and harassment at the hands of the police. Sorne police have committed crimes against LGBTQI persons and used the threat of arrest to coerce victims not to report certain incidents.[14]
[34] “Hate-motivated violence against LGBTQI people is typically perpetrated by non-State actors… failure by State authorities to investigate and punish this kind of violence is a breach of States’ obligation to protect everyone’ s right to life, liberty and security of the person. Therefore, the police violate these basic rights when they refuse to register complaints or conduct investigations regarding complaints of violence and abuse against LGBTQI persons. This has a seriously detrimental impact on a LGBTQI person’s access to justice and redress and trust in the government to protect them. The Supreme Court in a September 2018 judgement, requested that government officials and in particular police receive training (sensitization and awareness) regarding sexual minorities.[15]
[35] Having considered the evidence of prevailing prejudice of Indian police officers against the LGBTQI community, the panel finds, on a balance of probabilities, that the claimant has rebutted the presumption of state protection. There is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection.
Internal Flight Alternative
[36] The panel has considered whether a viable internal flight alternative exists for the claimant. The evidence reviewed above confirms that the oppressive treatment of members of the LGBTQI community is nationwide. The panel finds that there is a serious possibility of persecution for the claimant throughout India and therefore no viable internal flight alternative exists for her.
CONCLUSION
[37] For the foregoing reasons the panel concludes that the claimant XXXX would face a serious possibility of persecution on the basis of her membership in a particular social group, namely lesbians in India, if returned to her country of origin. Accordingly, her refugee claim in Canada is accepted under Section 96 of the IRPA.
(signed) Christine Medycky
August 19, 2022
[1] Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended.
[2] Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression and Sex Characteristics. Effective date: May 1, 2017/ Revised December 2021.
[3] Exhibit 2.
[4] Exhibit 5, 6.
[5] Exhibit 3, 5.
[6] Exhibit 1, 4.
[7] Exhibit 6.1-6.3.
[8] Exhibit 3, Items 6.1-6.6, Exhibit 7.1-7.3.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Exhibit 3, Item 6.1, 6.2, 6.4.