2023 RLLR 147

Citation: 2023 RLLR 147
Tribunal: Refugee Protection Division
Date of Decision: December 8, 2023
Panel: Alannah Hatch
Counsel for the Claimant(s): Mary Keyork
Country: India
RPD Number: VC3-05627
Associated RPD Number(s): N/A
ATIP Number: A-2024-00768
ATIP Pages: N/A

                                      

DECISION

 

[1]                                          MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX, a citizen of India, who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons, I considered and applied the Chairperson’s Guideline 4. 

 

ALLEGATIONS 

 

[2]                                          The details of the claimant’s allegations are fully set out in your Basis of Claim form and were supplemented by her oral testimony. In summary, the claimant fears she will be physically assaulted or killed by her ex-husband, XXXX (ph), or members of his family because she divorced him. I will now refer to him henceforth as the ex. 

 

[3]                                          The claimant also fears her own uncles who have threatened to kill the claimant in an honour killing because she married her ex without her family’s approval and therefore has brought shame to the family. The claimant comes from an agricultural village in the district of Sangrur Punjab. Her family is Jat Sikh, and she comes from a traditional family. 

 

[4]                                          In early XXXX 2018, when the claimant was 20 years old, she secretly married her ex-husband. She left college without telling her family, went to his family’s home afterwards, and registered her marriage the next day in the XXXX XXXX XXXX. The day after her marriage, her ex-husband began to physically, sexually, and emotionally abuse the claimant. 

 

[5]                                          His parents were also physically and emotionally abusive, demanding money for her and attempted to use her and use her sister, who is a Canadian citizen, to obtain a Canadian visa for the ex-husband. They prevented her from leaving the home, prevented her from taking her college exams, and they locked her in her room. They regularly gave her sleeping pills, and they refused to take her to a doctor when she asked. They took her phone away from her. 

 

[6]                                          Her ex-husband also beat the claimant with a stick and threatened to kill her. At the end of XXXX 2018, the claimant took her husband’s phone, called her own parents, and asked them to bring her home. The ex-husband was angry when he learned of this and cut her arm with a blade and she fainted. 

 

[7]                                          The next day, the claimant’s family came with the village sarpanch to bring her home. Her ex-husband, at the time, tried to physically assault her father, and she thinks they — also her brother, and tried to prevent her from leaving. The village sarpanch and panchayat assisted the family to block her ex-husband and his family. 

 

[8]                                          Her family took her to the hospital and filed a police complaint. As she writes in her narrative, I was insulted by all of our neighbours. Anyone who would come to our house would insult me. During this time, my parents were still supportive of me, but they no longer trusted me. My parents and family always looked at me thinking, I am characterless. This is the moment I felt XXXX XXXX XXXX XXXX XXXX XXXX XXXX. 

 

[9]                                          Three (3) of the claimant’s uncles have told the claimants father that he should kill the claimant as she has disrespected her father, and now the whole family is not able to show their faces in the village. One (1) uncle, particularly, has hit her and said that he would personally kill the claimant. The claimant’s parents decided the claimant should move for her safety. And from XXXX 2018 onwards, she moved around, kept changing locations throughout friends in India. 

 

[10]                                    In XXXX 2019, the claimant filed for divorce, which was granted in XXXX 2020. The ex-husband continues to harass the claimant. Today, she has testified that he contacts her on various social media platforms using friends’ numbers, up to one (1) — at least once a month. 

 

[11]                                    During this time, the claimant sister helped the claimant to meet another man named XXXX, and through an arranged engagement, they were engaged to be married. However, in XXXX 2021, the claimant’s ex-husband learned of the engagement, called XXXX, and said he would kill XXXX if they got married. So, XXXX ended their engagement. 

 

[12]                                    The claimant left India for the United States on the XXXX of XXXX 2021 on a valid US student visa. However, she was unable to attend any courses due to her XXXX XXXX at the time. While in the USA, she continued to receive threatening calls from her ex-husband, who has threatened to kill her and to rape her. 

