text:
Category: India
All Countries India
Date of Decision: March 10, 2020
Panel: R. Moutafova
Counsel for the Claimant(s): Mohammad Khan Khokhar
[1] This is the decision of the Refugee Protection Division (the panel) in the claim for refugee protection of [XXX] (the claimant), citizen of India. She claims refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the IRPA).1
[2] The Chairperson's Guideline 4- Women Refugee Claimants Fearing Gender-Related Persecution was considered and applied to the hearing and determination of this claim.2
[3] The claimant's detailed allegations are contained in her Basis of Claim form (BOC)3 and in her testimony. In summary, the claimant is unmarried [XXX] single woman, who graduated from the [XXX] with a [XXX] and found work in the [XXX] field. She fears serious harm or death in India at the hands of her former managers, who sexually assaulted her and blackmailed her. The claimant also fears serious hmm or death in India at the hands of a high-ranking police officer who colluded with her former managers and participated in the abuse and the blackmailing.
[4] Having considered ail of the evidence, including the claimant's testimony, the panel finds that the claimant faces a serious possibility of persecution in India on the basis of her membership in the particular social group of Indian women facing gender-based violence. The panel therefore finds that the claimant is a Convention refugee pursuant to section 96 of the IRPA and accepts her claim.
[5] The panel is satisfied that the claimant's identity has been established, on a balance of probabilities, by a certified copy of her Indian passport filed into evidence4.
[6] The panel finds that for the claimant, there is a nexus with one of the five Convention grounds, i.e. her membership in the particular social group of women fearing gender-related persecution.
[7] Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness. In this case, the panel has no such reason. The panel finds the claimant to be a credible witness and believes, on a balance of probabilities, the key allegations of her claim. The testimony of the claimant was spontaneous, emotional, detailed, and sincere. The panel did not find that she tried to embellish or exaggerate her allegations during her testimony. There were no significant inconsistencies or omissions with regard to the main allegations. Her testimony was consistent with the allegations in her BOC, and also included additional details that allowed the panel to more fully understand her claim.
[8] Since this claim involves gender related violence, the panel considered the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.5 The Chairperson's Guideline assists in assessing the key evidentiary elements in determining to what extent women making a gender-related claim of fear of persecution may successfully rely on any Convention ground and under what circumstances gender violence constitutes persecution. The Chairperson's Guideline also highlights that women refugee claimants may face special problems in demonstrating that their claims are credible and trustworthy. Factors that may affect their ability to provide evidence include difficulty in providing testimony on sensitive matters, cross cultural misunderstandings as well as social, religious, and economic differences. The Chairperson's Guideline was used to help assess the circumstances of this claim and to understand and apply the added sensitivities necessary to properly assess the evidence.
[9] The claimant is unmarried [XXX] single woman, who graduated from the [XXX] and found work in the [XXX] field. She was promoted soon to [XXX]. In [XXX] 2016 a new manager substituted her previous lady- manager. Soon the physical and psychological mistreatment of the claimant started at the hands of this manager, who proposed to the claimant to become his personal assistant as a manner of promotion. She refused and then the sexual harassment began. Details of the mistreatment are detailed in the BOC form. The claimant tried to complain to HR department, but was made to understand that a dismissal will follow, should she proceed formally with the complaint.
[10] The claimant decided to put the harassment to an end by leaving her job and she filed a notice of resignation.6 Her manager threatened her, that she would not find job in the [XXX] industry again. Nevertheless, she proceeded with her resignation and the employment contract was terminated upon the expiry of the notice, in [XXX] 2016.
[11] Indeed, the claimant was not able to find a job [XXX] for a while and, thus, decided to change the industry of occupation. She found a job in another town, where she lived with her parents, as a [XXX]. The professional relationships in the new workplace were very good to the moment when her old manager appeared in the office, and talked to her current manager in [XXX] 2018. Then the claimant was subjected to horrible mistreatment and molestation by her manager and a man in police uniform and, who was introduced as a Senior Superintendent of the Police Department. She was threatened with kidnapping of family members and troubles for her family should she attempt to complain to the police. The claimant was repeatedly intimidated by her manager, who would come to the claimant's parents' house looking for the claimant and threatening to ruin her family and more particularly – her dignity by posting the video-material on-line.
[12] The claimant felt she had no choice and resumed work in the office. The molestation and the sexual harassment continued on a regular basis. The claimant was devastated. Her mistreatment was turning into horrible sexual abuse, which led to profound [XXX].
[13] The claimant arranged for the continuation of her study in Canada and arrived in [XXX] 2018 and filed this asylum claim.
[14] The claimant outlined in her BOC that throughout her employment several men severely abused her, molested her and finally, learning about her plan to leave India and obtained student visa to Canada, abducted her and subjected her to a most horrible sexual violence, committed by several men. She provided credible testimony about her fears in India and the events that occurred in India that precipitated her departure. She testified about her employment experience and provided the expected details about it. She explained how, in early [XXX] 2017, she left her job, understanding that this is the only way to resolve the problem with the sexual harassment at work. She explained how she arrived to the decision to change the industries and the cities of employment. She explained that following the molestation at the new workplace, she unsuccessfully attempted to file a complaint in the police. She also described in detail how, in [XXX] 2018, she was intimidated by her manager, who came to her residence, insisting that she comes back and continue to work in the office, threatening to destroy her family and her reputation.
[15] The claimant's allegations are supported by corroborating evidence, including her employment history, which was consistent with her allegations.
[16] In the claimant's case, there were no relevant contradictions, inconsistencies, or omissions between her BOC, her testimony at the hearing, and the documentary evidence on file, that were not reasonably explained.
[17] The claimant's allegations are supplied by the objective documentary evidence on file. The National Documentation Package for India indicates that violence against women, including sexual violence, has increased in India,7 and also points out the inadequacy of state protection, as discussed below. The documentary evidence also is replete with references to abuses of authority and corruption within the justice system, including within the police, and the growing demand for police account ability.8
[18] The panel therefore finds that the claimant has established, on a balance of probabilities, that she suffered physical and sexual assault by her two managers, who initiated and organised violent and brutal sexual violence and harassment, involving a high-ranking police officer and unknown men, and that the police refused to perform their duties and to protect the claimant, when she attempted to file a First Information Reports (FIR) and to get police protection, but this was not successful.
[19] The panel finds that the claimant has rebutted the presumption of state protection, with clear and convincing evidence that the Indian state would be unable or unwilling to provide her with adequate protection.
[20] The documentary evidence indicates that in April of 2013, the President of India approved the Criminal Law (Amendment), which criminalizes several forms of violence against women and enlarged the definition of rape.9 However, the law has been criticized for not going far enough in certain aspects. According to the same source, the legislation "does not remove the effective legal immunity that security forces accused of sexual violence enjoy under special laws like the Armed Forces (Special Powers) Act."10 In addition, the documentary evidence points to inadequacy and inconsistency of police response to sexual assault across India, and the widespread need for the training of police officers in this regard.11
[21] ln this case a high-ranking police officer was among the claimant's agents of persecution. The panel has found credible the claimant's allegations of sexual assault at the hands of her ex managers and their friends. The panel has also found credible her allegations with respect to the unsuccessful attempt to complain to the police in Chandigarh and about the threats she received. Moreover, as indicated above, the documentary evidence is replete with references to police abuse and impunity throughout India.
