2024 RLLR 89
Citation: 2024 RLLR 89
Tribunal: Refugee Protection Division
Date of Decision: September 12, 2024
Panel: Alexandra Mann
Counsel for the Claimant(s): Arashveer Brar
Country: India
RPD Number: VC3-13735
Associated RPD Number(s): N/A
ATIP Number: A-2025-00362
ATIP Pages: N/A
REASONS FOR DECISION
[1] These are the reasons for the decision in the claim of XXXX 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 (IRPA).[1]
[2] This claim has been decided without a hearing in accordance with the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD)[2] and paragraph 170(f) of the IRPA.
DETERMINATION
[3] I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA.
ALLEGATIONS
[4] The claimant’s Basis of Claim form[3] contains her allegations. In short, the claimant fears persecution in India because she is a transgender woman.
[5] The claimant came to Canada in XXXX 2022 on a student visa. Upon her entry, the claimant was issued a 2-year study permit. In XXXX 2023, the claimant initiated her claim for protection.
ANALYSIS
Identity
[6] The claimant’s personal identity and her identity as an Indian national has been established by the certified copy of the claimant’s Indian passport in evidence.[4] I accept that she is a national of India and no other country.
Nexus
[7] To satisfy the definition of a “Convention refugee” found in section 96 of the IRPA, a claimant must establish that they face a serious possibility of persecution on account of their race, religion, nationality, membership in a particular social group or political opinion in their country of nationality.
[8] The claimant fears persecution in India because she is a transgender woman. I find that this fear has a nexus to the Convention ground of membership in the particular social group of transgender people. As such, I have assessed this claim under section 96 of the IRPA.
Credibility and Findings of Fact
[9] I find that the claimant provided credible evidence.
[10] In line with the Federal Court’s decision in Maldonado v. Canada, a claimant’s sworn testimony creates a presumption that the individual’s allegations are true unless there is a reason to doubt their truthfulness.[5] In this case, I find that there were no material inconsistencies in the claimant’s evidence, nor were there contradictions between the claimant’s evidence and the other evidence before me.
[11] The claimant submitted several documents in support of her claim, including:
- Medical reports confirming that the claimant is a transgender woman who has received gender-affirming health care;
- A letter from the claimant’s mother confirming her personal knowledge that the claimant is a transgender woman; and
- Photographs of the claimant expressing her gender identity.
[12] There is nothing on the face of these documents that causes me to doubt their genuineness or their credibility. I therefore find that these documents are genuine and credible, and that they carry significant weight. I thus find that these documents establish on a balance of probabilities that the claimant is a transgender woman.
Well-Founded Fear of Persecution
[13] In assessing the claimant’s fear of persecution, I note that the claimant did not initiate her claim for protection immediately upon arrival in Canada. As stated above, the claimant entered Canada on a two-year study permit in XXXX 2022, and she filed her refugee claim in XXXX 2023.
[14] In Gyawali v. Canada (M.C.I.), 2003 FC 1122, the Federal Court held that if a refugee claimant had held valid status from the date of entry until the time s/he filed a claim for protection, it is not reasonable for the RPD to question the claimant’s credibility solely on the basis that s/he failed to apply for refugee status immediately upon arrival in Canada.[6]
[15] Per Gyawali, as the claimant held valid temporary status as a student from the time of her entry until the time she filed her refugee claim, I do not draw a negative inference from the timing of the claimant’s refugee claim, either with respect to her credibility or her subjective fear. Given the claimant’s credible evidence that she is a transgender woman, and her action in seeking protection in Canada, I find on a balance of probabilities that the claimant has established a genuine subjective fear of persecution.
