2024 RLLR 31
Citation: 2024 RLLR 31
Tribunal: Refugee Protection Division
Date of Decision: October 31, 2024
Panel: Richard Bernier
Counsel for the Claimant(s): Idorenyin E. Amana
Country: India
RPD Number: MC3-57527
Associated RPD Number: N/A
ATIP Number: A-2025-00128
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for my decision in the refugee claim of XXXX XXXX citizen of India, who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).
PRELIMINARY REMARKS
[2] In reaching this decision, given the Claimant’s allegations of gender-based violence at the hands of MK who abducted her and to whom the Claimant’s father pledged her in marriage, I considered and applied Chairperson’s Guideline 4,[1] which pertains to gender considerations in proceedings before the Immigration and Refugee Board. I considered all relevant factors, such as the social and cultural context in which the Claimant found herself, in light of the Guideline. Given the sensitive nature of her allegations, I am aware of the difficulties potentially faced by the Claimant in establishing her claim. These difficulties include the challenge of obtaining documents, cultural factors, the milieu of the hearing room, and the stress of responding to oral questions regarding these sensitive issues. As such, during the hearing I sought to address the Claimant with a heightened sensitivity and avoided unnecessary detail in my questions relating to harms she alleges from MK. Furthermore, in arriving at my findings, I have taken these considerations into account.
[3] I note further that the Claimant submitted in evidence a report from a XXXX whom she has been consulting[2] and that in this report the Claimant is diagnosed with XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. I have therefore also considered and applied Guideline 8[3], notably by seeking to lead the proceeding with sensitivity to help prevent the re-traumatization of the Claimant, by seeking to create a safe adjudicative environment for the Claimant to facilitate her giving of testimony, and by anticipating the possibility that trauma may impact the Claimant’s memory and ability to provide testimony. I have also taken the Claimant’s XXXX diagnosis into account when assessing the credibility of her testimony.
ALLEGATIONS
[4] The Claimant’s allegations are fully set out in her Basis of Claim[4] form and narrative (BOC), and in her testimony.
[5] The Claimant alleges that she faces a serious possibility of persecution in India on account of her de facto marriage to MK, a XXXX XXXX for a XXXX XXXX XXXX XXXX XXXX XXXX. The Claimant alleges that she was pledged in marriage to MK by her father in 2013 against her will, and that at MK’s hands she suffered physical abuse, threats, marital rape, and XXXX XXXX XXXX XXXX XXXX XXXX between 2014 and 2016; that MK has located her on two occasions since her escape from him in 2016, namely in Jalandhar in 2020 and in Gurdaspur in 2022; that on the second of these occasions, he assaulted her and threatened her; and that he has continued to threaten her family, demanding that she return to him.
[6] The Claimant also alleges that she faces a serious possibility of persecution from MK’s cousin P, who is a XXXX XXXX.
DETERMINATION
[7] I find that the Claimant has established that she is a Convention refugee, as she has established that she has a well-founded fear of persecution related to a Convention ground in India.
ANALYSIS
Nexus
[8] I find that the Claimant’s allegations establish a nexus to the Convention ground of women having experienced gender-based violence. I have therefore analyzed her claims pursuant to section 96 of the IRPA.
Identity
[9] I find, on a balance of probabilities, that the Claimant has established her personal and national identities by her testimony and by the identification documentation before me, namely a copy of her Indian passport.[5]
Credibility
[10] I found no major inconsistencies, omissions, or evasions in the Claimant’s testimony about the abduction and abuse she experienced at the hands of MK from 2014 to 2022. The Claimant was able to speak clearly about her family circumstances, the threats she herself experienced from MK, the limited support she had from her family and in Punjab generally, her decision to escape from MK, and about her fears if she were to return to India as a single woman.
[11] While I find that there were some issues with the Claimant’s testimony and evidence related to the involvement of MK’s cousin P, these are not determinative, as I find the Claimant was able to credibly establish, on a balance of probabilities, that MK abducted her on XXXX XXXX, 2014; that he subjected her to abuse including rape and XXXX XXXX XXXX XXXX XXXX until her escape from him on XXXX XXXX, 2016; that MK tracked and intimidated the Claimant at her places of work in 2020 and 2022; and that on the second of these occasions he assaulted and threatened her.
Well-Founded Fear of Persecution
[12] I find that the Claimant has established that she has a well-founded fear of persecution in India.
[13] I have considered MK’s pattern of persistent harm through the lens of the cycle of violence and coercive control that can characterize gender-based violence.[6] I conclude, on a balance of probabilities, that MK is more likely than not to seek out and harm the Claimant whom he perceives as his wife and whom he has repeatedly abused and threatened in the past, and that this creates a serious possibility of persecution for the Claimant.
