Citation: 2022 RLLR 36
Tribunal: Refugee Protection Division
Date of Decision: June 1, 2022
Panel: Yvonne Baillie
Counsel for the Claimant(s): Mumtaz A. Khan
Country: India
RPD Number: VB9-02908
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: So, this is the decision at the Refugee Protection Division, or the RPD, in the claim of XXXX XXXX as a citizen of India, who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act or the IRPA. In evaluating this claim and coming to my decision, I have considered and applied the chairperson’s guideline nine (9), proceedings before the IRB involving sexual orientation, gender identity and expression and sex characteristics or SOGIESC. I ensured that my questioning was conducted in a sensitive, non-confrontational manner offering breaks to the claimant and explaining that he could request a break at any time. I have considered the potential impact of trauma on the claimant’s testimony and have considered his particular intersectionality in my analysis of his claim. In application of the SOGIESC guidelines at the outset of the hearing, the claimant was asked to advise the Member on what terms he was comfortable using in reference to his sexual orientation and he identified himself as a gay man. Therefore, this term was used throughout the hearing. And this decision, unless otherwise stated by the claimant, are within supporting documents or when referring in general to the LGBTQI+ community.
ALLEGATIONS
[2] The full allegations are set out by the claimant in his Basis of Claim form or his BOC. As amended, see Exhibits 2 and 10. In summary, the claimant fears persecution from his relatives, the police and society writ large in India on the basis of his sexuality as a gay man.
DETERMINATION
[3] I find that the claimant has established that he is a Convention refugee pursuant to section 96 of the IRPA.
ANALYSIS
Identity
[4] The claimant’s personal identity and his identity as a national of India has been established by his foreign testimony and a certified copy of his Indian passport in Evidence C, Exhibit 1. I accept that he is a national of India and no other country.
Credibility
[5] In line with the federal court’s decision in Maldonado, claimant’s sworn testimony creates a presumption that the individual’s allegations are true unless there is reason to doubt their truthfulness. In this case, the claimant’s BOC form was missing significant and substantial information that he only provided in an updated narrative the day before his hearing. Additionally, there is a substantial delay between the claimant’s arrival in Canada and his submission of his refugee claim. However, I found that the claimant has provided reasonable explanations for these concerns. I also found that the claimant’s testimony regarding his experiences was detailed, spontaneous and compelling. And I found no other contradictions or inconsistencies in his testimony and the documents before me. I find that the claimant has credibly established on a balance of probabilities that he is a gay man. The claimant testified about his experience of realizing he was different growing up and explained that he struggled with a feeling of unrest because his sexuality went against his religion, Hinduism, and against his family’s beliefs. He stated that that he was fighting with himself and with his identity and that he tried unsuccessfully to convince himself that he could be with woman. The claimant notes in his narrative that his first same-sex experience was being sexually assaulted and raped when he was around 13 or 14 years old. He testified however that his first same-sex relations, that were consensual, were with a school friend, XXXX (XXXX), when he was almost 17 years old. The claimant explained that they tried to keep their relations secret to protect themselves. However, the claimant’s father began to suspect that he was gay, as he was not dating other woman, as his brother did. The claimant’s father sent him to XXXX for schooling after he graduated, where he stayed with a friend of his father. The claimant explained that he hooked up with men in cars and in the park during this time, but he can not bring anyone back to his father’s friend house. The claimant returned to his family home in Jalandhar in 2016 and testified that this home was like a prison for him. As he was kept under close watch and under the control of his father due to his father’s suspicion of his sexuality.
[6] The claimant began a relationship with XXXX (XXXX), a school friend. They started their relationship online but would meet up whenever the claimant could make an excuse to leave the house. The claimant explained that XXXX was Hindu, handsome, strong, smart, happy and with a jovial character. The claimant and XXXX were caught in an intimate situation in a car park following a religious ceremony at the end of XXXX 2017. They were beaten and the claimant escaped to a police station. He was mocked and beaten by the police who told his father what had happened. They escorted the claimant home, and his father was waiting with a priest. This priest prayed while the claimant’s father beat him with a stick. The claimant’s brother looked through his computer and found compromising information. The entire community knew what had happened in the car park. The claimant was locked in his room and his father arranged for him to be married to a woman within two (2) weeks. The claimant’s mother arranged for him to flee to Kolkata, and she obtained a student visa for him to come to Canada. The claimant came to Canada in XXXX of 2017. The claimant was studying in Canada, but his relatives continued to call and threaten him. They noted that he dishonored their family, that he broke them and that they wished he would die. The last time he had a threatening call from his family was two (2) days ago. The claimant was struggling with his mental health and was also financially struggling to pay for his courses while studying, so he stopped his studies in XXXX of 2018.
