2023 RLLR 126
Citation: 2023 RLLR 126
Tribunal: Refugee Protection Division
Date of Decision: December 12, 2023
Panel: Tina Androutsos
Counsel for the Claimant(s): Robert J Hughes
Country: India
RPD Number: TC3-38011
Associated RPD Number(s): N/A
ATIP Number: A-2024-00768
ATIP Pages: 000036-000043
DECISION
INTRODUCTION
[1] These are the reasons for the decision of the Refugee Protection Division 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 Immigration and Refugee Protection Act (IRPA).1
[2] The panel considered and applied the Chairperson’ s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression and Sex Characteristics (SOGIESC Guidelines).
ALLEGATIONS
[3] The claimant’s allegations are fully set out in his Basis of Claim (BOC) form2 and testimony. In summary, the claimant is a 22-year-old man who fears persecution in India because of his sexual orientation as a gay man.
DETERMINATION
[4] The panel finds the claimant is a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act, as he faces a serious possibility of persecution because of his sexual orientation as gay man.
ANALYSIS
Identity
[5] The panel finds on a balance of probabilities that the identity of the claimant as a national of India is established by his Indian passport. 3
Nexus
[6] The panel finds that the claimant belongs to a particular social group and therefore gives him a nexus to a Convention ground. Accordingly, the claim has been assessed under s.96 of the IRPA.
Credibility
[7] Credibility is a fundamental issue in all refugee determination cases including the matter which is the subject of this determination. The starting point of any credibility assessment lies with the presumption of truthfulness; this presumption – sometimes known as the Maldonado presumption – holds that when a claimant swears certain facts to be true, they are presumed to be true unless there be reason to doubt their veracity.4 The presumption of truthfulness may be rebutted by an accumulation of contradictions, inconsistencies, and omissions regarding crucial elements of the claim. The determination as to whether a refugee claimant’ s evidence is credible is made on a balance of probabilities.
[8] The panel finds that the claimant provided testimony that was spontaneous, straightforward, and detailed. There was no material contradictions or omissions that could not be explained.
The Claimant’s Profile: Sexual Orientation as Gay Man
[9] For the reasons that follow, the panel finds that the claimant’s testimony and supporting documents5 regarding his sexual orientation as a gay man was credible, and detailed.
[10] The panel accepts the claimant’s evidence that he was different than all the other boys when he was in grade 7 at 14 years of age. The panel also accepts that the claimant did not reveal to anyone his feelings and attraction towards boys and by the age of 15 had discovered LGBTQ and porn. The claimant testified that he was beaten by one of his teachers when he drew a gay flag during class and after that incident, classmates began to notice that the claimant was more friendly with the female students, acted girly at times and began bullying and making fun of him. The panel accepts that the claimant feared going to school because of his sexual orientation, was discriminated against, bullied and depressed and never told his parents that he was gay. The panel also accepts that the claimant’ s father is a religious man who beat the claimant as a child and that the claimant feared him.
[11] The panel also accepts that upon completing high school in Hisar, Haryana, his father sent the claimant to Chandigarh for XXXXX studies and to prepare the claimant to study abroad. The claimant testified that when he went to Chandigarh, he began to use dating apps, made friends, hung out with gay men, but continued to hide his sexual orientation from his family out of fear. The panel accepts that the claimant began to become more aware of how gay people were treated in India after living in Chandigarh as a gay man. The panel further accepts that the claimant suppressed his feelings as a member of the LGBTQ community while living in India in fear of retaliation from his family, the Indian police and religious extremist groups. The panel further accepts that the claimant feared being found out that he was gay and that he would be sent to a centre in India that gay people were sent to, where they were given medicines and electric shock treatments because they were considered to be damaged.
[12] The panel accepts the claimant’s evidence on how his parents discovered his sexual orientation in XX of 2022 when the claimant called his mother while in Canada and she asked him about his social media stories and where he goes in the evenings. The panel also accepts that his parents and father in particular got so angry, threatened, and swore at the claimant, hung up on him and that the claimant has not spoken to his parents or other family members since he admitted he was gay.
[13] The panel also accepts the claimant’ s evidence that he was in a same sex relationship for four months in Canada. The claimant testified that he ended the relationship as he felt his feelings were not reciprocated and that he was being used by his partner because he would send him money each month. The claimant supported his testimony with spontaneous information and details about his relationship describing his feelings, how they met, how the relationship ended, screenshots of their texts and pictures. The panel accepts the claimant’ s testimony and evidence, attaches full weight to them and finds it establishes on a balance of probabilities that the claimant was in a same-sex relationship while in Canada.
[14] In support of his claim, the claimant also provided photographs taken at the Toronto Pride parade in June 2022 where he attended with his gay roommate and two other gay friends. The claimant also provided photographs of himself with his gay friends at the world’s biggest LGBTQ Bollywood event in Toronto in June 2022. When questioned by the panel about attending these events and living freely as a gay man in Canada, the claimant provided detailed descriptions about the dating apps he uses through Tinder and other social media platforms and that he hangs out on XXXXX street in Vancouver where the gay community gathers to meet people. The claimant also provided a letter of support from his gay roommate and a letter of support from the XXXXX in Vancouver which corroborated the claimant’s testimony that he reached out to them in XX 2022 when he came out to his parents and has since been actively participating in weekly in-person meetings and events with the organization. The panel attaches full weight to the documents and accepts that the claimant participated in pride events, and also finds that the evidence supports his claim as a gay man.
