2022 RLLR 44

Citation: 2022 RLLR 44
Tribunal: Refugee Protection Division
Date of Decision: November 3, 2022
Panel: Vicki Macdonald
Counsel for the Claimant(s): Dan M. Bohbot
Country: India
RPD Number: TC2-17872
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1]       MEMBER: So, this is a decision in TC2-17872. In deciding this claim, I have taken into consideration the Chairperson’s Guideline 9 on sexual orientation and gender identity, expression, and sex characteristics. I have considered the claimant’s testimony and totality of the other evidence in this case. Additionally, I have considered previously stated guideline, the social and cultural context, difficulties which a claimant may faced in obtain documents, the milieu of the hearing room, and the stress of responding to oral questions all during the course of arriving at my finding.

DETERMINATION

[2]       I find that you face a serious possibility of persecution in India based on the ground of particular social group being a gay man. I note that the claim also has a basis for finding under section 96 for political opinion. The claimant is a Khalistan supporter who has a long history of questioning Hinduism publicly as the ruling party, the BJP, view India as a Hindu nation and promote Hinduism and its values as central to country unity. His known questioning and comments on Hinduism dating back to 2013 also raises a serious possibility of persecution. Although I acknowledge that the political opinion nexus exists, this decision will only arrest (sic) the membership in a particular social group, gay men. As a result, I have considered this claim under section 96 of the IRPA.

Identity

[3]       I find that you have established your personal and national identity, on a balance of probabilities, through your oral testimony and the submission of your Indian passport at Exhibit 1.

ALLEGATIONS

[4]       You have alleged the following, that you are a gay man, that you are a citizen of India but primarily resided in the United Arab Emirates, that on vacation in India with your family, you were there for a period of XXXX (XXXX) months in 2013, that in 2013, you were in Amritsar from — which is where your parents are from, and you met an individual, BS, who is a gay man and that you began a friendship, that you would gather in restaurants, cafeterias, and at BS’s home and often spoke about gay rights and religion with BS and his friends, that in XXXX 2013, during a movie night at BS’s is home, the local Hindu XXXX XXXX, OP, the local XXXX XXXX, HD, and the local sarpanch arrived and shamed the gathering before taking you to the temple, that at the temple, you were beaten and accused of insulting the Hindu gods and being a homosexual, which, at the time, was still illegal, that they produced an audio recording of you insulting the Hindu gods for being unable to protect a temple from a Muslim conqueror, that after escaping, your family arranged your return to the UAE when they were unable to secure for forgiveness from the sarpanch, and that after returning to the UAE in XXXX 2013, that a — you learned a police complaint had been filed against you following a ruling of the — I am just going to spell it now. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, that you continue to live in the UAE until the father of your boyfriend, SM, threatened to have your family’s visas revoked in XXXX —in XXXX 2015, so you fled to Canada on a student permit, that the police continued to visit your relatives within India and that once your parents had returned to India in XXXX 2020, they located them in Delhi and started visiting them as well, that you remained in Canada without status until XXXX 2020, when you learned from a member of the gay community that you can make a refugee you claim on the basis of your sexual orientation and that you did so in a timely manner.

Credibility and Fact-Finding

[5]       In terms of general credibility, I found you to be a credible witness, and therefore, I believe what you have alleged in your oral testimony and in your Basis of Claim form. I found that you are spontaneous and detailed and there were no contradictions in your testimony which go to the core of your claim. You established your credible testimony when you spoke regarding the realization of your sexual orientation, your continued fears regarding being discovered, your in-depth conversation — as well as your in-depth conversation about your religious identity and sexual orientation all in an unembellished manner.

[6]       I find that the following documents support your allegations. The letter from the Indian advocate at Exhibit 4, which indicates the continued police interest in you, including a complaint, the affidavit of your parents at Exhibit 4, which supports your allegations around how they learned of your sexual orientation, the medical certificate at Exhibit 4, which supports your allegation of the injuries you sustained in XXXX 2013, the declaration of your partner here in Canada at Exhibit 4, which supports your allegations of your live-in partner, a membership card for XXXX, a gay club in Toronto, at Exhibit 4, which supports your allegations of involvement with the gay community here in Canada, the Backward Caste certificate at Exhibit 4, which supports your allegations regarding your caste. I have no reasons to doubt the veracity of these documents and therefore assign them full weight.

[7]       As a result, I find, on a balance of probabilities, that you have established the following, that you are a gay ma, that a complaint was made about you to the police in XXXX 2013, that your community in Amritsar, India, knew of your sexual orientation or should know about your sexual orientation based on the XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, that you are a Sikh man from a lower caste who has lived a substantial portion of his life outside of India.

