2024 RLLR 130

Citation: 2024 RLLR 130
Tribunal: Refugee Protection Division
Date of Decision: November 8, 2024
Panel: Adaeze Udeze
Counsel for the Claimant(s): Manjot Kaur Singh
Country: India
RPD Number: TC2-38084
Associated RPD Number(s): N/A
ATIP Number: A-2025-00724
ATIP Pages: N/A

DECISION

[1] MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX unknown with file number TC2-38084, who claims to be a citizen of India and is seeking protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] In assessing this claim and arriving at a decision, I have also considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, referred to as the SOGIESC guidelines.

THE ALLEGATIONS

[3] Your allegations are fully set out in your Basis of Claim form filed at Exhibit 2 and your narrative.

[4] In summary, you allege that you are fearful of persecution at the hands of your relatives and the police based on your sexual orientation as a bisexual man. You declare that there is neither a safe place nor state protection for you in your country.

DETERMINATION

[5] In coming to my decision today, I have considered your testimony and the other evidence before me. Based on the totality of the evidence presented, I find you to be a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act on the basis of your membership in a particular social group namely as a bisexual man. The details of my reasons are as follows.

ANALYSIS

Identity

[6] Your country of reference and identity as a citizen of India have been, have both been established on a balance of probabilities by your credible testimony and copies of your passports which is currently seized by the Canadian authorities.

Nexus

[7] I find that there is a link between your fear of persecution in India and one of the five (5) enumerated grounds for a refugee claim, namely membership in a particular social group of bisexual people. Therefore, I have assessed your claim under section 96 of the Immigration and Refugee Protection Act.

Credibility

[8] In assessing your credibility, I have considered all the evidence including your oral testimony, documentary evidence, exhibits, and the Chairperson’s guidelines. I have also considered several factors that are, that could affect your testimony including cultural differences, personal, social, and legal realities of SOGIESC individuals, as well as their mental wellbeing, the impact of trauma, and the inherent stress of refugee proceedings and the virtual environment at the hearing.

[9] I find you to be a credible witness generally. You testified in a straightforward and detailed manner. There were no material inconsistencies between your testimony and the other evidence in this claim that were not reasonably explained. Your testimony was largely consistent with your Basis of Claim and supporting documentation and the central aspects of your claim. Therefore, I believe what you have alleged in your Basis of Claim form and your oral testimony.

[10] Specifically, I find that you have established the ore allegation regarding your sexual orientation as a bisexual man. In your testimony, you described your life, your bisexual lifestyle in India in considerable detail.

[11] You testified that you made a full discovery of your sexual orientation while you were in high school and that in 2015, you developed feelings for a male classmate when you were in India. You testified that after graduating from high school, you opened up to your parents regarding your sexual orientation and this was met with very harsh and severe treatment from your father who beat you severely and even took you to a priest for cleansing.

[12] You testified that you are afraid of your family members and your relatives. You explained that your relatives have been issuing death threats against you since your sexual orientation was revealed. I find that you have established on a balance of probabilities your sexual orientation in India and the incidences of harm in India.

[13] In your testimony, you described your bisexual lifestyle with RG in considerable detail. You testified that you met him in 2007 in XXXX XXXX and was sexually involved with him for about one year after which he changed location, and you stopped communicating. I asked you questions regarding this relationship, and you provided sufficient and detailed testimony which is commensurate with the level and degree expected for someone who was in such relationship for the length of time. Based on your credible testimony, I find on a balance of probabilities that you have established your relationship with RG.

[14] You testified that you have a current romantic relationship with a male partner since 2021 (inaudible). You described how you met at the XXXX XXXX and became intimate after some months of friendship. You described what you liked about him and how close you are together. I find that you have provided fulsome testimony about your relationship with PS.

[15] You corroborated your oral evidence with supporting documentation found under Exhibit 6, 9, and 10 including letters of support with identity proofs from your neighbours, work colleagues, and your current partner, PS. I find PS’s letter to be genuine as it is handwritten and signed with his phone number and e-mail listed thereon.

