2023 RLLR 83
Citation: 2023 RLLR 83
Tribunal: Refugee Protection Division
Date of Decision: November 28, 2023
Panel: Shirley Aciro
Counsel for the Claimant(s): N/A
Country: India
RPD Number: TC3-42307
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
DECISION
[1] MEMBER: I just had another question for you. Can you tell me your full name? Just because I note the Board had tried to contact you based on your Basis of Claim form and your documents. So, there is a middle name which was not on your Basis of Claim form. So, can you just confirm your full legal name?
[2] CLAIMANT: It is XXXX XXXX XXXX.
[3] MEMBER: Okay. Perfect. Okay. So, I will add that. Okay. So, thank you for indulging me with the long break. And I have considered all of the evidence and your testimony, and I am going to grant you your claim for refugee protection. So, for this part, what I am going to do is, I have reasons as to why I am granting your claim and I have to read them into the record. It is lengthy. So, what I am going to ask you to do is to just go on mute, and I will read the decision into the record, and then you will also receive a copy in writing.
[4] CLAIMANT: Okay. Just to confirm, the decision, is positive?
[5] MEMBER: Positive, yes. I have granted your claim.
[6] CLAIMANT: Okay. That — that is improving overall, I was anxious a little. It decides my life. So, thank you so much.
[7] MEMBER: You are welcome. So, for this part, yes. I will just ask you to please go on mute and I will let you know at the end when I am finished.
[8] So, I am ready to decide this matter now. This is a decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, a citizen of India. The date is November 28th, 2023. I am going to be giving you the reasons for this decision orally, but you will be provided with these reasons in writing shortly. The written reasons that you receive will reflect those that I am giving to you now, but they may, however, be edited for general readability, or to add references to legal citations or country documents.
The Law
[9] You are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, IRPA, I-R-P-A.
The Decision
[10] In coming to my decision today, I have considered your testimony and the other evidence before me. I find you are a Convention refugee pursuant to section 96 of the IRPA. I have considered and applied the Chairperson’s Guideline 9 in coming to this decision today.
ALLEGATIONS
[11] You allege the following in your Basis of Claim form, and narrative which is found at Exhibit 2. You are a transgender person and cannot live openly and freely in India. You came to Canada to claim protection. You allege if you return, you face persecution. You allege there is no state protection for you or an internal flight alternative.
Identity
[12] Your personal identity and Indian citizenship have been established on a balance of probabilities by your testimony and supporting documents filed, which namely include a copy of your passport, found at Exhibit 1.
Nexus
[13] I find there is a link between what you fear and the Convention ground out of particular social group, of transgender persons. And your claim has therefore been assessed under section 96.
Credibility
[14] In terms of your credibility, I find you to be a credible witness, and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim form. Your overall testimony was spontaneous, detailed, and consistent with your narrative and most compelling. You provided additional details requested in a forthright manner. You testified that you described yourself as a transgender woman.
You testified about living with bullying and harassment as a child in school and in an environment where you could not trust anyone. You had a hard time making friends in school. Your parents were emotionally, verbally, and physically abusive towards you since you were a child, and forced you to act masculine. You testified about your realization of being transgender in college. You experienced XXXX and felt like an outcast.
You approached your parents to seek help and also tried to connect with an organization in India to support LGBTQ+ individuals. However, there was only so much they could do due to lack of resources. Your parents took you to see XXXX and did not accept the diagnosis that you were given a XXXX XXXX. It was clear from your testimony that your family, particularly your father and mother, were not supportive of you or the LGBTQ+ community.
Further, you testified your mother is part of the political community in India. In your Basis of Claim, you state your mother’s political group, Maharashtra Navnirman Sena, MNS, is a group of religious and orthodox values which even suppressed basic human rights under the name of religion and promote violence as they see fit in their form of justice.
You testified about the medical treatments you are considering concerning your gender identity in Canada, and to being disowned by your parents once they found out about this while you were studying in Canada. You described a pervasive culture, intolerant — sorry. You described a pervasive culture of intolerance in India, despite attempts by the government to implement legislation which aim to protect LGBTQ+ communities. You said that police would not help you because in most cases they are the ones committing abuse against LGBTQ+ individuals.
You testified that during your own crisis where you XXXX XXXX XXXX XXXX, a police officer told you that you should be ashamed and next time you would be arrested for being trans. You testified that you felt accepted and free to express yourself in Canada. You were clearly passionate about pursuing a career in Canada, perhaps in XXXX XXXX. You said you were able to live your life — your real life in Canada where female clothing, long hair — and are accepted by society. You said this would not be possible in India. You said you plan to fully transition to a female and you want to live an honest life without having to look over your shoulder. A life where you do not have to hide your true self.
To corroborate your testimony and narrative, you submitted a support letter from your doctor in Canada, dated XXXX XXXX, 2022, corroborating you were under care for XXXX XXXX and were on a waitlist since XXXX 2020, with a first visit in XXXX 2021; a letter from a XXXX at XXXX XXXX XXXX XXXX XXXX XXXX, dated XXXX XXXX, 2022, corroborating your identity as transgender and that you were receiving XXXX for XXXX XXXX and further stating you reported abuse by your parents who did not support your XXXX; a copy of the referral note from the doctor in India referring you to be tested for XXXX XXXX in XXXX 2018 while you were in India.
I have no reason to doubt their — the authenticity of these documents and give them full weight in corroborating your allegations. And I find you are a transgender woman who fears harm in India based on your gender identity and member of the LGBTQ+ community. You came to Canada in XXXX 2020 and claimed protection in January 2023. You explained that you planned to study in Canada and had a valid study permit until XXXX 2023.
