2023 RLLR 145
Citation: 2023 RLLR 145
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2023
Panel: Osehise Odigie
Counsel for the Claimant(s): Viken G. Artinian
Country: India
RPD Number: VC2-09284
Associated RPD Number(s): N/A
ATIP Number: A-2024-00768
ATIP Pages: N/A
DECISION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX (the ‘claimant’) as a citizen of India who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”)[1].
Consideration of Chairperson’s Guidelines
[2] In coming to this determination, the panel has considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, and Sex Characteristics (SOGIESC)[2] to ensure that appropriate accommodations were made in questioning the claimant in the overall hearing process and in substantively assessing the claim. The SOGIESC Guideline sets out a series of principles to consider when assessing a claimant’s credibility about their sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC). These principles include considering the intersectional factors that make up a person’s identity and that may compound a person’s risk, avoiding stereotyping when making findings of fact, considering the problems that a person with a diverse SOGIESC may have providing corroborative evidence, and considering the impact of experiences with stigmatization and violence on whether a person may conceal or be reluctant to discuss their SOGIESC.
[3] The panel also considered and applied the Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board,[3] which offers guidance in proceedings and decision-making involving gender considerations including forms and impact of gender inequality, discrimination and gender-based violence.
MINISTERIAL INTERVENTION
[4] The Minister of Immigration, Refugees and Citizenship Canada (Minister) intervened in writing on credibility. It is the Minister’s position that the claimant is not entitled to refugee protection. The Minister submits that the claimant’s inconsistency in her refugee forms and her study permit application undermines her credibility. The Minister further submits that undermines her fear of persecution.[4]
ALLEGATIONS
[5] The claimant’s allegations are contained in the Basis of Claim (BOC) form, narrative[5] and updated narrative.[6] In summary, the claimant is 24-years-old who identifies as a bisexual woman and fears discrimination and violence in India due to her sexual orientation. In XXXX 2016, her cousin who is a XXXX found out about her sexual orientation, this led to physical and sexual assault on the claimant. In XXXX 2017, she was forced to marry a man named XXXX XXXX and the claimant entered Canada in XXXX 2017 on a study permit.
[6] The claimant divorced her husband in XXXX 2023. She alleges that if she returns to India she will be at risk from her ex-husband’s family and that she will face persecution as a sexual minority because of her sexual orientation.
DETERMINATION
[7] The panel finds that the claimant is a Convention refugee pursuant to section 96 of the Act
ANALYSIS
Identity
[8] With respect to the issue of identity, the claimant’s identity as a national of India has been established on a balance of probabilities by the sworn statement in her BOC form,[7] testimony and certified copy of her Indian passport.[8]
Nexus
[9] For a claimant to be a Convention refugee the fear of persecution must be by reason of one of the five grounds enumerated in the Convention refugee definition. The claimant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion.
[10] The claimant alleges that she will be targeted by her family, ex husband’s family and society at large in India due to her sexual orientation. She has suffered sexual assault and physical violence due to her sexual orientation. The panel finds that this claim has a nexus to the Convention ground of particular social group, namely bisexual women in India. The panel finds that the claimant also fears gender-based violence in the form of physical violence. Therefore, the claim is assessed under section 96 of the Act.
Credibility
[11] When a claimant swears to the truth about his or her allegations, it creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.[9] However, this presumption does not extend to inferences, which are conclusions from facts, or speculation, which are allegations without any evidentiary basis.
[12] The panel finds the claimant testified in a straightforward manner and provided detailed information about her allegations. The claimant did not appear to embellish her experiences and provided spontaneous additional testimony without being prompted. Based on the foregoing, the panel finds the claimant was a credible witness when it came to the incidents she experienced in India.
[13] In assessing the claimant’s credibility, the panel has considered potential difficulties that the claimant may face in giving her testimony including:
a. the impact of trauma,
b. cultural and social factors,
c. the claimant’s age and educational background,
d. the unfamiliar hearing environment and the high-stakes nature of refugee proceedings.
[14] The claimant testified about her awareness of her sexual orientation from XXXX 2016 when she attended a co-educational institution. While in grade 11, she realised she was attracted to boys and girls. She testified that she has dated boys but she has not had any relationship with a girl due to fear of being persecuted. The claimant testified that when her family in India found out about her sexual orientation, she was beaten and told to change. The claimant further testified that she was taken to XXXX XXXX who were tasked with changing her orientation. She was forced to go through this procedure for months. The panel finds that the claimant is a bisexual woman.