[22] Given the evidence, the panel finds, on a balance of probabilities, that adequate protection would not be provided to the claimant in India.
[23] At the hearing, the panel asked the claimant whether she could relocate safely and reasonably to a large Indian metropolis, such as Mumbai or Kolkata.
[24] The test to apply to assess whether there is an Internal Flight Alternative (IFA) has two prongs. The first is to determine whether there is, in the proposed IFA, a serious possibility of persecution under section 96 of the IRPA or if there is a risk, on a balance of probabilities, that the claimant would be subjected to one of the harms set out in subsection 97(1) of the IRPA. The second prong involves determining whether it would be objectively unreasonable to expect the claimant to seek refuge there, taking into account the circumstances specific to her.
[25] The claimant testified that she would not be able to relocate, arguing that she fears that her manager will find her given that he has ties with the police which would enable him to find her. This already happened once when the claimant, hoping to put the assault to an end, resigned from her job, changed her location, going to another town, and even changed the industry of employment, but, nevertheless, she was found by her former manager.
[26] The panel finds that the claimant has demonstrated that the alleged agents of persecution – the claimant's managers and the colluding high-ranking police officer, have the means and the motivation to find and harm the claimant anywhere in India.
[27] Accordingly, since the possibility of an IFA fails on the first prong, the panel will not proceed to the second prong of the IFA analysis. Thus, the panel concludes that an IFA is not a reasonable option in the claimant's particular case.
[28] After assessing all of the evidence, the panel concludes that if the claimant returned to India, she would face a serious possibility of persecution under section 96 of the IRPA, as a result of her membership in the particular social group of women fearing gender-related persecution. Thus, the panel finds that the claimant, [XXX], is a Convention refugee. Accordingly, the panel accepts her claim.
(signed) R. Moutafova
1 Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.
2 Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996. Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act.
3 Document 2 – Basis of Claim form (BOC).
4 Exhibit # 1 – Package of Information from the referring Canada Border Services Agency (CBSA) / Immigration, Refugees and Citizenship Canada (IRCC); Certified true copy of the claimant's passport.
6 Exhibit# 6 – Notice of resignation.
7 Exhibit # 3 – National Documentation Package on India, 31 May 2019; Item 5.2: IND105130.E, 15 May 2015; Violence against women, including domestic violence, homelessness, workplace violence; information on legislation, state protection, services, and legal recourse available to women who are victims of violence (2013-April 2015).
8 Idem; Item 7.8: IDFC Institute, 20 April 2017, Safety ])-end,· and Reporting a/Crime; Item 9.6: Amnesty International, 2017, Justice Under Trial: A Study of Pre-Trial Detention in India; Idem; Item 9.7: IND105781.E, 5 May 2017; Independence of and coJTuption within the judicial system, including the scale of corruption at different levels (2015-May 2017);Item 10.5: Commonwealth Human Rights Initiative, December 2012, Police Complaints Authorities in India: A Rapid Study.
9 Idem.
10 Idem.
11 Idem, Item 5.3: BharatiyaStree Shakti, March 2017, Tackling Violence Against Women: A Study, if State Intervention Measures.
Date of Decision: February 11, 2020
Panel: Lesley Stalker
Counsel for the Claimant(s): Bashir A Khan
RPD Number: VB9-06130
Associated RPD Number(s): VB9-06155, VB9-06156
ATIP Pages: 000174-0000181
[1] MEMBER: These are the reasons for decisions in the claims of [XXX], her son [XXX] and her minor daughter [XXX]. The claimants are citizens of India and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. At the outset of the hearing, I confirmed the designation of the principal claimant, Ms. [XXX], as the designated representative for her minor daughter. The associated claimant, Ms. [XXX] son turned 19 on [XXX] the [XXX], 2020 and therefore does not require a designated representative. In considering the claims of the principal claimant and the minor claimant, I have considered and applied the Chairperson's Guideline 4 on female refugee claimants fleeing gender-based persecution.
[2] In considering the claim of the associated claimant, I have considered and applied Chairperson's Guideline 9 proceedings involving sexual orientation and gender identity and expression. I also considered Chairperson's Guideline 3 on procedural and evidentiary issues relating to child refugee claimants when assessing the claim of the minor claimant. Immediately prior to the hearing, counsel applied to admit a report from Dr. [XXX], a Winnipeg based [XXX] who specializes in [XXX], [XXX]. Her report included an apology from the [XXX] for her delay in finalizing the report. I admitted the report into evidence pursuant to Rule 36(4) on the basis of its relevant and probative value in interpreting cultural attitudes towards widows and sexual minorities in India. At the outset of the hearing, the principal claimant-, no pardon me-, at the outset of the hearing, the associated claimant and the minor claimant waived their right to be present throughout the entire hearing and were excused from the hearing room during the testimony of the principal claimant.
[3] This was done so that the adult femal-, female claimant could testify more freely about her experiences after the death of her husband. Similarly, when the associated claimant was ready to testify, the adult female claimant and the minor claimant left the room so he could speak more freely. The claimants had an observer in the hearing, he left at a sens-, sensitive point in the adult femal-, female claimant's testimony and remained outside the room for the rest of the hearing.
[4] The claimants' allegations are set out in the Basis of Claim forms. In essence, Ms. [XXX], the adult female claimant fears that she will continue to be assaulted and threatened by people on the basis that she's spurned the advances of a [XXX]-, [XXX]. Mr. [XXX] also wants the land that the adult female claimant and her son inherited from her husband after his death. She also fears that her status as a wis-, widow leaves her vulnerable to being ostracized, demeaned and sexually assaulted should she attempt to relocate within India. The associated claimant fears persecution or harm in India on the basis of his sexual orientation. The minor claimant fears that as a teenage girl without a father or other male relative in India to protect her, she is vulnerable to sexual violence as well as other forms of violence.
[5] I find that the adult female claimant is a Convention refugee on the basis of her gender and her status as a window-, widow. I find that the associated claimant is a Convention refugee on the basis of his membership in a particular social group, namely young gay men in India. I find that the minor claimant is a Convention refugee on the basis of her membership in a particular social group, namely girls without fathers or other adult male protection.
[6] The identity of the three claimants as nationals of India has been established by the testimony of the adult female claimant and by the claimants' passports, certified true copies of which are on file.
[7] The adult female claimant and the associated claimant both testified at the hearing. I found them to be credible witnesses. The adult female claimant was somewhat hesitant in her testimony, a fact which I attribute to shyness and cultural factors. She was emotional when speaking about the death of her husband and about the distress and shame she felt at different incidents in the intervening years. The associated claimant was also credible. He spoke freely and openly and with passion about his sexual identity. He described his long awareness of being different, the taunts and bullying to which he was subjected in India, his initial loneliness in Canada and the warmth he feels at having felt-, found an LGBTQ community into which he has been accepted. There were no material inconsistencies in the testimony of the claimants or contradictions between their testimony and the other evidence before me.