At Exhibit 4, you also provided printed copies of e-mail exchanges between you and the XXXX XXXX XXXX, says advisor at XXXX XXXX, concerning the difficulty you were having in paying school fees, wherein the advisor, who was aware you are a trans woman and the problems you faced in India with your parents, provided you with financial options to consider, with seeking refugee protection. being one (1) of those options based on your situation.
I find no reason to doubt the authenticity of the e-mails and give them full weight in corroborating your allegations and in establishing your subjective fear. You were a student with a valid visa, and you sought the assistance of the advisers at your college based on your situation. And it was because of this assistance you were able to start your claim for refugee protection in Canada.
You applied for an extension after the first visa had expired, and learned you could claim for protection here. You said you felt this would be a good decision as you learned that Canada would — was safe and would protect you. I find your explanation for delaying claiming to be reasonable and credible in light of your circumstances, and I have taken into account your lifetime of harassment, bullying, and lack of acceptance in my assessment of your credibility. I therefore find that your subjective fear is established by your credible testimony and supporting documents.
Objective Basis
Based on your testimony and the available documentary evidence, I find you have a well fear — a well-founded fear of persecution in India as a transgender woman. The Australian Department of Foreign Affairs and Trade Report, or DFAT, at Exhibit 3, at Item 1.5, notes a lack of protection, intolerance, abuse, and violence experienced by LGBTI persons.
The Constitution guarantees the right to equality before the law and equal protection. In 2014, the Supreme Court Of India ruled the rights and freedoms of transgender people are constitutionally protected, including the right to self-perceived gender identity. However, LGBTI students face barriers in education with bullying and harassment, difficulties accessing toilets, and obtaining identity documents. It is reported that most families do not accept their male child behaving in ways considered feminine, and children who do — sorry. And children who do so risk being subjected to violence.
The 2019 Transgender Persons Protection of Rights Act gave transgender persons a right to self-perceived identity, but registration with the government for official recognition is required after submitting proof of gender reassignment surgery. This legislation has been criticized for failing to prevent and reduce anti-transgender public sentiment and treatment. At Item 6.1, a Response to Information Request notes criticisms of the Transgender Persons Protection of Rights legislation, including denying transgender people the right to self-identification; criminalisation of begging, which is sometimes the only source of income available to some transgender people; failure to provide reservations in education and employment with this group, despite the directive to do so by the Supreme Court decision in 2014. And it also does not offer transgender persons adequate legal protection against sexual violence.
Further, the law does not provide a definition of discrimination, nor does it provide an enforcement mechanism for ensuring transgender people’s right to non-discrimination. This source reports that despite some progress with legislation, public attitudes have not changed substantially, and the transgender community is continually harassed, stigmatized, and abused by the police, judges, their family, and society. Transgender people are particularly vulnerable to discrimination in employment and housing.
Although discrimination based on sexual orientation and gender identity with respect to employment and occupation is prohibited, the law is only enforced in the formal sector and not in the informal sector, which represents approximately 90 percent of the workforce.
At Item 6.4, a UK Home Office report notes that transgender people face family pressure to cure them of their sexual orientation through psychiatrist or psychologist. This source notes that the journey to equality for trans individuals has only just begun, as much needs to be done to change the public perception of trans people — are often stigmatised and shunned and survived through begging or sex work. It also reported that transgender people face difficulty obtaining medical treatment and face systemic discrimination by landlords, effectively segregating them into localities which lack basic amenities.
I find you have established a subjective fear on a balance of probabilities and would face a serious possibility of persecution due to your membership in a particular social group, namely transgendered persons, if you return to India.
State Protection
There is a presumption of state protection in the absence of complete breakdown. This presumption may be rebutted with clear and convincing evidence. Based on your personal circumstances, as well as the objective documentary document — documentary — sorry. Based on your personal circumstances as well as the objective country documentation, I find that you have rebutted the presumption of state protection with clear and convincing evidence, as state protection would not be reasonably available to you.
At Item 6.1, a Response to Information Request notes that the attitude and behaviour of police is one (1) of the biggest barriers to queer persons’ access to the justice system in India, and police — sorry, and people report police refusal to file complaints from LGBTI persons. Transgender persons remain vulnerable to harassment, stigmatisation, and abuse by the police.
At Item 6.3, LGBTQ+ individuals themselves are reluctant to file complaints and to approach the legal system to seek justice and redress for abuses they suffer, due to prejudice, preconceptions, and stereotypes held by authorities.
At Item 2.1, according to the US Department of State report, there was a lack of investigation and accountability for crimes involving violence and discrimination targeting sexual orientation and transgender persons. Widespread impunity prevails at all levels of government. Some police officers committed crimes against LGBTQI+ persons and used the threat of arrest to coerce victims not to report those — the incidents. Experts have noted that some law enforcement officials tend to side with families’ interests against the queer community.
At Item 10.10, the UK Home Office reports human rights abuses committed by the police, including rape and torture, which are reported to be widespread and conducted with impunity. Persons from marginalised community — from — persons from marginalised minority communities are particularly affected.
Internal Flight Alternative, IFA
I have considered whether a viable IFA exists for you and find that there is a serious possibility of persecution throughout India. And therefore, no internal flight alternative is available to you, based on the lack of adequate state protection and widespread social intolerance, abuse, and violence perpetrated against transgender and LGBTQ+ persons.
In conclusion, based on the totality of the evidence and analysis above, I find you have established that you face a serious possibility of persecution in India based on the Convention ground of membership in a particular social group of transgendered persons. I therefore find you are a Convention refugee pursuant to section 96 of the IRPA, and I accept your claim.
——— REASONS CONCLUDED ———