[7] The claimant testified that he dated four men while in Canada and that he has financially contributed to XXXX XXXX, an LGBTQI+ organization. It was a volunteer for this organization that advised him that he could submit a refugee claim. The claimant submitted a refugee claim in April of 2019. He explained that previously he had not known this was an option. I find his explanation reasonable, and I make no negative finding regarding subjective fear.
[8] The claimant’s BOC form is bare and contains few details. He submitted a very detailed amended narrative and three (3) supporting letters from friends, the day before his hearing, the 31st of May 2022. The claimant explained that he had struggled emotionally to recount the events as occurred as they were very traumatizing. And that took him these years to be able to relay a coherent narrative of events. His Counsel arranged for the claimant’s friends to be present to support him while he wrote his narrative. Prior to this, the claimant had been asked by the RPD to submit documents which he indicated he would be able to submit in April of 2021 and never did. The claimant explained that during this time he was struggling with the Covid-19 pandemic and that his Counsel was facing licensing difficulties that meant he could not represent the Claimant for a period of time. This is documented on file. The claimant noted that he forgot to submit these documents in light of other issues he was struggling with at that time.
[9] From a trauma informed perspective, I note that the claimant has been subjected to significant and brutal violence and harassment from a very young age. This harassment continues to this day. I understand that preparing a narrative of this violence would be retraumatizing and difficult and I accept that the claimant has faced numerous difficulties, not just with this trauma but also with the pandemic and his Counsel. I accept the claimant’s explanations as reasonable, and I make no negative credibility finding.
[10] The claimant has submitted three (3) affidavits from two (2) friends and an ex-boyfriend here in Canada, see Exhibit 10. These friends note that they know the claimant is gay, that they have met his boyfriends and that they have been present when he has received threatening calls from his family members. One (1) friend notes that he knew the claimant from childhood in India and that his family members came looking for the claimant at this friend’s house in India when he had fled to Kolkata. This friend additionally notes on a recent trip to India, the claimant’s mother said to him that his relatives are still searching for the claimant to harm him. I accord these documents full weight. I find the claimant to be credible and I accept his allegations. I find that he has established on a balance of probabilities that he is gay and that his relatives wish to harm him on this basis.
Nexus
[11] I find that there is a nexus between the claimant’s allegations and the Convention ground of membership of a particular social group, being a gay man.
Well-Founded Fear of Persecution
[12] Based on the claimant’s testimony and the available documentary evidence, I find that he has established that he has a well-founded fear of persecution in India given his sexual orientation. I note that in 2018 the Supreme Court of India rendered a judgement decriminalizing same-sex sexual relationships, see Tab 6.2 and 6.5 of the National Documentation Package, or the NDP. The court also offered a judicial apology to the Indian LGBTQI community. This was an important decision, a landmark decision, which marked the first step in the journey towards full equality of LGBTQI persons in India. However, the question is whether this ruling has been effectively implemented and whether as a gay man, the claimant could live safely in India and openly expressing his sexual identity. I find that the ruling has yet to result in adequate operational efficiency. There have been some positive changes since the Supreme Court of India’s ruling. The report at Tab 6.1 of the NDP says that after the decriminalization of same-sex sexual relations, there has been a surge of pro LGBTQI events and campaigns across the country. Many major cities now see pride events taking place on a larger scale of a larger participation. The report mentions that there were some 15 000 people who participated in a queer azadi pride parade in Mumbai, Kolkata, Delhi and Bangalore. They have all had pride events and even smaller towns, such as Shelan, have held pride events. Despite these gains, the response to information request, or the RIR, on the treatment of LGBTQI persons, found at Tab 6.1 of the NDP indicates that social rejection of LGBTQI sexuality remains widespread. LGBTQI groups report that they face widespread and societal discrimination and violence, particularly in rural areas, and that they face physical attaps, sorry, physical attacks, rape and blackmail. The Australian Department of Foreign Affairs and Trade, or DIFAT, report at Tab 1.5 of the NDP states that LGBTQI persons lack protection. They have poor health and education outcomes, and they face intolerance, abuse and violence on a day-to-day basis. This report refers to discrimination in employment, housing and inability to access public spaces. The report also mentions that police still use nuisance laws to arrest gay man and that while there are some gay nights in a few bars, there are no true safe spaces for gay or bisexual men. The report of the International Commission of Jurists found at Tab 6.6 of the NDP, identifies obstacles and issues that prevent effective implementation of the Supreme Court ruling. And this report also notes that LGBTQI persons frequently encountered threats to personal safety and security from family members, landlords and neighbours. The report states that notably recurrent were complaints about violations to the right to housing and to work. And the same report refers to difficulty in accessing equal and effective access to public spaces and facilities. The UK home office echoes these sentiments at Tab 6.4 stating that gay and bisexual men continue to suffer ill treatment and discrimination in many aspects of their lives.