[8] The claimants filed a number of documents to corroborate their claims. These include a sworn statement from the adult female claimant's parents-in-law who attest that their son was fatally injured by [XXX]. The deponents say that they had accompanied the adult female claimant to the police to file a complaint with the attack on the son but the police refused to investigate. The deponents attribute this fact to [XXX] connections and wealth. They also confirm that after their son's death, [XXX] and his cohort continued to target the adult female claimant knowing that they could do so with impunity. That after [XXX] months of threats and harassments, the adult female claimant moved to her parent's home with her children but she was targeted there as well.
[9] The adult female claimant's parents also filed a sworn statement which contains similar information to that provided by her parents-in-law. They say that [XXX] and his cohort came to their home in [XXX], [XXX] [XXX], to threaten, harass and assault the adult female claimant. As a result, the parents kept their door locked at all times and their daughter lived, "like a prisoner" in their home. Other documents include a brief medical letter which confirms a scar on the adult female claimant's leg and the First Information Report relating to an-, at-, an attack on the three claimants in 2017. Finally, the claimants filed a letter from [XXX] in Winnipeg, an organization which describes itself as a support service for two spirit LGBTQ people who are arriving from around the world. The letter confirms that the associated claimant has attended the drop-in program at [XXX] and is in daily contact with the author of the letter. I note that the claimants' accounts are generally consistent with the IRB's National Documentation Package on India which will be addressed in greater detail below. Having found the claimants to be credible witnesses and having regard to the corroborative evidence before me, I accept the allegations as set out in their BOCs.
[10] In order to find that the claimants are Convention refugees, I must be satisfied that they have established a well-founded fear of persecution because of their race, religion, nationality, membership in a particular social group or political opinion. In Ms-, in the present case, Ms.-, the adult female claimant's fears relate at least in part to her refusal to marry [XXX], her husband's murderer. As such, I find that she has established a connection to a particular social group namely her gender and her status as a widow. I find that the associated claimant's claim has a Nexus to the Convention ground of particular social group, namely gay men and I find that the minor claimant's claim has a Nexus to the Convention ground in particular social group namely girls under the age of majority who Jack adult male protection.
[11] I will turn first to the adult female claimant' s claim. I find on a balance of probability that she would be-, that she faces a serious risk of persecution should she return to India. My reasons are as follows. She's a 41-year-old woman who was born in the Punjab region of India. She has some high school education but has never worked outside the home. When she was 21, she married [XXX]. [XXX] and his father owned a small farm on which they grew wheat, rice and other crops. In keeping with tradition, the adult female claimant moved into the home that [XXX] shared with his parents. In a village about 30 minutes away from Ms. [XXX]-, the adult female claimant's home village of [XXX], [XXX]. In 20-, 2006, [XXX] was beaten to death by his cousins [XXX] and his brother.
[12] [XXX] grievance with [XXX] was two-fold. First, he wanted to marry the adult female claimant himself. He had asked her to leave [XXX] and to marry him but she had refused. Secondly, he wanted [XXX] farm for himself. After her husband passed away, the adult female claimant went to the police to file a report but the police refused to take action. The adult female claimant attributes this to the fact that [XXX] is wealthy, is politically well connected and likely bribed the police. At the time of [XXX] death, the farm was in the name of his father. [XXX] father told the adult female claimant that he was worried that if something happened to him, someone else would seize the land. As I understand it, [XXX] father prepared a document which transfers ownership of the land to the adult female claimant and the associated claimant but has a continued right to occupy and use the land during his lifetime.
[13] After her husband's death, the adult female claimant continued to live with [XXX] parents. She says that she was repeatedly threatened and harassed by [XXX] and his supporters who believed that they had successfully got away with murder and could continue their pursuit of the adult female claimant as well as the land that they believed she now owned. After two months of threats and harassment, the adult female claim-, claimant moved from her in-law's home to that of her parents in the hope of eluding [XXX] and his associates. The adult female claimant says that she rarely left the home. A fact which was re-iterated in the statements filed by her parents and her parents-in-law. She says that she endured several sexual assaults. She also says that she and her children were beaten in 2001 and 2017 by men who demanded that she comply with [XXX] demands. On each occasion, she filed a police report but the police refused to-, to take action.
[14] Although the adult female claimant's-, I'm sorry scratch that. During his testimony, the associated claimant said that he wanted to share an incident that he believed his mother would not have volunteered. He said that approximately 5 years ago, he went to a playground. His mother was alone in the house. When he returned, two men wearing turbans and having shawls over their faces were leaving the house. He found his mother in her room crying. He said her hair was messed up and her clothing was tom. When she-, he asked what had happened, she begged him to leave her alone. They have not spoken about this incident. He believes that something bad happened to her but that her sense of shame prevented her from talking about it with others or indeed from sharing it with me.
[15] I find on a balance of probabilities that [XXX] and his cohort will continue to target Ms. [XXX] as retribution for his-, her spurning his offer of marriage and in his quest for ownership of the land. I find that Ms. [XXX] is not in a position to sell the land given that the legal documents which may have transferred title to her, stipulate that the original owners, her parents-in-law have the right to use and to live on the farm until they die. As such, it is not a simple matter of the adult female claimant simply surrendering or relinquishing the land.
[16] The question then becomes whether the adult female claimant can obtain protection from Indian authorities against the threats and assaults by [XXX]. I find she cannot. She has sought state protection with the help of her parents-in-law and her own parents on numerous occasions. On each occasion, the police failed to take action. The US Department of State report for 2018 found that the Immigration and Refugee Board National Documentation Package Tab 2.1 confirms that police in India are understaffed, under-resourced, undertrained and overburdened. Police failed to respond effectively, particularly when it comes to crimes against women. The Bertelsman Stiftung Index on political transformation at Tab 4.9 of the NDP reports that in general, underprivileged groups are particularly affected by the limited enforcement of protection laws and by the extremely slow progre-, process of the judicial system.
[17] De facto, disadvantaged social groups do not enjoy equal access to justice. That same report goes on to say that violence and discrimination against women remain significant issues meaning that they are one of the disadvantaged groups who do not have meaningful access to justice. Dr. [XXX], who's report I referred to above states that it is particularly difficult for widows to obtain state protection. She cites a prominent human rights lawyer in Delhi as saying, "If you are a woman in distress, the last thing you want to do is go to the police." She quotes another victim as saying-, she quotes a victim as saying, "If you have money or connections, you can get justice, if you don't, forget it."
Internal Flight Alternative for the Adult Female Claimant
[18] The next question is whether the adult female claimant might get away from the problems she has experienced by moving to another part of India. This is known as internal flight alternative or IFA. The IFA test is two prongs. For the first, I must be satisfied that there's no serious possibility of persecution in the proposed IFA. The second prong requires that I consider whether it is objectively unreasonable for the claimant to seek refuge in the proposed IFA. In the current case, I find that [XXX] and his cohort are unlikely to find the adult female claimant in the proposed IFA. I should note that I had proposed New Delhi as a potential internal flight alternative. However, I find it is objectively unreasonable to expect the adult female claimant to relocate to New Delhi or indeed anywhere else in India due to the stigmatization and marginalization that she would face as a widow with limited education and no work experience.