[16] PS in his letter consistently expresses personal knowledge of your sexual orientation and confirmed your relationship with him. I however had a concern about the fact that PS referred to you as a close friend in his letter. I asked you to explain this and you testified that PS is not very open about your relationship with him because he is a married man and is living with his family here in Canada. I find your explanation reasonable because being that you are involved with someone who is married, it is not surprising that he may wish to downplay the degree of your relationship with him in order to avoid problems in his marital relationship.

[17] The contents of the documentary evidence you presented are consistent with what you have told me. Since there are no unexplained discrepancies in these documents, I accept and attach significant weight to them.

[18] Based upon the evidence provided, I find you to be credible. I am satisfied on a balance of probabilities that you have established your subjective fear of persecution in India on the basis of your sexual preference as a bisexual man.

[19] I find also that you have established on a balance of probabilities your same sex relationships with RG and PS in Canada. You testified of your membership with the SOGIESC community in Canada, that you are a member of the XXXX and you attend their meetings, gatherings, and volunteering events. You attached a statement of advocacy and pictures in support. The statement of advocacy appears genuine on its face.

[20] After reviewing the said letter, I do not have reasons to doubt the contents; therefore, I give it substantial weight.

[21] I further find that you have credibly established that you are a bisexual man and that if you are returned to India as a member of the LGBTQ [2SLGBTQI+] community, you would not be able to live openly b because there exists a possibility that you will face more persecution because of that.

Country Conditions

[22] Exhibit 3 which is the National Documentation Package for India contains mixed evidence about the Indian society as state authorities’ treatment of the LGBTQ sexual minorities in that country.

[23] The report by the UK Home Office which appears under NDP item 6.4 states that since the decriminalization of section 377 of the IPC in 2018, tolerance and acceptance of the LGBTI people has improved, particularly in large cities; however, the same source clarifies that anti-LGBTI attitude exists and that societal discrimination and violence against LGBTI persons is widespread, particularly in rural area.

[24] Similarly, the Australian Department of Foreign Affairs and Trade Report, DFAT, under NDP item 1.5 at page 36 states that while society is broadly conservative to the exclusion of the LGBTI diversity, there are pockets of acceptance especially in large cities, particularly Delhi and Mumbai among the upper classes; however, it goes on to say that even in more tolerant context, many LGBTI people may experience tolerance rather than acceptance. The sources add that discussion about sexuality is generally taboo in India which means that LGBTI people often lead hidden lives.

[25] Under NDP item 1.5 at pages 37 to 38, the DFAT assesses that LGBTI people face a high level of societal discrimination and a moderate risk of official discrimination. Violence against LGBTI people perpetrated by families is common. Few LGBTI people are willing to come out due to the need to avoid discrimination and avoid violence from their family members.

[26] According to a Response to Information Request under NDP item 6.1, Freedom House reports that despite the decriminalization of same sex sexual relations in India, some sexual and gender minorities still face violence and harassment in the country.

[27] It says that LGBTI groups reported that they face widespread societal discrimination and violence particularly in rural areas. They also face physical attacks, rape, and blackmail. There is a widely held anti-gay sentiment. People with diverse SOGIESC are viewed socially and within the context of family as unacceptable. Numerous sources indicate that there are credible reports of crimes involving violence or threats or violence to SOGIESC individuals and that they suffer from pervasive discrimination according to NDPP item 2.1 at pages 2 and 28.

[28] Under Exhibit 7 and 8 counsel furnished country of origin evidence and very recent articles which speak about the discrimination, violence, murder, death, and other attacks towards LGBTI+ people in the absence of a safe place for them in India. I have reviewed these articles, and I accept them in evidence for their probative values. The claimant is from a rural area in XXXX (ph) in XXXX XXXX and has established that he would face a serious possibility of persecution from his relatives and neighbours who have vowed to kill him for dishonouring the family image and from the society who are largely intolerant towards LGBTI individuals.