[16] I also find that the claimant’s fear of persecution in India is objectively well-founded. According to reports in the National Documentation Package (NDP), India has seen some improvement in the conditions for members of the Lesbian, Gay, Bisexual, Transgender, Plus (LGBT+) community over the past decade. Since the decriminalization of same-sex relationships in 2018 and the introduction of the Transgender Persons (Protection of Rights) Act in 2019, there has been a surge of pro-LGBT+ events and campaigns across India. Most of the major cities have seen Pride events taking place on a larger scale and with wider participation. However, despite these positive gains, LGBT+ individuals continue to face widespread discrimination and violence throughout India.[7]
[17] According to the U.S. Department of State (DOS) Country Report on Human Rights Practices in India for 2023, which is found at NDP Item 2.1, LGBT+ persons face physical attacks, rape, and blackmail. Additionally, members of the police are known to commit crimes against LGBT+ persons, and to use threats of arrest to coerce victims not to report the incidents.[8]
[18] NDP Item 1.5 reports that LGBT+ individuals d face intolerance, abuse and violence in their daily lives. This report also states that transgender people face high levels of discrimination in access to goods and services including education, employment and health care.[9]
[19] NDP Item 6.6 reports that LGBT+ persons frequently encounter threats to their personal safety and security from family members, landlords, and neighbours. This report states that due to systemic discrimination by landlords, transgender persons are often effectively segregated into localities that lack basic amenities, even when they have the economic capacity to afford better housing. These locations can be distant from public transport, sanitation, running water, healthcare, and employment opportunities.[10]
[20] This country condition evidence is consistent with the claimant’s written testimony that she faced various forms of mistreatment in India on account of her identity as a transgender woman, including ostracization, discrimination, harassment and physical violence.
[21] Based on the country condition evidence and the claimant’s person experiences, I find that members of the LGBT+ community – including transgender persons – face widespread persecution in India, which takes the form of physical violence and societal discrimination that results in serious restrictions on LGBT+ persons’ ability to earn a living and access education, housing and health care.
[22] Given my finding that the claimant is a transgender woman, and the evidence that transgender people face widespread persecution in India, I find that the claimant faces a serious possibility of persecution.
State Protection and Internal Flight Alternative
[23] The next questions for me to consider are whether the claimant has access to adequate state protection or an internal flight alternative (IFA) in India.
[24] As a starting point, there is a presumption of state protection unless there is clear and convincing evidence that state protection is inadequate or non-existent.[11] State protection will be found to exist when there is adequate protection at the operational level.[12] A claimant is expected to seek state protection unless doing so would endanger the claimant’s life,[13] or it is objectively reasonable to expect that state protection would not be forthcoming. [14]
[25] According to the country condition reports, the police in India do offer protection to LGBT+ persons in some cases, and there is evidence that the Indian police are making efforts to improve their response to violence against LGBT+ persons, including sensitivity training. However, there are also numerous reports that the police not only fail to offer protection to LGBT+ persons, but can also be the perpetrators of such violence. NDP Item 6.1 cites a report by the International Commission of Jurists which states that “the attitude and behaviour of the police is one of the biggest barriers to queer persons’ access to the justice system in India. Several people spoke to the ICJ about the violence, abuse, and harassment they suffered at the hands of the police.” The report further states that members of the transgender community are continually harassed, stigmatized, and abused by various actors, including police and judges.[15] Further, as stated above, the U.S. DOS reports that members of the Indian police are known to commit crimes against LGBT+ persons, and to use threats of arrest to coerce victims not to report the incidents.[16]
[26] Given this evidence, I find that it is objectively reasonable to expect that adequate state protection would not be forthcoming to the claimant in India. I thus find that the presumption of state protection has been rebutted in this case.
[27] With respect to the availability of an IFA, the country condition evidence cited above establishes that transgender people face widespread persecution across India. As such, I find that the claimant would face a serious possibility of persecution throughout the country and that she therefore does not have an IFA.
CONCLUSION
[28] For the forgoing reasons, I find that the claimant is a Convention refugee pursuant to section 96 of the Act, and I accept her claim for protection.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Immigration and Refugee Board of Canada (IRB), Instructions governing the streaming of less complex claims at the Refugee Protection Division, January 29, 2019.
[3] Exhibit 2.
[4] Exhibit 1.
[5] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).
[6] Gyawali v. Canada (M.C.I.), 2003 FC 1122.
[7] Exhibit 3, National Documentation Package (NDP) for India, May 31 2024 Version, Item 6.1.
[8] Exhibit 3, NDP for India, Item 2.1.
[9] Exhibit 3, NDP for India, Item 1.5.
[10] Exhibit 3, NDP for India, Item 6.6.
[11] Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), 2008 FCA 94.
[12] Kovacs v Canada (Minister of Citizenship and Immigration), 2015 FC 337 at paras 66-73.
[13] Gonzalez Torres v. Canada (Citizenship and Immigration), 2010 FC 234 at para 28; Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
[14] Gonzalez Torres v. Canada (Citizenship and Immigration), 2010 FC 234 at para 28.
[15] Exhibit 3, NDP for India, Item 6.1.
[16] Exhibit 3, NDP for India, Item 2.1.