[19] The National Documentation Package says that-, reveals that women in India are exposed to a continum-, continuum of violence throughout their life cycle as some observers have put it from the womb to the tomb. Within a culture of patriarchy, discrimination and violence against women, women who attempt to set up independent households fare particularly poorly. The IRB's response to information request at Tab 5.1 states that single women, a category that embraces widows as well as divorced women and women who have never married have to depend on someone's good will, whether it be that of their in-laws, their parents, their brothers and sisters-in-law to provide for them and that they encounter serious struggles with basic life issues. The RIR states that nobody wants to rent to single woman-, women because a woman is expected to live with her father or her spouse. There are an estimated 10 to 15 thousand homeless women in Delhi. Home Jess woman are subject-, subject to constant violence, sexual assaults and murder from passers by and even from police and they Jack access to essential public services.
[20] Delhi is increasingly perceived as being the most unsafe city in India for women. Nearly 73% of women in Delhi say they do not feel safe in their own se-, surroundings and report to feeling unsafe all of the time and for this, I refer to the IRB report at Tab 5.2 of the NDP. Now, I recognize some of the factors that would make it-, that I have referred to may not apply to an affluent, educated or cosmopolitan woman from a major urban center but this is not the adult female claimant' s situation. She is marginally educated. Comes from a farming background and has never held a paying job. Moreover, she does not have those relatives with whom she can live outside her home region. Based on the evidence before me, I find on a balance of probabilities that the conditions the adult female claimant would face should she attempt to relocate to New Delhi could jeopardize her life and her safety. I therefore find that she does not have a viable internal flight alternative within India.
[21] I now turn to the claim of the associated claimant. I find that he has established a well-founded fear of persecution for reason of his sexual orientation. He testified that he realized he was gay from an early age. He began to apply makeup when he was 5 or 6 and would talk to girls about his dreams of marrying a boy. He says he was taunted and bullied by boys in the school who attacked him in the washroom and in the playground. He says that his mother asked him if he was gay while they were still in India. He says he initially denied this but then admitted it. He said she broke down upon hearing this. She said they were already vulnerable because of her status as a widow and she asked him not to tell him anyone about his sexuality. The adult female claimant had previously testified that she realized that her son was gay in 2015. She feared for her son 's safety because India is not safe for gay people. She says it has-, has a been a huge relief for both her son and for herself that he can finally be open about his sexuality without fear of harm.
[22] Even in the safety of Canada, she has not told her sister with whom she lives about her son's sexuality. When asked why she-, is so concerned, she says that she believes that Punjabi society will blame her for her son's sexuality because she had to raise him alone as a single parent after her husband was murdered. The associated claimant says that he follows news about treatment of members of the LGBTQ community in India. He says that the laws may have changed, same-sex relationships are no longer criminalized under the law but that societal attitudes have yet to shift. The NDP confirms that there are changes relating to the situation in-, of sexual minorities in India. In September 2018, in the decision of Johar, J-O-H-A-R, the Indian Supreme Court declared that the provisions of the crim-, penal code which criminalized consensual same-sex relations were unconstitutional. The decision was ground breaking. The question however, is whether it is resulted in changes on the streets which are meaningful, effective and enduring.
[23] The decision will undoubtedly change the shape of India in the years to come but the question is not whether the associated claimant may be able to live there safely in 5 or 10-years time but whether he can express himself fully now and avail himself of meaningful protection. The US Department of State report at Item 2.1 of the NDP says that people in the LGBTI community-, LGBTQ community continue to face physical attacks, rape and blackmail. The UK Home Office report on sexual minorities in India which was released in October 2018 and can be found at Tab 6.4 of the NDP reports that many religious organizations including Hindu, Christian and Muslim groups are up in arms about the Johar decision. An IRB Response to Information Request on the treatment of sexual minorities found at Tab 6.1 of the NDP quotes the ILGA for the proposition that Indian courts have taken positive steps to protect gay and lesbian couples. Overall, however, the ILGA says there is no protection for sexual minorities in India, either in the constitution in terms of broad protection or in employment or against hate crimes or incitement.
[24] Dr. [XXX] also provides interesting incites. She quotes a student activist as saying that the ideology of marrying a woman havening-, having children is deeply rooted in Indian society and that this attitude places LGBTQ persons on the periphery of a society that enforces social rules with threats and violence. She notes that law enforcement only rarely prosecuted gay men when Section 377 of the Indian Penal Code was still enforced. That is because most enforcement was provided by societal policing. She notes the International Commission of Jurists findings about violence and discrimination against sexual minorities and states that the associated claimant could be subject to anti-gay honor abuse in India. In this she is referring to recent-, research that says that in collectivist societies such as India where homosexuality is considered dishonorable, homosexuals are at great risk of violence and death. In sum, I find the law has changed but is not yet sufficiently entrenched that a young man can assert his identity freely and openly without a risk of occurring hate crimes. As such, I find the associated claimant has established a well-founded fear of persecution on the basis of his identity as a gay man.
State Protection and Internal Flight Alternative for the Associated Claimant
[25] I find that the associated claimant has rebutted the presumption of adequate state protection in India. The res-, IRB Response to Information Request quotes the International Commission of Jurists for the proposition that the attitude and behaviour of the police is one of the biggest barriers to queer persons access to the justice system in India. In several cases, the police refused to file complaints submitted by queer persons owing to bias or stereotypes. Several people have spoken about violence, abuse and harassment that they suffered at the hands of the police. So queer people's trust in the police is further eroded by the frequency of their negative interactions with the police, reducing the likelihood that they will seek protection. I further find that the associated claimant cannot avail himself of an internal flight alternative in India because the social distrust and loathing of gays extends across the country. The evidence indicates that LGBTQ communities are developing and they're growing bolder in some cities, however, these communities are relatively small. I find that in all the circumstances, it would be objectively unreasonable to expect a person as young and vulnerable as the associated claimant to relocate to New Delhi or elsewhere in India.
[26] Finally, I turn to the claim of the minor claimant. She is a 16-year-old girl. She no longer has a father. She says that she was attacked by [XXX] children throughout her schooling and by his goons in the market place in 2011 and again in 2017 shortly before her flight from India. The country reports in the National Documentation Package lead me to conclude that the minor claimant, a girl without a father or other close male relative in India to assist and protect her, faces a serious possibility of sexual violence. And for here, for this proposition, I turn to the UK Home Office report found at Tab 5.9 of the NDP which says that discrimination against women remains a major issue in India. Especially in the still extremely patriarchal north, women tend to be discriminated against from the outset in their families. With poor families, this means worse access to food and sanitation. Some substantial progress has been made as far as access to education is concerned but India's female labor force participation rate has steadily declined. The report continues that central to the problem of gender-based violence is that Indian men and women have been socialized to believe that men's dominance over women is normal and acts of women-, violence against women are justified.
[27] The UK Home Office refers to findings of the UN Human Rights Committee Special Rapporteur that says that sexual violence including rape is widespread across the country and perpetuated-, perpetrated in public and private spheres. There is a general sense of insecurity for women in public spaces especially in urban settings. Women are easy targets of attack including sexual violence whether it yu-, involves using public transportation or sanitation facilities or on the way to collect wood or water. The report continues that many victims of sexual violence carry a deep sense of shame which is further exacerbated by the stigma and exclusion-, exclusion they experience, especially from family members and the community. The Home Office report also refers to the UN Special Rapporteur's Observation that economic develop in India has bypassed women who continue to struggle at subsistence levels and this too increases their marginalization.