[14] Moreover, the objective evidence supports the Claimant’s fear of returning to India.
[15] Domestic violence continues to be prevalent in India. The National Documentation Package (NDP) for India indicates that discrimination and violence against women remain high.[7]
[16] The Claimant testified that though she was forced to live with MK as his wife, they were never officially married. The objective evidence supports the conclusion that, far from mitigating the risk to the Claimant, the absence of a formal marriage to the man who inflicted sexual violence on her will simply expose her to a different kind of risk: the violence and mistreatment that is commonly meted out to women whose honour is deemed to have been sullied. “The incidence of rape not only causes physical injuries to the women but also more indelibly leaves a scar on the most cherished possession of women, i.e., her dignity, honor, reputation […]”[8]. The Supreme Court of India described “honour-based” violence as related to the following situations: “(i) loss of virginity outside marriage; (ii) pre-marital pregnancy; (iii) infidelity; (iv) having unapproved relationships; (v) refusing an arranged marriage; (vi) asking for divorce; (vii) demanding custody of children after divorce; (viii) leaving the family or marital home without permission; (ix) causing scandal or gossip in the community, and (x) falling victim to rape.”[9]
[17] Thus, based on the totality of the evidence, I find that the Claimant has established a well-founded fear of persecution based on her membership in a particular social group, namely as a woman who has experienced gender-based violence. I further find that the Claimant has established a prospective risk of persecution if she were to return to India, as there is a serious possibility that MK will continue to abuse her if she were to return.
State Protection
[18] I find, on a balance of probabilities, that the presumption of the Indian state’s operationally adequate protection of the Claimant has been rebutted with clear and convincing evidence for the following reasons.
[19] I asked the Claimant whether she had sought police protection against MK. She said that she had not done so. The Claimant testified that to do so would have been a waste of time as everyone already knew what was happening, and that she feared going to the police would provoke MK into escalating his violence to harms against her family.
[20] The objective country evidence confirms that MK would have broad support from several sectors of Indian society if he were to escalate his violence against the Claimant, as a reprisal for her denouncing him to the authorities: “domestic violence or violence against women is considered by Indian society to be a “private matter”; “societal tendency among Indians towards domestic violence is to silence the victims to protect family honour”; “there is tremendous pressure on women to bear the abuse in silence.”[10]
[21] The objective country evidence also confirms that the Indian state would be unlikely to protect the Claimant: it indicates that honour-based crimes, such as those which might well befall a woman who, like the Claimant, has refused an arranged marriage, has experienced rape, and has left the home of the man to whom she was pledged as a wife, “are not usually even registered by the police,”[11] while a 2021 article makes the case that rape within marriage is not treated as a crime[12] and that therefore police would be unlikely to investigate.
[22] In sum, “families, neighbours and police are often reluctant to interfere in cases of domestic violence as it is seen as a ‘private matter’.” In a particularly vivid example, “in April 2021, when a man stabbed his wife to death in a market in Delhi, bystanders didn’t come forward.”[13]
[23] I find, therefore, that it would have been reasonable in the past, and would be reasonable in the foreseeable future, for the Claimant to refrain from availing herself of state protection in India.
Internal Flight Alternative
[24] For the reasons provided below, based on an analysis under section 96 of the IRPA, I conclude that the Claimant does not have viable Internal Flight Alternative (IFA) in the areas I proposed, namely Delhi or Ludhiana.
[25] The test for assessing an IFA is two-pronged and is set out as follows in the Federal Court of Appeal decision in Rasaratnam.[14]
i. The Board must be satisfied on a balance of probabilities that there is no serious possibility of the Claimant being persecuted in the part of the country to which it finds an IFA exists and/or the Claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.
ii. the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for her to seek refuge there.
[26] As the Claimant established that the proposed IFAs would be unreasonable for her in her circumstances, the IFA locations fail the second test. Consequently, I will only be analysing Delhi and Ludhiana from the perspective of the second test here.
[27] The Claimant testified that it would be very difficult for her as single woman to relocate to the proposed IFAs.
[28] The objective country evidence confirms that in India “single women have to ‘depend [on] somebody’s goodwill – in-laws, parents, brothers and sisters-in-law’ in order to provide for them and their children” and that “single women encounter serious struggles with basic life issues such as getting a flat on rent or being taken seriously as a start-up entrepreneur or getting a business loan.”[15]
[29] It also confirms that if she could get a job, on average she would earn 65.5% of what a man doing the same job would earn.[16]
[30] In addition, the objective country evidence confirms “single women… or victims of domestic violence may find it difficult to relocate within India without the support or supervision of a male relative to access accommodation and services.”[17]
[31] I find, consequently, that the Claimant would encounter serious struggles in finding an apartment or a job, or getting an adequate salary, or accessing basis resources such as health services, if she were to return to India as a single woman and live in either Delhi or Ludhiana. The proposed IFAs are unreasonable for the Claimant in her circumstances.