Conclusion on Credibility
[15] The panel finds that the claimant is a credible witness and further finds on a balance of probabilities, that the claimant is a gay man. The panel also finds that the claimant has on a balance of probabilities his subjective fear and the panel believes the claimant when he alleges that he is afraid to return to India.
Well-Founded Fear of Persecution
[16] The objective evidence is consistent with the claimant’ s fear of persecution in India. The panel finds that while India has decriminalized same-sex relationships in India, it remains an unsafe place for sexual minorities.
[17] Members of sexual minorities continue to face risk of violence, and systemic discrimination throughout all areas of social life, resulting in the violation of core human rights to the extent that it constitutes persecution.
[18] As mentioned above, the NDP indicates that same-sex relationships were decriminalised in September 2018.6 However, there NDP also indicates sexual minorities continue to face physical attacks and widespread societal discrimination, including access to medical care.7 There is also reports that attitudes towards gay homosexual men has largely remained unchanged despite the change in the law.8 There is evidence to suggest that police use many nuanced laws to arrests, harass, and extract bribes from gay men whose families are not aware of their sexual orientation.9
[19] Furthermore, a report from the International Commission of Jurists concluded that members of the LGBTQI community face discrimination which impedes civil, cultural, economic, political, and social rights. There is extensive violation of human rights with respect to rental accommodations, denial of housing, exclusion from neighbourhoods, and harassment from landlords and neighbors.
[20] Members of the LGBTQI community face discrimination and human rights violations in all aspects of employment, including impendent with respect to education and training. They may experience discrimination in seeking employment or lack job security if they are employed. Harassment and arbitrary or discriminatory dismissals have been identified as a problem.
[21] Members of the LGBTQI community also face discrimination and verbal or physical assault when trying to assess 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, or sex work to target and harass them. They can experience problems accessing private property, which is open to the public, including shopping malls, restaurants, businesses, and hotels. Discrimination can take the form of invasive surveillance, charging higher prices, refusal to serve, and denial of access.
[22] Culturally, many people still believe homosexuality to be wrong and that sexual and gender minorities continue to face discrimination, violence, and harassment, which is widespread throughout society, especially in rural areas. Even though there are laws prohibiting discrimination in employment based on sexual orientation and gender identity, the law cannot be enforced in the informal sector of employment, which represents 90 percent of the workforce. While the laws in India may have changed through the higher court ruling, there is evidence that although societal attitudes are changing, it is not yet significant enough to prevent the possibility of persecution of gender and sexual minorities in India.10
[23] Likewise, a BBC report indicates that although gay clubs exist, patrons risk being attacked in the nearby streets after they leave.11 Despite decriminalization, sexual minorities continue to experience violence, harassment, and widespread social discrimination. One source indicates that members of the LGBTQI community are at risk of physical attacks, rape, and blackmail.
[24] Accordingly, the panel finds that the claimant’s fear is objectively well founded.
State Protection
[25] In terms of state protection, there is documentary evidence to suggest that although the police have started to receive education and sensitivity training, the attitude and behaviour of the police is one of the biggest barriers for sexual and gender minorities to gain access to the justice system in India.12 The police sometimes use violence, abuse and harassment against sexual and gender minorities and there is evidence that the police refuse to file complaints and even use coercion to prevent complaints from being lodged. Even in the courts, sexual and gender minorities, and their lawyers, can suffer harassments at the hands of judges and prosecutors. 13
[26] It is not enough for a law to merely be implemented; the law must be enforced as well, especially at the local level of enforcement. It is too soon to tell whether police attitudes have changed, and whether decriminalization will constitute a substantial, effective, and durable change in police practices. It appears that attitudes of the police and those in the judicial system have not yet come into compliance with the verdict of the Supreme Court. In summary, the documentary evidence establishes that the state has failed to provide adequate protection against systemic discrimination and risks to safety arising from widespread homophobic attitudes in society at large.
[27] Therefore, there is clear and convincing evidence that adequate state protection would not be forthcoming in circumstances of the claimant.
Internal Flight Alternative
[28] The panel finds that the risk to the claimant is present throughout the country. Given that adequate state protection would not be forthcoming in the claimant’s circumstances, the panel finds that there can be no viable IFA anywhere in India.
[29] In summary, the panel finds that the claimant has a well-founded fear of persecution and has a nexus to a Convention ground as a member of a particular social group being a gay man, who risks serious violations of his basic human rights because of an innate characteristic. The panel finds that the IFA test fails on the first prong.
CONCLUSION
[30] The panel concludes that the claimant is a Convention refugee pursuant to section 96 of the IRPA because he faces a serious possibility of persecution based on his sexual orientation as a gay man.
[31] Accordingly, the panel accepts his claim.
——— REASONS CONCLUDED ———
1 Immigration and Refugee Protection Act, S.C.2001, c. 27.
2 Exhibit 2 and 2.1
3 Exhibit 1
4 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C,302 (C.A.); 31 N.R. 34 (F.C.A.).
5 Exhibit 1
6 Exhibit 3, NOP for India, 7 July 2023, Item 6.3
7 Ibid., Item 2.1
8 Ibid., Item 1.5
9 Ibid., Item 1.5
10 Exhibit 3, NOP for India, 7 July 2023, Item 6.1 and 6.2
11 Ibid, Item 6.1
12 Exhibit 3, NOP for India, 7 July 2023, Item 2.1 and 6.1
13 Ibid, Item 6.1