[28] I have already addressed the reasons that I find that the adult female claimant cannot avail herself of an internal flight alternative in India and I find that the same reasons apply to the situation of the minor claimant. I find therefore that the minor claimant is unlikely to receive adequate state protection from the police and that the risk of sexual violence extends across the country. This forecloses the possibility of an internal flight alternative.
[29] Based on the above analysis, I conclude that [XXX], the adult female claimant is a Convention refugee. I find that [XXX] is a Convention refugee based on his identity as a gay man. I find that [XXX] is a Convention refugee based on her membership in a particular social group namely, girls without fathers or other adult male protection. I accept your claims.
———- REASONS CONCLUDED ———-
Panel: Marlene D.M. Hogarth
Counsel for the Claimant(s): Ian D Hamilton
[1] [XXX] is a citizen of India. He claims refugee protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1
[2] The claimant alleges the following.
[3] The claimant was in a secret homosexual relationship with [XXX] from [XXX], 2013 until he left India in [XXX] 2018.
[4] The claimant is afraid to return to India because the police learned of his homosexuality and informed his wife. She stated she would divorce him.
[5] The claimant further fears returning to India because members of a political party want to kill him because he did not leave the ADMK party. The claimant fled to Malaysia in 2014 and worked there for two years. He returned to his village in [XXX] 2016 when he thought he would be safe.
[6] In [XXX] 2016, the ADMK leadership asked him to begin recruiting new members as it was safe for him to work for the party. When the head of the ADMK died, the party split into two different groups. The claimant worked for one faction. [XXX], a member of the other faction, disrupted the claimant's meeting and when the claimant refused to disband the meeting, he was hit on the head with a bat. [XXX] threatened his life and left.
[7] The claimant moved to Ootty and worked there from [XXX] 2018 until [XXX] 2018. On [XXX], 2018, the police visited the claimant's home looking for him. When he returned he was to go to the police station because [XXX] told the police that the claimant threatened his life and the police wanted to question him. The claimant's wife advised the claimant not to return home as it was not safe.
[8] The claimant found an agent who arranged a visa and the trip to Canada where he could ask for refugee protection.
[9] The claimant left on [XXX], 2018 and claimed refugee protection on October 26, 2018.
[10] After the claimant was in Canada, his friend [XXX], his secret gay lover in India, spoke out at a political meeting criticizing the party for abusing the claimant. [XXX] was arrested on [XXX], 2018 for committing hate crimes against the public. The police seized [XXX] cell phone and found compromising photos of the claimant and [XXX] together.
[11] The police informed the claimant's wife that her husband was engaged in homosexual activities and the police wanted to talk to him about it. The claimant left India to travel to Canada to make a claim for refugee protection on October 25, 2018.
[12] The panel finds that the claimant is a Convention refugee according to section 96 of the Immigration and Refugee Protection Act.
[13] Before making its decision, the panel took into consideration the SOGIE guideline 9.2
[14] The issues are credibility, state protection and internal flight alternative.
[15] The claimant's identity as a citizen of India was established by his testimony and the certified copy of his passport, held by CBSA.3
[16] The claimant is afraid he will be killed by members of the splinter group of the ADMK party and he is afraid he will be harmed because he is a homosexual. The claim is based on political opinion and membership of a particular social group. Therefore, the claim will be assessed according to ss. 96 and 97(1) of IRPA.
[17] The panel will analyze the claim for protection because the claimant is a homosexual.
[18] The claimant testified that when he married his wife, he considered it a love marriage, not one that was arranged. However, he began to fantasize about having a sexual relationship with a man. When he met [XXX], they began a relationship that lasted until the claimant came to Canada. The claimant had to hide his true sexual orientation as, at that time, it was against the law. This law was changed on September 6, 2018.
[19] The claimant did not have problems in India because of his sexual orientation. He never revealed that he was gay except to [XXX], his partner in 2013. He lived "in the closet" and continued his relationship with [XXX] in secrecy while he continued his married life. His wife did not learn of his sexual orientation until the claimant was in Canada. She no longer speaks to him and has moved the family to her father's home.
[20] The claimant is afraid to go back to India and live his life as a gay man. The claimant testified that while living in Canada, he has learned that people accept his homosexuality and he can walk freely with his partner. He cannot do that if he returns to India.
[21] The panel finds the claimant testified in a straight forward manner; there were no embellishments nor any attempts to exaggerate the allegations during the oral testimony. He testified that he does not consider himself bisexual; he is gay. He is only interested in men. The claimant noted that he has a partner whom he met when he was volunteering at the [XXX] 2019 Gay Pride Parade. They entered into a sexual relationship in [XXX] 2019 and have been together since then. His partner was at the hearing and acted as a witness. His partner's sworn testimony confirmed the evidence given by the claimant. Therefore, the panel accepts that the claimant is gay and is presently in a homosexual relationship and finds the claimant to be a credible witness.
[22] The law made it legal to be a homosexual in India in late 2018, however, according to the evidence, the general public have not accepted such relationships. The documentary evidence4 states, "Lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons faced physical attacks, rape and blackmail. LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas…" Some police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents. Further documentary evidence5 indicates that although a landmark decision was made by the Indian Supreme Court, the discrimination against people based on their sexual orientation has not ended. The Board's evidence6 indicates, "[t]he attitude and behaviour of the police is one of the biggest barriers to queer person' access to the justice system in India". They suffer violence, abuse and harassment at the hands of police and police have refused to file complaints by queer persons. The panel finds that based on all of the evidence, the attitudes remain the same despite the change in the law. The laws might be in place and mechanisms of protection for homosexual persons, however, the panel finds that at this particular time they are not effective. Therefore, there is no state protection available and since the negative societal attitudes against homosexuals are prevalent throughout India there is no viable internal flight alternative available to the claimant at his particular time.
[23] Therefore, the panel finds that based on the evidence, including counsel's submissions, the claimant would face a serious possibility of persecution throughout India.
[24] For the foregoing reasons, the panel concludes that the claimant is a Convention refugee pursuant to ss. 96 of the Immigration and Refugee Protection Act.
[25] The Refugee Protection Division accepts his claim.
(signed) Marlene D.M. Hogarth
1 Immigration and Refugee Protection Act, (S.C. 2001, c. 27).
2 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, May 2017
3 Exhibit 1
4 Exhibit 3; 2.1
Date of Decision: June 25, 2020
Panel: Georgia Pagidas
Counsel for the Claimant(s): Odette Desjardins
RPD Number: MB8-01694
Associated RPD Number(s): MB8-01304
[1] This is the decision of the Refugee Protection Division (the Panel) in the claim for refugee protection of [XXX] ("the Principal Claimant") and his partner [XXX] ("the Co Claimant"), both citizens of India. The Claimants are seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).1
[2] In deciding this claim, the Panel applied the Chairperson's Guideline 9 on Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.2
[3] The Panel finds that the Claimants are "Convention refugees" pursuant to section 96 of the Act and accepts their claims, for the following reasons.
[4] The Claimants' allegations are detailed in their Basis of Claim (BOC) forms, their narratives3 annexed thereto which are identical in substance and only adjusted to the first person where applicable, and their statement update. The following is a summary of the allegations therein.
[5] The Principal Claimant is from [XXX], in the state of Haryana, India. The Co-Claimant is from [XXX], in the state of Haryana, India. They allege that they are and have been in a same-sex relationship since [XXX] 2014. They fear returning to India because of their sexual orientation.
