2023 RLLR 125
Citation: 2023 RLLR 125
Tribunal: Refugee Protection Division
Date of Decision: December 12, 2023
Panel: T. Cortes-Diaz
Counsel for the Claimant(s): Arghavan Gerami
Country: India
RPD Number: TC3-32633
Associated RPD Number(s): N/A
ATIP Number: A-2024-00768
ATIP Pages: 000029-000035
DECISION
[1] These are the reasons for the decision in the claim of, XXXXX, 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.
Chairperson’s Guidelines
[2] In deciding this claim, I have considered the Chairperson Guideline 4: Gender Proceedings Before the Immigration and Refugee Board (Chairperson’s Gender Guidelines). All relevant factors, such as the social and cultural context in which the claimant found herself,
along with the issues of internal flight alternative and country conditions, were examined through the lens of the Gender Guidelines.
ALLEGATIONS
[3] The allegations of the claim are set out in the claimant’ s Basis of Claim (“BOC”) form1, and the claimant’s oral testimony.
DETERMINATION
[4] In reaching this determination, I have considered all the evidence including the claimant’s testimony, the documentary evidence filed as well as counsel’s oral and written submissions.
[5] I find that the Claimant is a Convention refugee pursuant to section 96 of the IRPA because of her membership in a particular social group; namely a woman at risk of gender related violence.
ANALYSIS
Identity
[6] I find the claimant’s personal identity and nationality as a citizen of India has been established by the claimant’s oral testimony and a copy of her Indian passports filed in evidence.2
Credibility
[7] In assessing the credibility of the claimant’s allegations, I have considered several factors, including the nature of refugee proceedings which can make claimants nervous and the unfamiliar hearing room setting via Microsoft Teams. I also considered the claimant’s age and her level of education. I have also considered that the claimant was represented by counsel.
[8] I have also considered and applied Guideline 4 on Gender Considerations in Proceedings Before the Immigration and Refugee Board, which offers guidance with respect to the application of a trauma-informed approach to proceedings with regards to asking questions to the claimant and assessing her answers.
[9] I find the claimant to be a credible witness and therefore believe what she has alleged in support of her claim. She testified in a very spontaneous manner, providing me with numerous details about her case. She was willing to provide plenty of information which did not require me to continually seek information from her. Most importantly, the information that she provided was consistent with the information I had in the file. There were no contradictions or omissions in her testimony.
Internal Flight Alternative (IFA)
[10] It is an established principle in refugee law that if there is a safe haven for claimants in their own country, where they could live free from harm, they are expected to avail themselves of it, unless they can show it is objectively unreasonable or unduly harsh for them to do so.
[11] I considered the availability of an IFA and whether, on a balance of probabilities, the claimant could relocate to a different part of her home country and live without a serious possibility of persecution or risk of harm. At the beginning of the hearing, I had proposed Delhi and Bengaluru as possible IFA locations.
[12] The test for assessing an IFA is two-pronged, and both prongs must be satisfied to find that the claimant has an IFA.
[13] First, I must be satisfied, on a balance of probabilities, that the claimants would not face a risk to their lives or of cruel and unusual treatment or punishment in the proposed IFA. Second, I must be satisfied that conditions in the suggested IFA are not such that it would be objectively unreasonable in all the circumstances, including those particular to the claimants, for them to relocate and reside there.
The IFA Test Fails on the Second Prong
[14] In assessing the reasonableness of the proposed IFA locations, I have paid attention to Guideline 4 – Gender Proceedings Before the Immigration and Refugee Board. The guideline states that, in determining the reasonableness of a woman’s recourse to an IFA, decision-makers should consider claimant’s personal profile. For example, a claimant may face a greater risk living in the IFA as a single woman, divorced woman, widow, or single parent. In addition, religious, economic, social and cultural factors, among others, may be relevant in determining the reasonableness of an IFA for a woman fearing gender-related persecution.
[15] I find that when considering the personal profile of the claimant, in light of the country conditions for single women in general and for women without a male presence, in particular, with respect to access to housing, employment, education and treatment by society, it would be unduly harsh for the claimant to relocate.