[15] As the Guideline 9 states, there is no requirement for corroborative documents, and particularly in the claims involving SOGIESC, such documents may simply be unavailable. In this case, the claimant submitted documentary evidence to corroborate aspects of her claim including:
· Divorce decree dated from Family court om Gurdaspur, India dated XXXX XXXX, 2023 between the claimant and her ex-husband
· Letter of support from claimant’s mother. She states the assault the claimant endured from her cousin and confirms that the claimant informed her about her sexual orientation as well as the claimant’s forced marriage.
· Letter of support from claimant’s friend, corroborating the claimant’s sexual orientation, her abuse and the attempt to change her sexual orientation by members of XXXX XXXX.
[16] Upon review of the documents, the panel has no reason to doubt the authenticity of any of the documents and accepts them as corroborative of the core allegations advanced by the claimant and places full weight on them.
Minister’s Intervention on credibility
[17] The Minister intervened on credibility due to the claimant’s nondisclosure of her marital status and refusals on her refugee form as well as delay in making a claim. The claimant testified that at the time of making a refugee claim, she had been separated from her husband. She stated that he returned to India in XXXX 2020 and she did not want to include him in the refugee application. She stated that prior to that, there was a lot of pressure from her family and his family to bring him back to Canada hence his inclusion in her previous study permit extension applications. The claimant stated that at the time of making the refugee application, she did not consider him her current or former partner and she did not want to include him in the application. She further stated that she did not want her information to be communicated to him as she assumed it will be if she included him in the application.
[18] The panel inquired if she had a lawyer at the time of filling out the forms, she testified that she had not done full consultation, so she did not ask these questions. The panel finds that the claimant has been credible and has been able to reasonably explain the discrepancies in the study permit application and BOC. The panel finds that the claimant was forced into the marriage and was pressured to include him in her study permits and extensions. The panel further finds that at the time the claimant filled the refugee claim forms, she was separated and assumed that including his name meant making a claim with him and she did not want to do this. The panel therefore finds that these acts do not undermine the claimant’s credibility.
[19] The panel considered Guideline 9 to assess the credibility of the claimant’s explanation, whereby the Guideline states that Members should avoid relying on stereotypes or incorrect assumptions when assessing the credibility of a claimant. Further, 6.2 of the Guideline states “Members should consider the personal, cultural, social, economic, and legal realities of SOGIESC individuals, as well as their mental well-being, language barriers, and the impact of trauma, so that findings of fact are based on the lived reality of these individuals. A member should avoid basing a finding of fact on an incorrect assumption of what is reasonable behavior for a SOGIESC individual and demonstrate sensitivity to the complex challenges faced by SOGIESC individuals.”
[20] The panel has evaluated the claimant’s explanation in light of her personal circumstances, her mental state at the time she came to Canada and since then, her cultural background and the relevant cultural context, as well as in light of her other testimony, which is credible. The panel accepts that the claimant had been physically and sexually assaulted in India and then forced to marry before coming to Canada. The panel accepts that the claimant was pressured to include him in her study permit applications however, at the time of making a refugee claim they had been separated for 2 years. In light of this, the panel finds it reasonable that the claimant would refuse to include her then spouse in her application hence she indicated that she was single.
[21] Delay in claim
[22] The claimant entered Canada in XXXX 2017 on a study permit and made a claim in June 2022. A claimant’s delay in making a refugee claim in Canada may be a relevant factor when considering whether a claimant has shown subjective fear of persecution. The claimant testified that she came on a study permit which expired in XXXX 2020. She applied for an extension which was approved till XXXX 2021 after then she had 3 refusals. The last refusal was in XXXX of 2022 after which she spoke to her lawyer who explained the refugee process to her. She testified that her understanding of the refugee process before that time was that refugee claims were of political nature, and she did not know that she could make a claim. The claimant eventually submitted a claim in June 2022 after several consultations.