[6] They were arrested by the police and were released on the payment of bribes with warnings to never be together again.
[7] They fear that, should they return to India, they will be arrested and abused, and possibly killed by the police, society or their respective parents who are all against them.
[8] The Claimants' personal and national identity as citizens of India are established, on a balance of probabilities, by the documentary evidence on file, including a copy of their Indian passports.4
[9] The Claimants' allegations establish a nexus to a Convention ground of particular social group, specifically homosexual men. The Panel has, therefore, analyzed the claim pursuant to section 96 of the Act.
[10] Testimony given under oath is presumed to be true unless there is a reason for doubting its truthfulness. In this claim, the Panel has no such reasons.
[11] The testimony of the Claimants was straightforward, detailed, and sincere. The Claimants were spontaneous in their answers, and the Panel did not find that they tried to embellish their allegations during their testimony. The Claimants answered clearly and openly to the questions that were asked by the Panel and their counsel. Their allegations were coherent and plausible based on the documentary evidence.
[12] The Panel found the Claimants to be credible as analyzed in the examples hereinafter.
Testimony of Principal Claimant
Discovery of Sexual Orientation and First Relationship
[13] When asked about his discovery of his sexual orientation, the Principal Claimant was able to provide a great deal of detail about how he saw himself growing up. He explained that from the age of 14, he realized that he was different when he compared himself to other boys. For instance, the boys in his class only wanted to talk about girls during the lunch break. He testified that, "from inside he preferred men more and he was afraid why he felt like that (sic)". Asked if any of the boys in school knew about how he felt he replied, "those kinds of things were not spoken about (sic)".
[14] The Claimant testified that his first intimate same-sex relationship was with the Co Claimant. He testified that prior to that he would just hang around men, talking closely to them and "sometimes touching". He testified that it was only when he met the Co-Claimant in the beginning of [XXX] 2014 that he felt he could have a full relationship with another man.
[15] He testified that they met while playing [XXX]. They exchanged eye contact, but it was only the day after when the coach called them in for a briefing that the Co-Claimant approached him, asked for his name and told him, "your game is as good as how good you look (sic)". They started talking; he enjoyed that and found him very wise. The Principal Claimant took the Panel through the development of his relationship with the Co-Claimant, which started with a friendship, playing [XXX] and training together, then three weeks later came the intimacy and the emotional commitment.
[16] When asked how he and the Co-Claimant spent their time together, the Claimant testified that most of the time they stayed in the Co-Claimant's room; sometimes they would go very far to a neighbouring village 20 kilometres away from theirs. Otherwise, they did not go out very much because they were afraid someone would see them and they did not know of places where other gay men socialized, because it was considered a sin. He added that when they did go out, they did not hold hands nor look each other in the eyes so as not to raise suspicion.
Testimony of the Co-Claimant
[17] The Panel also asked the Co-Claimant numerous questions about his sexual orientation and his relationship with the Principal Claimant. He answered all questions clearly and without hesitation. He described his relationship with the Principal Claimant in a spontaneous manner. When asked what drew him to the Principal Claimant, he said he liked his eyes and he was a nice person. When asked what were his expectations from this relationship, he testified that they already lived together and in future they want to marry, get a house and live a good life. The Panel saw glimmers of emotion and happiness as he was testifying about his relationship.
[18] When asked what would happen to him should he return to India, he testified that he came to Canada to save his life. If he returns to India, he knows about the law, but society doesn't change and police are corrupt: the next time they arrest the Claimants, they will formally issue a summons and they will have to pay even more money to be released.
[19] The Panel finds that the amount of detail provided by the Co-Claimant could only be provided by a man who is genuinely in a relationship with another man and who lived these experiences. There was coherency to the Claimants' oral testimonies that demonstrated the Claimants' credibility. There were no discrepancies between the Claimants' testimonies and their BOCs, nor were there any relevant omissions. As a result, the Panel finds that, on a balance of probabilities, the Claimants are credible with respect to their same-sex relationship.
[20] When asked about the one event that made them fear for their life and leave India, the Principal Claimant testified that it was on [XXX], 2016, when a police officer "caught them red-handed (sic)". The Panel asked the Principal Claimant to explain what he meant. He provided the Panel with tremendous amount of detail about the incident and its aftermath. He explained that the police officer was a neighbour of his with whom he shared a common wall. He testified that the Co-Claimant often came to visit him and he would take precautions by ensuring that the police officer was at work and by locking his door. On that particular day, the officer came home very early: "it was roughly 12h30pm and he saw that the Principal Claimant's door was ajar (sic)", and he walked in and saw the Claimants together in an intimate position.
[21] The Panel asked how the police officer could access his room apartment. The Principal Claimant was able to situate the Panel by describing the layout of the two apartments and their proximity. When asked how the police officer reacted, he testified that he started to beat them with his baton. He specified that most police officers are not in uniform, but they always have their baton with them which is what he beat them with.
[22] The Panel asked if the Claimants were arrested by the officer. The Principal Claimant replied "no", but added that he did not allow them to leave and he called other policemen who came and took them to the police station. When asked what happened at the station, he testified in a sincere and open manner without hesitating or exaggeration. He confirmed the allegations in the BOC narrative. He explained that he was separated from the Co-Claimant and was tortured by the police, with the village Panchayat present who insisted that the police teach him a lesson. He got released on payment of a bribe by his father. Then 84 villagers got together and took the decision to take his life, "because they have the authority (sic)". His family blamed the Co-Claimant for enticing their son.
[23] When asked about his fear, the Principal Claimant was spontaneous and sincere in expressing to the Panel his feelings of fear ever since these incidents occurred. He added that his fear is ongoing despite the fact that he is in Canada, because the Panchayat is a member of the 84 Khap Panchayat and his [XXX], with whom he is still in touch and who lives in another village, informed him that the members of the Khap Panchayat and the police are looking for him all around.
[24] The Panel notes that the Principal Claimant was very emotional and shaking when describing the aforesaid incidents. The Panel noted that the Co-Claimant extended his hand to provide him with support and he explained to the Panel that the Principal Claimant has still not been able to overcome these traumatic experiences and is being followed by a physician for stress. The Panel noted a tenderness and deep caring in the Co-Claimant' s testimony and action of support which is a further testament to the realness of the Claimants' relationship.
[25] Overall, the Claimants' ability to provide so much detail on the allegations already contained in their BOCs leads the Panel to conclude that they genuinely experienced all the above incidents.
[26] There was an openness and spontaneity to the Claimants' testimonies that demonstrated the Claimants' credibility. There were no relevant inconsistencies between their narratives in their BOCs and their testimonies at the hearing that were not reasonably explained.
[27] As a result, the Panel finds, on a balance of probabilities, that the Claimants are credible with respect to the aforementioned incidents and the resulting difficulties they experienced.
[28] Given the objective country evidence hereinafter discussed, the Panel finds that their fear is objectively well-founded.