[32] Based on the above, I find that there is no viable internal flight alternative for the Claimant.
CONCLUSION
[33] Having considered all of the evidence, I find that the Claimant faces a serious possibility of persecution in India based on her membership in a particular social group, namely as a woman having experienced gender-based violence.
[34] I find therefore that she is a Convention refugee pursuant to section 96 of the IRPA.
[35] Her claim is accepted.
——— REASONS CONCLUDED ———
[1] Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board.
[2] Document 4.1 – Claimant’s Evidence – C7 (XXXX Evaluation Report).
[3] Chairperson’s Guideline 8: Accessibility to IRB Proceedings — Procedural Accommodations and Substantive Considerations.
[4] Document 2.1 –Basis of Claim Form and Narrative for MC3-57527,
[5] Information from the referring Canada Border Services Agency (CBSA)/Immigration, Refugees and Citizenship Canada (IRCC): Copy of Claimant’s Passport.
[6] A.H.A. v. Canada (Citizenship and Immigration), 2020 FC 787 at para. 13.
[7] National Documentation Package, India, 31 May 2024, tab 2.1: India. Country Reports on Human Rights Practices for 2023. United States. Department of State. 22 April 2024; National Documentation Package, India, 31 May 2024, tab 5.2: Domestic violence against women; legislation, state protection and services available; whether victims have recourse to the law; support services available to victims of domestic violence (2017-June 2020). Immigration and Refugee Board of Canada. 18 June 2020. IND200255.E; National Documentation Package, India, 31 May 2024, tab 5.3: Tackling Violence Against Women: A Study of State Intervention Measures (A comparative study of impact of new laws, crime rate and reporting rate, Change in awareness level). Bharatiya Stree Shakti. March 2017; National Documentation Package, India, 31 May 2024, tab 5.4: “Everyone Blames Me”: Barriers to Justice and Support Services for Sexual Assault Survivors in India. Human Rights Watch. Jayshree Bajoria. 8 November 2017; National Documentation Package, India, 31 May 2024, tab 5.9: Country Policy and Information Note. India: Women fearing gender-based violence. Version 3.0. United Kingdom. Home Office. November 2022.
[8] National Documentation Package, India, 31 May 2024, tab 5.3: Tackling Violence Against Women: A Study of State Intervention Measures (A comparative study of impact of new laws, crime rate and reporting rate, Change in awareness level). Bharatiya Stree Shakti. March 2017, p. 65.
[9] National Documentation Package, India, 31 May 2024, tab 5.10: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016-May 2020). Immigration and Refugee Board of Canada. 4 June 2020. IND200256.E, p. 1.
[10] National Documentation Package, India, 31 May 2024, tab 5.2: Domestic violence against women; legislation, state protection and services available; whether victims have recourse to the law; support services available to victims of domestic violence (2017-June 2020). Immigration and Refugee Board of Canada. 18 June 2020. IND200255.E, p.5.
[11] National Documentation Package, India, 31 May 2024, tab 5.10: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016-May 2020). Immigration and Refugee Board of Canada. 4 June 2020. IND200256.E, p. 9.
[12] National Documentation Package, India, 31 May 2024, tab 5.19: Why it is Time to Recognise Marital Rape as a Crime. Article 14. Anupriya Dhonchak. 1 September 2021.
[13] National Documentation Package, India, 31 May 2024, tab 5.20: The Silent Pandemic of Violence Against India’s Women. Article 14. Mahima Jain. 5 July 2021, p. 5.
[14] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
[15] National Documentation Package, India, 31 May 2024, tab 5.11: Situation of single women and of women who head their own households without male support, including access to employment, housing and support services, particularly in Delhi, Mumbai, Chandigarh and Bengaluru; women’s housing, land, property … Immigration and Refugee Board of Canada. 3 May 2019. IND106275.E., page 2.
[16] National Documentation Package, India, 31 May 2024, tab 5.11: Situation of single women and of women who head their own households without male support, including access to employment, housing and support services, particularly in Delhi, Mumbai, Chandigarh and Bengaluru; women’s housing, land, property … Immigration and Refugee Board of Canada. 3 May 2019. IND106275.E., pages 3-4.
[17] National Documentation Package, India, 31 May 2024, tab 5.9: Country Policy and Information Note. India: Women fearing gender-based violence. Version 3.0. United Kingdom. Home Office. November 2022. page 12.