[23] The panel finds this explanation both credible and reasonable and accepts that the claimant wanted to remain in Canada with her study permit and attempted to remain in status by applying to renew and extend her status. The panel further finds that the claimant was not aware of the refugee process until her applications were refused multiple times and she made inquiries on how to remain in Canada. The panel finds that the claimant’s delay in claiming upon arrival in Canada does not undermine her credibility and subjective fear.
[24] Based on the overall credibility of the claimant’s testimony, the presumption of truthfulness, and the corroborative evidence, the panel finds, on a balance of probabilities that the claimant is bisexual. The panel finds established on a balance of probabilities that the claimant has experienced sexual assault and physical assault in India due to her sexual orientation. The panel further finds on a balance of probabilities that the claimant was taken for XXXX XXXX with members of XXXX XXXX to change her sexual orientation. The claimant is now divorced and continues to fear her family, her ex-husband’s family and the society. The claimant’s subjective fears have been established. The claimant’s fear due to gender-based violence as a woman, and fear of violence as a bisexual woman in India has been established, however, the panel will focus the analysis on fears as a result of her sexual orientation.
Well-Founded Fear of Persecution
[25] In Ward[10], the Supreme Court of Canada held that the test for establishing a fear of persecution is bi-partite in nature. Refugee claimants must establish both that they have a subjective fear of persecution if they return to their home country and that their fear is well-founded in an objective sense. The subjective component relates to the existence of fear of persecution in the mind of the refugee and the objective component requires that the refugee’s fear be evaluated objectively to determine if there is a valid basis for that fear.[11] The law is very clear that the definition of Convention refugee is forward-looking. As articulated by the Federal Court of Appeal in Mileva, “[t]he question raised by a claim to refugee status is not whether the claimant had reason to fear persecution in the past, but rather whether he now, at the time his claim is being decided, has good grounds to fear persecution in the future.”[12]
[26] Guideline 9 notes, first, a person does not need to have already individually suffered persecutory treatment to have a well-founded fear of persecution. The panel notes that the claimant has already suffered persecutory treatment from family and society. The claimant has been assaulted and taken for XXXX XXXX and was unable to safely explore her sexual orientation in India and as a result, she fears mistreatment, assault and possible death. Considering the circumstances, that is clearly persecutory.
[27] Based on the claimant’s testimony and the country condition documents as explained below, the panel finds that the claimant has a well-founded fear of future persecution for the following reasons:
[28] The US Department of State report states that significant human rights issues included credible reports of crimes involving violence or threats of violence targeting members of minority groups based on sexual orientation and crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, and intersex persons. The report further indicates that LGBTI persons face physical attacks, rape, and blackmail. Groups reported facing widespread societal discrimination and violence. It reports that some police committed crimes against LGBTI persons and used threat of arrest to coerce victims not to report the incidents. [13]
[29] A Request for Information Request reports that despite the decriminalization of same-sex relations in 2018, same sex marriages or civil unions are not recognised, and some sexual and gender minorities still face violence and harassment. Other sources stated it was still too early to determine how decriminalization would translate into social acceptance.[14] Freedom House indicates that discrimination continues including violence and harassment.[15]
[30] Objective documentation indicates that LGBT people frequently encounter threats to their personal safety and security from neighbours and even family members. LGBT people face discrimination that affects their ability to fully enjoy their civic culture, economic, political, and social rights. The report states that there is an indication of extensive rights violations within the domain of housing and the home, including discrimination in the rental market, denial of housing, violence and harassment from landlords, neighbours, family, and police, as well as forced evictions and homelessness. The report further states that LGBTI persons continue to experience discrimination and abuses at all stages of the employment process, including in recruitment and hiring processes, discriminatory work conditions and lack of job security. Finally, they report individuals faced discrimination and physical and verbal abuse while accessing public spaces, including violence by police and community members in streets, parks, and on transport. [16]
[31] LGBTI persons experience a climate of intimidation, stigma and discrimination which may exclude them from society, public services and job opportunities. However, victims rarely reported such crimes to the police, in part because a fear of being outed is a barrier to reporting abuse. DFAT Country Information report that discussion about sexuality is generally taboo in India, which means that LGBTI people often lead hidden lives. It further states that most LGBTI people are not open about their sexual orientation or gender identity because being open can lead to significant discrimination.[17] The UK Home Office report states that there is no law against conversion therapy and sexual minorities are often sent to psychiatrist and psychologists to “cure” them of their sexual orientation or gender identity, to make them “normal.” The report further states that there reports of discrimination and violence including physical attacks and rape against members of the LGBTQI+ community.[18]
[32] The panel has found the claimant is a bisexual woman and has been the victim of sexual violence and physical violence based on her sexual orientation. She has been forced to undergo XXXX XXXX to change her sexual orientation. The discrimination experienced by the claimant has cumulatively risen to a level of persecution. Based on the above documentation as cited above and, on the claimant’s past experiences, the panel finds that the claimant faces a serious possibility of persecution from her family and the society in India due to her sexual orientation if she were to return.