[29] Based on the objective evidence which specifies that there are still places in India where there still exists a great deal of intolerance for LGBTI people, I find that there is a forward-looking risk that the claimant will face discrimination amounting to persecution based on his bisexual orientation should he return to India.

[30] So, based on the objective country documentation for India cited above and your credible evidence, I find that if you are returned to India, you will face a serious possibility of persecution as a bisexual man.

[31] Accordingly, based on the evidence provided, the panel finds your subjective fear of persecution in the form of death threats from your family, from your relatives, and the neighbours to be objectively well founded.

State Protection

[32] I have considered whether state protection will be available to you if you are returned to your country, and I have concluded that it is not for the following reasons. The highlighted NDP for India also confirms that state protection is not available to members of the LGBTQ community in India.

[33] While there is a progress in acceptance of diverse SOGIESC individuals, NDP item 2.1 at page 46 acknowledges that a disconnect remains between court action and state action and progress is slow.

[34] I refer to NDP 6.4 at page 9 as well. There are also credible reports that people displayed the same discriminatory approach and that they harass and attack persons with diverse SOGIESC as well as advised them to seek treatment according to item 6.4 at pages 22 to 24.

[35] Although the Supreme Court of India indicated that there is need to provide sensitization and awareness training about diverse SOGIESC to the police, there has been no government requirement and individual state effort in this respect. Although same sex relations are no longer a criminal offense in India and there are signs of increasing acceptance of diverse SOGIESC, the lack of government action to implement the awareness and the sensitization programs for the police means that effectiveness and the durability of the decriminalization of same sex relations has not yet resulted in adequate state protection at the operational level.

[36] Considering the above discussed country evidence, applying the SOGIESC Guideline 9 and on a balance of probabilities, I find that the presumption of adequate state protection has been rebutted in this instance because state protection is not available to you as a bisexual man.

Internal Flight Alternative

[37] I have also considered whether a viable internal flight alternative exists for you in India. There are two (2) prongs to the IFA test, and both must be met for a viable internal flight alternative.

[38] In essence, the prongs are whether a proposed IFA is safe, and the second prong is whether a proposed IFA is reasonable.

[39] I had suggested the cities of Mumbai and Delhi as locations where you could move to and be safe in your country. This was discussed during the hearing, and you testified that you are not safe to live openly anywhere in India because the intolerance towards LGBTQ people are the same all over the country despite the law in the country.

[40] Indeed, the objective evidence, the objective country conditions for India indicate that negative social attitude and violence towards sexual minorities is widespread, the Internal Commission of Jurists reports that persons with diverse SOGIESC face significant discrimination in respect to housing and employment and that they face harassment and physical and verbal assault when seeking access to public spaces. I refer to NDP item 6.6 at pages 10 to 12.

[41] Although LGBTQ events and campaigns are all across India including Pride events, there is on a balance of probabilities no social acceptance of diverse SOGIESC people.

[42] Having reviewed the country condition evidence thoroughly, I conclude that the cumulative risk of violence and the significant discrimination against persons with diverse SOGIESC amounts to persecution. I find that these series of discrimination and persecution that the objective evidence talks about applies throughout India.

[43] I therefore find on the balance of probabilities that you will face significant discriminations amounting to persecution should you return to India.

[44] Based on the totality of the foregoing country condition evidence, I find on the balance of probabilities that a viable internal flight alternative is not available to you in India. With respect to the first prong of the IFA test, I find that you will face a serious possibility of persecution if you are to relocate because the risk you face is common throughout India. Since the IFA test has failed on the first prong, I see no need to proceed to the second prong of the analysis.

CONCLUSION

[45] Having considered all the evidence, I find that you face a serious possibility of persecution in India based on your sexual orientation.

[46] Consequently, I find that you, XXXX XXXX, are a Convention refugee pursuant to section 96 and I therefore accept your claim.

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