[8]       In examining your subjective fear, I also considered the delay in your claim, and I found your explanation for it reasonable, being that you are unaware that you could claim based on sexual orientation and that as you did not speak with community members about the difficulties you had faced in India for fear of backlash, that you did not know the possibility until your out of status.

[9]       I considered additionally that you were willing to present your partner as a witness in today’s claim. However, I declined as I found it not necessary to establish your sexual orientation.

[10]     I considered and applied Guideline 9’s guidance on understanding the challenges faced by individuals with diverse sexual orientations in establishing their orientation in their refugee hearings. The guideline informs the Panel that individuals with diverse SOGIESC recognize and may act on their SOGIESC differently, that an individual’s self-awareness and self-acceptance may present as gradual or in a non-linear process. It also says that many individuals with diverse SOGIESC concealed their sexual orientation in their country of reference out of mistrust or fear of repercussions by the state or non-state actors as well as due to previous experiences of stigmatization and violence. I therefore find your subjective fear is established by your credible testimony and I believe what you have alleged, on a balance of probabilities.

Objective Basis

[11]     The objective evidence in the National Documentation Package indicates that homosexuality has been decriminalized in India since 2018 but that prevailing societal attitudes still view it as unacceptable and immoral. The objective evidence at Items 2.6 indicates that the SOGIESC community in India continues to face substantial discrimination, including violence and harassment in some instances, that police opinion reflects the societal opinion, and that police now use nuisance and other unassociated laws to harass, manipulate, and threaten gay men. Reference to that can be found in Item 6.4. Item 6.1 shows that there has been an increase in hate crimes against SOGIESC individuals and human rights violations regarding employment. The SOGIESC people have no positive protection in either the constitution or broader protection in employment against hate crimes, against incitement, and that there is no ban on conversion therapy. Item 6.6 also objectively shows the cumulative nature of discrimination in the areas of housing, employment, access to public spaces, and concludes that the SOGIESC community members face discrimination which impedes civil, cultural, economic, political, and social rights and indicates that the community remains at a high risk of violence both by members of state security forces and by the broader society.

[12]     The claimant testified that he believes he would struggle to find housing and employment in India because the community in Amritsar knew or highly suspected he was gay and that if individuals in other areas learned of his sexuality, that he would be highly discriminated against as well. The objective evidence supports this conclusion because there are no positive laws which prohibit discrimination against SOGIESC people. Based on the evidence before me, the Panel finds that the objective basis is made out and the claimant has therefore established his well-founded fear of persecution.

State Protection

[13]     States are presumed capable of protecting their citizens except in situations where the country is in a state of complete breakdown. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability or unwillingness to protect its citizens. The claimant is required to approach the state for protection if protection might be reasonably forthcoming. However, the claimant is not required to risk their life seeking ineffective protection of the state merely to demonstrate that ineffectiveness.

[14]     There is no positive legal protection at law from discrimination in employment, or from hate crimes, or against conversion therapy within India. Police authorities are frequently the source of discrimination and violence against SOGIESC people and harass, abuse, and use threats of arrest on falsified charges against members of the SOGIESC community. Police corruption in India remains a significant problem and police in India regularly torture your or extrajudicially kill suspects with impunity. Indian police share the same prejudice as the community at large, and as a result, SOGIESC people have less access to state protection than other Indian citizens and are at a risk of abuse and violence from the police due to being SOGIESC.

[15]     The claimant, having had previously a police complaint in 2013 for insulting Hindu gods, would further be exposed to anti-Sikh or religious hatred in addition to his identity being a Sikh man. As a result, in the particular circumstances of this claim, the presumption of state protection is rebutted.

Internal Flight Alternative

[16]     In determining whether an IFA exists, the Panel must apply the two (2) prong has set out in Rasaratnam (mispronouncing). The test requires that the claimant show, on a (inaudible), that there is a serious possibility of persecution or a risk to life or cruel or unusual punishment throughout the country, including in the suggested IFA location, and, two (2), that the proposed internal flight alternative can be unreasonable given the particular circumstances of the individual claimant. Panel, at the outset of the hearing, identified Delhi and Mumbai as potential IFAs. The Panel finds that the test fails in the first prong and the claimant does face a serious possibility of persecution in any place in India, on a balance of probabilities, as the attitudes towards the SOGIESC community, although varied in India based on location, tends to be negative and that violent harassment and discrimination is widespread with few repercussions. The Panel therefore finds there is no viable internal flight alternative in the particular circumstances of this claim. Based on the —

CONCLUSION

[17]     Based on the totality of the evidence before me, the Panel finds that the claimant has established that he is a Convention refugee and his claim is therefore accepted.

——— REASONS CONCLUDED ———