State Protection
[33] Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption, the onus is on the claimant to establish, on a balance of probabilities and through clear and convincing evidence, that their state’s protection is inadequate.[19] The panel notes that the more democratic a state, the harder it is to displace this presumption[20] The panel finds that this presumption has been rebutted in this case.
[34] The panel notes that Gender Guideline 4 section 11.5.2 states that contextual and intersectional approach should be used to determine whether a claimant’s reluctance to seek state protection was reasonable.[21] The claimant is 24 years and was young when she was outed and assaulted by her cousin who is a XXXX and being a sexual minority is frowned upon by the society. The panel finds that the claimant did not attempt to make a report because she was young and afraid, and her cousin was a XXXX.
[35] According to the SOGIE Guidelines at 8.6.5, decriminalization of same-sex relationships must be carefully considered to determine whether state protection is adequate at the operational level, and it states that I as a member need to examine the degree of actual implementation, the effectiveness, and the durability of these legislative or other improvements in light of how state actors and general society continue to treat SOGIESC individuals.
[36] In the case of India, the law criminalizing same-sex relations was struck down by the Supreme Court in 2018. However, objective documentation indicates that there are significant obstacles for justice for sexual minorities in India, including, as noted, harassment and violence and threats of arrest from police, police refusing to file complaints submitted by LGBTI persons, owing to bias or stereotypes.[22]
[37] The claimant testified that she did not report the physical assault and sexual assault as her cousin was a XXXX and the family was aware of the physical assault. She further testified that she did not have any evidence and she and her mother had no help. The reports are clear that the authorities will deny protection to LGBTI+ persons, SOGIESC individuals because of their identity, and as a result, SOGIESC persons are not safe reporting crimes, even if those crimes are not necessarily connected to their identity. Despite the lack of criminalization, the panel finds that the claimant would not receive adequate practical state protection, either from the community or from local authorities, from the police. Guideline 9 states that evidence about the availability of state protection for SOGIESC individuals in some countries can be scarce or non-existent. This scarcity may be due to the stigmatization of SOGIESC individuals in a given country and a consequent under-reporting or fear of reporting abuses to authorities by individuals, all of which may indicate a lack of state protection.
[38] According to the objective evidence, the attitude and behaviour of police is one of the biggest factors to queer persons access to the justice system. There are several reports of violence, abuse, harassment that people have suffered at the hands of police. There are several cases the police have refused to file a complaint submitted by this community of individuals owing to their biases and stereotypes. [23]The UK Home Office report states that the LGBTQ+ community face regular threats of sexual and other violence from many actors, including the police.[24]
[39] Based on the country condition information and considering the numerous reports of mistreatment of those persons with diverse sexual orientation by law enforcement in evidence, the panel finds that there is sufficient evidence to find that there is an absence of operationally effective state protection available to victims of crime against sexual minorities in India. Based on all of the above, the panel finds the presumption of state protection has been rebutted.
Internal Flight Alternative
[40] The Federal Court of Appeal in Rasaratnam,[25] developed a two-prong test when assessing IFA, which entails a consideration of two matters: the RPD must be satisfied on a balance of probabilities that (1) there is no serious possibility the claimant would be persecuted or subjected personally to a risk of s. 97(1) harm in the proposed IFA, and (2) conditions in the proposed IFA are such that it would not be unreasonable, in all of the circumstances, including those particular to the claimant for him or her to seek refuge there.