[13] I note that the claimant’s family have attacked him and continue to threaten his life to this day as they claim that he has dishonoured them. The claimant has been beaten by his family, he has been held against his will in his family home and his father attempted to him to, sorry, attempted to force him to marry a woman. Viewing this evidence cumulatively, I find that the claimant faces a serious possibility of persecution in India, both from his family and society writ large. If he were to attempt to live openly as a gay man in India, even apart from his family, he would face chronic harassment, violence and discrimination in many facets of his life, including in the demands of housing, access to public services and employment. And the cumulative impact of this harassment, violence and discrimination amounts to persecution. I find that the claimant’s fear of persecution is well-founded.
State Protection
[14] There is a presumption that countries can protect their citizens. The claimant bears the burden of rebutting that presumption with clear and convincing evidence. In the claimant’s case, however, there is clear and convincing objective evidence that demonstrates that the state is unwilling or unable to provide adequate protection to LGBTQI people. The objective evidence suggests that the attitude and behaviour of authorities presents a barrier for protection of sexual minorities. Many LGBTQI people have reported suffering violence, abuse and harassment at the hands of the police, judges and public prosecutors. See Tab 1.5 of the NDP. Police have used the threat of arrest to coerce LGBTQI victims into not reporting incidence of harassment and crime. See Tab 2.1 of the NDP. Furthermore, LGBTQI individuals themselves are reluctant to file complaints due to the prejudice, preconceptions and stereotypes held by authorities, See Tab 6.3 of the NDP.
[15] The claimant himself has approached the police for assistance and was beaten and mocked. The police disclosed his sexuality to his family putting him at further risk of harm instead of protecting him. Given the claimant’s experience of a failed request of protection from the state, alongside the prevailing attitude of authorities to LGBTQI individuals and the evidence of limited police effectiveness and even complicity with regards to LGBTQI related crimes, I find that it would be objectively unreasonable for the claimant to seek the protection of the state. I find that the presumption of state protection has been rebutted.
Internal Flight Alternative or IFA
[16] I have also considered whether a viable IFA exists for the claimant and find that it does not. Anti-LGBTQI attitudes are deeply entrenched across the country. Discrimination against sexual minorities does appear to be less severe in major cities. Nonetheless, social contempt for gay man and other members of the LGBTQI community is prevalent throughout India. And I therefore find if the claimant attempted to live openly as a gay man, as is his right, he would face severe problems in finding housing and employment and he would be at a high risk of harassment and violence. Anti-discrimination laws are (inaudible) in the formal sector. But even there, the penalties are not sufficient to deter violations. Moreover, 90 percent of people work in the informal sector in India, and the anti-discrimination laws do not apply to that sector. So, I therefore find that the claimant does not have a viable internal flight alternative to him on two (2) counts. One (1), he would face persecution throughout the country. And two (2), it would not be reasonable to expect him to relocate given the difficulties that he would face in finding work or housing.
CONCLUSION
[17] For the foregoing reasons I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA and as such, I accept his claim, and this concludes my reasons.
[18] So that will be transcribed and sent to you. But otherwise, we are finished for today, and I want to say thank you to Counsel and to the claimant for your time today. And I wish you all the best with your life in Canada.
[19] COUNSEL: Madam thank you very much indeed.
[20] CLAIMANT: Thank you very much.
[21] MEMBER: Thank you. Enjoy the rest of your day.
[22] COUNSEL: Thank you. Bye-bye
——— REASONS CONCLUDED ———