 

[13]                                    The claimant felt alone and XXXX, and came to Canada in XXXX 2022 at the suggestion of her sister. 

 

DETERMINATION 

 

[14]                                    I find the claimant is a Convention refugee pursuant to section 96 of the IRPA, as she has a well-founded fear of persecution for at least one (1) Convention ground, namely membership in a social group, as a woman in India, fearing gender-based violence. 

 

Identity 

 

[15]                                    The claimant’s identity as a national of India is established on a balance of probabilities by her sworn statements in her BOC and the copy of her passport in Exhibit 1. 

 

Nexus 

 

[16]                                    I find there is a nexus between the claimant’s allegations and the conventional ground of membership in a particular social group as a woman fearing gender-based violence. 

 

Credibility 

 

[17]                                    The Federal Court has held in Maldonado that when a claimant swears to the truth of certain allegations, it creates a presumption that those allegations are true, unless there is a reason to doubt their truthfulness. In this case, I have no reason to doubt the truthfulness of the claimant. 

 

[18]                                    Her testimony today was unembellished, emotional, and she answered all of my questions without hesitation and added details that were not included in her Basis of Claim narrative. There were no contradictions between her testimony and the other evidence before me, which includes extensive supporting documentation. 

 

[19]                                    This documentation is, among other things, an order granting her divorce; a panchayat apology agreement dated XXXX 2018, in which it states the ex-husband continued to beat the claimant during their marriage, that she was held captive in the house, and her life was in danger; the claimant’s father’s police complaint stating that the ex-husband and his family were beating the claimant for dowry and for a visa for her ex-husband, and because they threatened to kill; she also provided a letter from her sister describing the search for the claimant when she ran away to get married, and that she was prevented from talking to the claimant by the ex-husband’s mother. Also, she provided reference letters from friends; a medical note from the claimant’s mother, who went to the hospital department of XXXX for medical treatment, and the note says, “The daughter ran away twice.” She also provided a XXXX report for herself. And these are all contained in Exhibits 4 and 5.

 

[20]                                    I have no reason to doubt the authenticity of any of these documents, and I give them significant weight in corroborating the claimant’s allegations. I did not ask the claimant to testify or provide a detailed account of the abuse she received. I am cognizant of Item 10.3 of the gender Guidelines, that I should, wherever possible, avoid the use of personal sensitive information that is not necessary in coming to explain my reasons. 

 

[21]                                    I find that the claimant is credible. I find she has established the central allegations of her claim on a balance of probabilities, namely that the claimant’s ex-husband has continued to harass and threaten the claimant, and — because she divorced him, and that her uncles have threatened to kill the claimant for ruining the family’s reputation. 

 

[22]                                    I find the claimant has established that she has a subjective fear of her ex-husband and her uncles if she returned to India. 

 

Well-Founded Fear of Persecution 

 

[23]                                    I find the claimant’s subjective fear is objectively well-founded. In item 2.1, the United States Department of State indicates there is a significant human — that among the significant human rights issues in India, it includes a lack of investigation and accountability for gender-based violence, including domestic violence. 

 

[24]                                    Item 5.2 is an IRB Response to Information Request that states, “Sources note that domestic violence is justified in the eyes of a portion of the Indian population, and patriarchal attitudes prevail in a society in which women are viewed as inferior to men.” 

 

[25]                                    The UK  Home Office report in 5.9 quotes a 2021 article, Intimate Partner Violence.  It states violence, “Derives from a culture that tolerates and perpetuates the marginalization of women in general.” 

 

[26]                                    In addition, the objective evidence in 5.10 says that women who do not adhere to their family’s wishes with respect to marriage may be vulnerable to honour crimes, as reported in it — 5.10, the Supreme Court of India found that honour-based violence can be linked to the following situations, which include having unapproved relationships, refusing an arranged marriage, asking for divorce, leaving the family or marital home without permission, and causing scandal or gossip in the community. 

