2024 RLLR 4

Citation: 2024 RLLR 4
Tribunal: Refugee Protection Division
Date of Decision: January 10, 2024
Panel: Solape Ilori
Counsel for the Claimant(s): Gaurav Sharma
Country: India
RPD Number: TC2-25320
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A

DECISION

[1] MEMBER: I’m going to read my decision now and it is a positive decision.

[2] This is a decision of the Refugee Protection Division in the claim of XXXX XXXX, a citizen of India, who is seeking refugee protection, pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, the Act.

[3] Given the nature of this claim, I have taken into consideration the Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board.

[4] I have considered your testimony and the other evidence before me, and I am ready to render my decision orally.

[5] For the following reasons, I find that you are a Convention refugee, because you have established, on a balance of probabilities, that you face a serious possibility of persecution in India.

[6] The details of your claim are set out in your Basis of Claim form, and updates to your narrative in Exhibit 2.

[7] In summary, you allege a fear of persecution at the hands of your former husband and his family, on account of the violence you experienced at the hands of your former mother-in-law, and your former husband’s threat to kill you for persuading him to cease his involvement in his family’s business, which is connected to the mafia.

[8] With regards to your identity, I find that you have established your identity, on a balance of probabilities, by the copy of your Indian passport on file in Exhibit 1.

[9]
With regards to nexus, I find that there is nexus between your allegations and the Convention ground of membership in a particular social group, namely, gender.

[10] I have, therefore, assessed your claim under section 96 of the Act.

[11] In terms of your credibility, I found you to be a credible witness overall. You testified in a straightforward manner without embellishment, and I noted no material inconsistencies in your testimony, or contradictions between your testimony and the other evidence before me, which have not been reasonably explained.

[12] You testified that you met your former husband in 2015 when you were in Grade XXXX. You were in a relationship for 3 years, and you got married on XXXX XXXX, 2018, as evidenced by a copy of your marriage certificate in Exhibit 5, which I find to be genuine on its face. After you got married, you moved in with him and his family in XXXX, which is about an hour’s drive from your home in XXXX, Punjab.

[13] You were able to provide detailed testimony about what you endured at the hands of your former mother-in-law, only XXXX days into your marriage. You testified that she hit you with a burning wooden stick and locked you in a room. And after your husband was able to release you from the room, you went to your parent’s home and fled to Delhi, the following day, to stay with your mother’s childhood friend.

[14] You were able to leave India for Canada on XXXX XXXX, 2018, on a student visa you had obtained in XXXX 2018. According to your testimony, after arriving in Canada, your initial plan was for your former husband to join you, but after his Canadian visa applications were refused, he turned against you and threatened to kill you on May 19, 2019, and you have not heard from him since.

[15]
After this incident, you became depressed and spent your days at home or at the Gurdwara. And it was only after you were told by a lady at the Gurdwara about the possibility of making a refugee claim, and given the contact details of your counsel, that you were able to make your claim for refugee protection.

[16] In support of your claim, you have provided in Exhibit 5 affidavits from your father, the XXXX of your village, and your mother’s friend, whom you stayed with in Delhi, as well as a letter from the lawyer your father approached for advice in India. Which corroborates your testimony regarding the incidents that led up to your departure from India and provide details about what has transpired since you left the country.

[17] I find that these supporting documents further support your credibility.

[18] The evidence before me demonstrates that despite leaving India, you are still at risk of persecution there. According to your father’s affidavit, unknown men inquire about your whereabouts from your parents, neighbours, relatives, and the panchayat. And they are trying to find out when you will return from Canada.

[19] Based on the totality of the evidence before me, I find that you have established, on a balance of probabilities, your subjective fear of persecution in India.

[20] Just give me a second, I’ll be right back.

[21] I find that the objective evidence in the National Documentation Package, the NDP, supports your fear of returning to India.

[22] Sources in Tab 5.2 of the NDP indicate that domestic violence is an acute or endemic problem that is prevalent across all social groups in India. And it poses a serious threat to women’s physical integrity.

[23] The NDP also states that it is still common for women to live with their in-laws when they marry. And sometimes, domestic violence is committed by the in-laws or the extended family. Which is the situation in your case.

[24] According to Tabs 5.2 and 5.20 of the NDP, domestic violence perpetrated by family members and/or a spouse is the most common form of violence against women. And some estimates indicate gender-based violence affects over 27.5 million women in India. In addition, domestic violence is said to be widely tolerated by the state, and it is considered by Indian society to be private matter, as a societal tendency among Indians towards domestic violence is to silence the victims to protect family honour.

[25] In this case, you have endured violence at the hands of your former husband’s family and your former husband has threatened to kill you. Your former in-laws have also assaulted your parents in a bid to find you. In the light of this objective evidence, which is consistent with your allegations of gender-based violence at the hands of your former husband’s family in India, I find that your subjective fear of persecution is objectively well founded.

[26] With regards to state protection, states have presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown, and the claimant bears the burden of rebutting the presumption that state protection exists by inducing clear and convincing evidence.

[27] In this case, I find that there is clear and convincing objective evidence in the NDP to rebut the presumption of state protection.

[28] According to Tab 5.2 of the NDP, women are not adequately protected against domestic violence in India. And due to the pressure of the patriarchal society that normalizes violence against women and the pressure on the victims to maintain silence, victims often face dismissal and resistance to register their complaints at the police station.

[29] I, therefore, find that the presumption of state protection has been rebutted, on a balance of probabilities.

[30] With regards to internal flight alternative, IFA, at the outset of the hearing, I proposed Mumbai and Bangalore as potential IFA locations for you. And I have considered whether the agents of persecution have the motivation and the means to find you in the proposed IFA locations.

[31] Based on the totality of the evidence before me, I find that you have established, on a balance of probabilities, that agents of persecution are motivated and possess the means to find you in the proposed IFA locations for the following reasons.

[32] In Ali v. Canada 2020 FC 93, CanLII at paragraph 49, the Federal Court found that it would be unreasonable to expect family members to put their own lives in danger by denying knowledge of the appellant’s whereabouts, or deliberately misleading the agents of persecution.

[33] According to your affidavit from your father, your former in-laws came to his home and beat him and your mother, and threatened to kill you, to maintain their prestige as mafia men. In addition, your mother’s friend in Delhi indicated in her affidavit that on August 10, 2018, she was assaulted by two (2) unknown persons who visited her home in search of you.

[34] Therefore, in this case, I find that it would be unreasonable to expect your family members to put their own lives in danger by denying knowledge of your whereabouts, or deliberately misleading your former husband and his family.

[35] In addition, Section 11.62 of the Gender guidelines states that claimant is not obligated to go into hiding to be safe in the IFA.

[36] And given the continued interest in you by your former husband and his family, returning to India may mean that you will be living in hiding, which you are not obligated to do. Given that your mother – sorry, given that your former in-laws assaulted your parents and unknown persons in search of you assaulted your mother’s friend, who lives in Delhi, which is about a 6-hour bus ride away from your home in Punjab, in a bid to find you, I find that you have established, on a balance of probabilities, that your former husband and his family, being the agents of persecution, have the means and motivation to find you and harm you.

[37] For these reasons, I find that you would face a serious possibility of persecution throughout India, and there is, therefore, no viable internal flight alternative for you.

[38] Based on the totality of the evidence before me, I find that you are a Convention refugee, pursuant to section 96 of the Act, because you face a serious possibility of persecution in India.

[39] Accordingly, your claim is accepted.

——— REASONS CONCLUDED ———