Corroborating Documentary Evidence
[29] The Claimants provided documentation corroborating their allegations, the most important of which are an order issued by the village Panchayat to kill the Principal Claimant5, an order issued by the village Panchayat to socially boycott the Principal Claimant and his family6, a letter of support by [XXX]7, the Claimants' gay friend with first-hand knowledge of their relationship, numerous pictures8 of the Claimants alone in personal moments, in gay clubs with their gay friend [XXX] and others, and at home together with friends celebrating their birthdays, and a medical certificate and prescription for stress from the Principal Claimant's physician, submitted post-hearing and accepted by the Panel.9
[30] For the aforementioned reasons, the Panel finds that the Claimants have established their allegations, on a balance of probabilities.
[31] The Panel finds that the Claimants have rebutted the presumption of state protection with clear and convincing evidence that the Indian state would be unwilling or unable to provide them with adequate protection. The Panel took into account the substantial documentary evidence from independent and reliable sources on the situation in this country from the National Documentation Package for India.10
[32] The Panel recognizes that the documentary evidence reports11 that same-sex consensual relations were decriminalized in India, in September 2018, when the Supreme Court declared that Section 377 of the Penal Code was unconstitutional. The evidence reports12 that the decriminalization of same-sex conduct will not immediately result in full equality for the LGBT community in India. While the Supreme Court judgment held that the aforesaid reading down of Section 377 shall not lead to the reopening of any concluded prosecutions, the documentary evidence reports that it is too early to draw any conclusions for pending arrests.
[33] The orders by the Khap Panchayat against the Principal Claimant and the Claimants' arrests occurred prior to the Court decision, and the Claimants' names are still on file with the police. Furthermore, the documentary evidence13 confirms that violence, abuse and harassment of homosexuals suffered at the hands of the police still exist throughout India and the Panel therefore finds that the claimants would be at risk.
[34] Moreover, the objective evidence on the powers of Panchayats and Sarpanches14 confirms that though it is the "responsibility of a district-level bureaucrat who is appointed from above" to work in close cooperation with the police, "if, however, a sarpanch has acquired considerable informal power and influence, then she or he may in practice strongly influence the behaviour of the police".
[35] Further, according to objective evidence, corruption remained a significant problem within the Indian police force15 as confirmed by the credible evidence of the Claimants that they had to pay the police bribes to be released.
[36] Under the above circumstances, the Panel finds that the police would not protect the Claimants, on a balance of probabilities. Moreover, the Claimants would be putting their lives and physical security in danger by even approaching the authorities to ask for protection.
Internal Flight Alternative (IFA)
[37] The Panel proposed Mumbai as a possible IFA for the Claimants.
[38] The Panel finds that the Claimants have established that, on a balance of probabilities, they face a serious possibility of persecution in Mumbai. The Panel therefore finds that there is no viable IFA for the Claimants in India.
[39] The Claimants are both persons of interest and known to the police through their arrests and the orders of the Khap Panchayat. While the evidence does confirm there is no national police16 in India, the police do have the ability to track people through the "Criminal Tracking Network and Systems" (CCTNS) database, which is shared by 36 out of 37 states, and is enabled in 13,439 out of 15,398 police stations.17 The Principal Claimant's credible testimony is that the police and the members of the Khap Panchayat are still looking for him.
[40] Moreover, the documentary evidence18 reports that tenant registration is existent in Mumbai. The evidence specifies that the purpose of tenant registration is not only for the authorities to confirm that tenants are not wanted criminals, terrorists or fugitives from the law, but also "to get a history of the person".19
[41] Furthermore, both Claimants were firm about their fear of being beaten, humiliated, harassed and sexually attacked by the police, society and their families should they return to live in India. They testified that they would have to live in hiding. Their fear is confirmed by the above cited evidence and the citation below20, which confirms that there is still violence and discrimination by members of the community against persons who are homosexual:
"Stereotypes about the LGBT community are widespread and pervasive, and it is these stereotypical perceptions which are responsible of the hatred, violence and discrimination which LGBT persons face on a day to day basis".
[42] In addition to the aforementioned, it is well established in law that the possibility of IFA is not viable if the person has to live in hiding.
[43] In view of all these particular circumstances, the Panel concludes that the Claimants would face a serious possibility of persecution should they return to India and live in Mumbai or any part of the country.
[44] Given that the first prong of the IFA test has not been met, there is no need to consider the second prong. The Panel, therefore, finds that there is no viable IFA for the Claimants in India.
[45] For the foregoing reasons, the Panel concludes that there is a serious possibility that the Claimants would be persecuted on the basis of their membership in a particular social group, namely homosexual men, in the event they return to India.
[46] The Panel finds that [XXX] and [XXX] are "Convention refugees" and therefore accepts their claims.
(signed) Georgia Pagidas
2 Chairperson's Guideline 9 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017.
3 Document 2 – Basis of Claim Form (BOC); Document 4 – Exhibit C-1: Updated statement.
4 Document 1 – Package of information from the referring Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC): Passports.
5 Document 4 – Exhibit C-2: Order to kill issued by Village Panchayat [XXX] (Haryana).
6 Document 4 – Exhibit C-3: Order to socially boycott issued by Village Panchayat [XXX]
(Haryana).
7 Document 4 – Exhibit C-4: Letter of support by [XXX].
8 Document 4 – Exhibit C-5: Pictures, in bulk.
9 Document 4 – Exhibit C-9: Medical certificate and prescription for stress from Principal Claimant's physician.
10 Document 3 – National Documentation Package, India, 31 May 2019 (NDP India), tab 6.1: Response to Information Request, IND106287.E, Immigration and Refugee Board of Canada, 9 May 2019.
11 Document 3 – NDP India, tab 6.6: Country Policy and Information Note. India: Sexual orientation and gender expression. Version 3.0, United Kingdom, Home Office, October 2018.
13 Supra, note 10.
14 Document 3 – NDP India, tab 9.4: Response to Information Request, IND102791.E, Immigration and Refugee Board of Canada, 17 April 2008.
15 Document 3 – NDP India, tab 10.10: Country Policy and Information Note. India: Actors of Protection. Version 1.0, United Kingdom, Home Office, January 2019: paras 4.1.1 and 5.2.5.
16 Supra, note 11, para 4.4.1.
17 Document 3 – NDP India, tab 14.8: Response to Information Request, IND106289.E, Immigration and Refugee Board of Canada, 14 May 2019
20 Document 3 – NDP India, tab 6.2: Decriminalising the Right to Love: Navtej Singh Johar v. Union of India. State-Sponsored Homophobia 2019. 13th Edition, International Lesbian, Gay, Bisexual, Trans and Intersex Association, Arvind Narrain, March 2019.
Date of Decision: August 21, 2019
Panel: A. Green
Counsel for the Claimant(s): James Gildiner
ATIP Pages: 0000112-000116
[1] MEMBER: I've had an opportunity to consider your testimony and the all the other evidence before me and I am now rendering my oral decision. You will be provided with a transcript of my decision which I reserve the right to edit.
[2] The claimant [XXX] claim is a citizen of India who seeks refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.
[3] As I stated I've not only considered your testimony and the other evidence before me I've also considered the chair person's guideline 9 with regards to the proceedings before the Immigration and Refugee board involving sexual orientation and gender identity and expression.
[4] I've also considered the information on the situation in your country of origin India found in the boards national documentation package as well as in the information provided by counsel in Exhibit 5.
[5] The details of the allegation on which you relying can be found in your basis of claim form Exhibit 2. In summary the claimant is a twenty two year old gay man who was born in India on the [XXX] of [XXX]. The claimant hails from a high cast family in India and social standing is important.