 

[27]                                    It states that these honour killings were a problem, especially in Punjab, in 2019. The victims are mostly women, and the perpetrators are primarily family members. 

 

[28]                                    The 2020 World Bank report in 5.9 states that there are two (2) broad types of motivation that underly honour killings in India. Control over women’s sexuality and reproduction, and anxiety over women’s exposure to modernity. 

 

[29]                                    A DFAT report cited in 2.9 states honour killings are purportedly to uphold family honour. 

 

[30]                                    So, based on the objective evidence before me indicating the prevalence of gender-based violence in India and that women may be victims of honour-based violence if they seek a divorce, marry without their family’s consent, or by causing scandal or gossip in the community, all of which the claimant has done, I find the claimant has established she faces a serious possibility of persecution at the hands of both her ex-husband and her uncles if she were to return to India, as both have threaten to harm and kill her if she does return. 

 

 

State Protection 

 

[31]                                    There is a presumption that unless in complete breakdown, states are capable of protecting their citizens. I find that the claimant has rebutted the presumption of state protection. The government of India has taken some steps to address gender-based violence, as shown in Item 5.9. They issued the — they enacted the Protection of Women Against Domestic Violence Act, which came into force in 2016 (sic). However, the evidence also indicates that there are barriers to justice for women and persistent gaps in enforcement, and that is from Item 5.9. 

 

[32]                                    The US Department of State (inaudible) already says there is a lack of investigation and accountability for these crimes. Multiple sources, state that state enforcement of this Act is poor and uneven. And Item 5.2 indicates, is due to a lack of capacity and resources of law enforcement and widespread corruption amongst police and military. 

 

[33]                                    I find that if the claimant were to return to her rural village in Punjab, which is a traditional community, state protection for the claimant against her uncles and her ex-husband would not be reasonably forthcoming. So, I find that she has rebutted the presumption of state protection. 

 

Internal Flight Alternative 

 

[34]                                    I find there is no viable internal flight alternative for the claimant in India. The objective evidence in 5.11 indicates that single women must depend on the support and goodwill of family members to live alone. And single women have serious struggles with basic life issues, such as getting a flat on rent. A woman is expected to live with her father or her husband, and a documentary on mobile, urban, and educated single women in India report that women may need to visit numerous apartments before securing one (1), and they may face additional and invasive questioning during the rental process. 

 

[35]                                    The DFAT report at 1.5, and I quote, “Being and remaining a single woman in India is difficult and relatively uncommon. Marriage is a central feature of social lives, and without a husband, social access is difficult. Sources told DFAT that it is difficult or impossible for single people, men or women, to rent accommodation, even in large cities. The difficulty is worse in rural areas. Divorces can be financially and socially devastating for women, especially if they were married young. Women may not have developed independent networks or life skills and may find transition to single life very difficult. The number of women who are single by choice is rising, however. And — but the Indian society is still very traditional and can be hostile to the unmarried. Single women can experience stigma and stereotypes, for example, perceptions of being choosy, morally loose, or headstrong.”  

 

[36]                                    However, there is a growing subculture of single women in books and film, but this phenomenon is still in its infancy. The evidence before me indicates it is practically impossible for women fleeing domestic violence to safely relocate without support networks, or unless the woman is skilled, wealthy, or educated enough to support herself. 

 

[37]                                    I do note that she does have the support of her parents. However, her uncles would be able to locate the claimant through her parents. I find the claimant, given her young age, her limited work experience, her XXXX XXXX education, would be on a balance of probabilities unable to support herself in an internal flight alternative, or have any social networks, despite her parents being supportive of her. 

 

[38]                                    I find that there is no viable internal flight alternative for the claimant. 

 

[39]                                    So, for all of those reasons, in conclusion, I find the claimant is a Convention refugee and I accept her claim. 

 

 

——— REASONS CONCLUDED ———