[16] The claimant grew up in a violent household. Her father and sister consistently abused her emotionally, physically, and financially. Despite her struggles, the claimant managed to get an education and find employment, becoming the main and only provider in her family. The
claimant testified that in her adult life, the family abuse persisted. She then started experiencing societal abuse and discrimination related to her gender. The claimant explained that during her commute to work, she was harassed by men. This harassment included groping, slapping, cat calling, and teasing by strangers.
[17] India has a culture that is deeply patriarchal and abusive towards women. Gender-based violence and discrimination are normalized and the state fails to effectively protect its female citizens from sexual harassment, rape, murder, domestic violence, and dowry deaths3.
[18] At the hearing, the claimant was very emotional and required multiple breaks when talking about her experiences while living in India. I find that the claimant’s demeanor is indicative of the XXXXX she has suffered and the fear she has for her life if she were to go back to India. A letter of support from the claimant’s XXXXX which is contained in evidence,
reports that the claimant suffers from XXXXX and has worked hard to XXXXX and create a safety support network in Canada. I find that if the claimant were to relocate within India, she would have no family support and as the objective evidence indicates, access and the quality of mental health services is poor.
[19] The objective evidence, specifically the National Documentation package for India, indicates that single women “faced high levels of deprivation, social taboos, insecure property rights, social restrictions on living arrangements, restricted employment opportunities, emotional and other forms of violence, and a lack of social support4“. Single women in India, often face difficulty in obtaining housing as landlords do not wish to rent to single women5. Also, violence against women remains prevalent and poorly addressed in India, with homeless women facing an increased vulnerability to violence6.
[20] I find that the claimant’s XXXXX past and XXXXX could make her more vulnerable to discrimination, which could amount to persecution, especially if she were to move to a city where she already faced difficulties such as Delhi. Taking into consideration the different elements of this claim together with the particular circumstances of the claimant, I find that, on a balance of probabilities, moving anywhere in the proposed IFAs would be unduly harsh to the claimant.
[21] I find that the claimant’ s personal characteristics as a young, single woman with no social or financial support, who may have problems finding suitable accommodation would create conditions that would jeopardize her life and safety in the IFA locations. As such, I find that the combination of the claimant’ s personal circumstances renders an IFA not viable.
State Protection
[22] I find that the claimant has produced clear and convincing evidence that rebuts the presumption of state protection in India. I find that if she was to return to India, the authorities of the state would be either unwilling or unable to provide her with adequate state protection.
[23] I based my findings on the oral testimony of the claimant, her personal documentary, the objective documentary evidence, and counsel’s written submissions, specifically that the claimant’s mother, who remains in India, was notable to get protection from the authorities regarding the familial abuse she endured at the hands of the claimant’ s father and now at the hands of the claimant’ s sister.
[24] The objective documentary evidence regarding India indicates that citizens in general face obstacles when trying to obtain access to the legal system, including demands for bribes by police7. The mentioned objective evidence supports the allegations of the claimant that the police would not be willing to assist her by providing protection from her sister if she found her. I find that the ineffectiveness of police protection, when it was sought, when combined with the objective documentary evidence before me rebuts the presumption that state protection would be reasonably forthcoming to the claimant in her circumstances.
CONCLUSION
[25] For the reasons above, I find XXXXX is a convention refugee under section 96 of IRPA. I therefore accept her claim.
——— REASONS CONCLUDED ———
1 Basis of Claim Forms
2 Exhibit I,
3 Exhibit 3, National Documentation Package for India – November 30, 2023 Version, item 5.9.
4 Exhibit 3, National Documentation Package for India – November 30, 2023 Version, item 5.9.
5 Exhibit 3, National Documentation Package for India – November 30, 2023 Version, item 5.11 and 2.8.
6 Exhibit 3, National Documentation Package for India – November 30, 2023 Version, item 5.14.
7 Exhibit 3, National Documentation Package for India – November 30, 2023 Version, item 5.9.