[41] At the start of the hearing, the panel proposed Mumbai and Bengaluru. The caselaw is clear that if a claimant must remain in hiding to avoid harm, an IFA does not exist. In Zamora, the Court noted that “[n]ot to be able to share your whereabouts with family or friends is tantamount to requiring the Applicant to go into hiding.”[26] Additionally, in Ali v. Canada, the Court held that it was unreasonable that the applicants would be “forced to hide from family members and friends and cut off communications.”[27]
[42] Gender Guidelines section11.6.2 states that the claimant is not obligated to go into hiding to be safe in the IFA. The Gender Guidelines section 11.6.3 further states that the safety of an IFA is dependent on the claimant’s personal profile. For example, a claimant may face a greater risk as a single woman, divorced woman, widow, or single parent.[28] It further states that Members should also consider the cycle of violence and coercive control when assessing whether an agent of harm may have the motivation and means to locate a claimant.[29]
[43] Based on the evidence regarding being a sexual minority particularly as bisexual woman in India, the panel finds that the risk extends beyond the localities where the claimant has lived and have been attacked and assaulted and includes risk from state authorities and society at large. There is a strong societal bias against LGBTI individuals, including bisexuals throughout India as such there is no safety for the claimant.
[44] The panel has also considered that having the claimant hide her sexual orientation in order to live safely would be unsafe and unreasonable. The panel finds that persecution of the LGBTQ+ individuals or community persists throughout India, therefore, the panel finds that the claimant would face a serious responsibility of persecution everywhere in India. Accordingly, the panel finds on a balance of probabilities, that there is no internal flight alternative available to the claimant in India.
CONCLUSION
[45] For the foregoing reasons, the panel finds that the claimant is a Convention refugee pursuant to section 96 of the Act and accepts her claim.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, and sex characteristics Effective date: May 1, 2017 and Revised December 17, 2021
[3] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, Ottawa, Canada, effective date: July 18, 2022
[4] Exhibit 4, Notice of Intervention – July 17, 2013
[5] Exhibit 2, Basis of Claim Form
[6] Exhibit 5, Claimant’s disclosure ( BoC update, divorce decree, affidavit and letter ) July 21, 2023
[7] Exhibit 2
[8] Exhibit 1, Claim referral information from CBSA/IRCC
[9] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.)
[10] Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
[11] Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), at 134.
[12] Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.) at para 8.
[13] Exhibit 3 National Documentation Package, India, 30 November 2023, tab 2.1: India. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[14] Exhibit 3, National Documentation Package, India, 30 November 2023, tab 6.1: Treatment of sexual and gender minorities, including legislation, state protection, and support services, particularly in Mumbai, Kolkata, and Delhi (2017-May 2019). Immigration and Refugee Board of Canada. 9 May 2019. IND106287.E.
[15] Exhibit 3, National Documentation Package, India, 30 November 2023, tab 2.6: India. Freedom in the World 2023. Freedom House. 2023.
[16] Exhibit 3, National Documentation Package, India, 30 November 2023, tab 6.6: Living with Dignity: Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India. International Commission of Jurists. June 2019.
[17] Exhibit 3, National Documentation Package, India, 30 November 2023, tab 1.5: DFAT Country Information Report: India. Australia. Department of Foreign Affairs and Trade. 29 September 2023.
[18] Exhibit 3, National Documentation Package, India, 30 November 2023, tab 6.4: Country Policy and Information Note. India: Sexual orientation and gender identity and expression. Version 5.0. United Kingdom. Home Office. August 2023.
[19] Sokoli v. Canada (Citizenship and Immigration), 2018 FC 1072 (“Sokoli”), para. 15.
[20] Canada (Citizenship and Immigration) v. Kadenko [1996] FCJ No. 1376.
[21] Talo v. Canada (Citizenship and Immigration), 2012 FC 478 at para. 5
[22] NDP 6.1
[23] NDP 6.1
[24] MDP 6.4
[25] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
[26] Zamora Huerta, Erika Angelina v. M.C.I. (F.C., no. IMM-1985-07) at para 29.
[27] Ali v. Canada (Citizenship and Immigration), 2020 FC 93 at para 50.
[28] Ogundairo v. Canada (Citizenship and Immigration) 2017 FC 612 at 22-32. See also X (Re), 2019 CanLII 133734 (RAD) at paras. 26-29.
[29] A.H.A. v. Canada (Citizenship and Immigration), 2020 FC 787 at para. 13.