[6] Growing up the claimant experienced homophobia from his family and society. He wrote in his narrative and testified about the fact that he was constantly bullied. He also wrote about the fact that he was admonished for being too feminine. His family denied his sexuality, they tried to change the way he walked and talked, limited his hand jesters and he also expressed that his father still thinks there's something wrong with him mentally and physically.
[7] The claimant was also verbally, physically and sexually abused and harassed since a young age because of his sexual orientation.
[8] On [XXX] 2015 the claimant came to Canada to study at the [XXX]. He has not returned to India since that time.
[9] In 2016 the claimant met a man with whom he had a relationship and eventually married. The relationship later broke down but during that relationship the claimant developed the courage to come out to his parents about his sexual orientation. They threatened to cut him off financially and eventually did which prevented the claimant from pursuing his studies.
[10] In 2018 the claimant learned from a friend about the refugee protection process and filed a refugee claim at the end of September 2018.
[11] On the basis of your membership in a particular social group that is your status as a gay man. The panel finds that you have established that you face a serious possibility of persecution for convention ground pursuant to Section 96 of the Immigration and Refugee Protection Act.
[12] I find that the treatment that you experienced as a gay man in India including family rejection, harassment and social ostracism cumulatively amounts to persecution.
[13] In terms of your personal identity I find on a balance of probabilities that you are a national of India, this was established by your sworn testimony and a certified copy of your passport issued by the Republic of India found in Exhibit 1.
[14] In regards to your sexual orientation I find that you have established your profile as a gay man. You gave extremely credible testimony regarding this. I believe your story regarding your experiences in India with your family and with society in general. You testified in a straightforward manner, you answered questions without exaggeration or embellishment and your oral testimony was consistent with the allegations provided in your basis of claim form narrative and consistent with the information on the situation in your country of origin.
[15] In regards to subjective fear I do note that there was a delay in claiming is somewhat lengthy delay considering that you came to Canada in 2015 and only filed your claim in 2018. I do note however that you had a valid student permit at the time that you filed your claim and you did provide an explanation for the delay which I accept and so I draw no negative inference.
[16] In regards to the objective basis for your fear Item 2.1 of the national documentation package for India the latest version dated March 2019 indicates that lesbian, gay, bisexual, transgender and intersex persons faced physical attacks, rape and blackmailing in India. LGBTI groups reported they face widespread social discrimination and violence and that in fact some police committed crimes against LGBTI persons and use the threat of arrest to coerce victims not to report the incidents. This is consistent with the information found in Item 6.1 of the national documentation package as well as the information provided by your counsel in Exhibit 5.
[17] I do note that consistent with the information provided in September of 2018 same sex sexual acts were decriminalized in India, however neither same sex marriages nor civil unions are recognized in the country.
[18] 6.1 states that in spite of the fact that same sex relations have been decriminalized there's still a need for acceptance, many people still have the mentality that homosexuality is wrong. The change in law does not mean that people in the LGBTI community are starting to disclose their sexuality especially to their parents because this is still a problem in India.
[19] In regards to the fact that violence and discrimination exist it indicates that in spite of the fact that decriminalization has taken place of same sex relations some sexual and gender minorities still face violence and harassment in India. This is also consistent as I said with the information provided by your counsel in Exhibit 5 and its also consistent very much with your evidence as to what you believe would happen to you in spite of the fact that same sex relations have now been decriminalized in India.
[20] I conclude based on my review of the documentary evidence that your fear of persecution in India due to your sexual orientation has an objective basis.
[21] In regards to whether or not you would receive adequate state protection I take into consideration Guideline 9 which says that even though there have been small steps in the law it doesn't mean that you would have adequate state protection in your country of origin. In fact Item 2.1 yes indicates that even though activists welcomed the verdict in of September 2018 they believe it is still too early to determine how the verdict would translate into social acceptance or into safe and equal opportunities for LGBTI persons.
[22] Also Item 6.1 indicates that a report from 2017 states that obstacles for justice (ph) for sexual minorities in India is still an issue because of the attitude and behaviour of the police, viewed as one of the biggest barriers to LGBTI persons accessing justice in India. It indicates that there is violence, abuse and harassment suffered at the hands of the police in India and that in several cases the police have refused to file complaints submitted by members of the LGBTI community due to bias or stereotypes.
[23] This is also consistent as I stated before with Item 2.1 which indicates that some police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents.
[24] Based on my review of the documentary evidence I find that adequate state protection would not be reasonably forthcoming to you in India and that you have rebutted the presumption of state protection. Likewise I've considered the documentary evidence when looking at internal flight alternative.
[25] I've also considered your own testimony where you expressed that as someone who's not considered the standard heterosexual male and as someone who bend the gender quite often and in the manner in which you express yourself you would not be accepted in Indian society and so I've taken that into consideration and I find that you have no viable internal flight alternative that you would not be safe in any area of the country because you would not be able to live openly as a gay man without fear of harassment and violence.
[26] So in conclusion I find that you have established the presence of subjective fear, that you do have an objective basis of that fear, that you face a serious possibility of persecution in India. I therefore accept your claim pursuant to Section 96 of the Immigration and Refugee Protection Act. Good luck to you.
Panel: Nick Bower
Counsel for the claimant(s): Ramin Joubin
[1] These are the reasons for the decision in the claim of [XXX], a citizen of India who claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1
[2] In rendering my reasons, I have considered and applied the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.2
[3] The claimant alleges that she is at risk of being killed by her husband's family to satisfy their honour.
[4] The claimant was born in and grew up in Punjab, India. Except for her time in university, the claimant lived with her parents until she married.
[5] She attended university at [XXX], a city [XXX] or [XXX] hours away. She stayed in [XXX] for two days a week to attend classes, and returned home for the other five days each week. While in [XXX] she lived in a [XXX] with other women. She graduated with a bachelor's degree in [XXX].
[6] After graduation, the claimant returned to live with her parents. Her parents did not let her stay in [XXX]. She looked for work in her hometown without success. Her parents did not support the claimant looking for work elsewhere in India, and the claimant did not want to live on her own because she was afraid that she would get a bad reputation as a single woman living alone.
[7] The claimant's family and the family of her future husband were acquainted through distant relatives. Her future husband, [XXX], contacted the claimant through Facebook in 2014 and they stayed Facebook friends until he asked her family to marry her. The claimant's family agreed, and the claimant and [XXX] were engaged in 2015.
[8] [XXX] brother, [XXX], and sister-in-law, [XXX], lived in Canada. After the claimant confessed her anxieties about her upcoming marriage to [XXX], [XXX] passed this information to [XXX] parents. [XXX] parents were angry that the claimant was opposing her husband, and right before the formal engagement ceremony [XXX] parents called off the engagement.
[9] [XXX] insisted on marrying the claimant, and his parents relented. The claimant and [XXX] were engaged in summer 2015, and married on [XXX], 2015. Following the marriage the claimant moved to live with [XXX].
[10] For the first few months after they were married, [XXX] consulted with the claimant regarding decisions for the couple. He later stopped considering the claimant's opinion, and the claimant was not even allowed to choose what food to prepare for family meals.
[11] In mid-2017 the claimant discovered that [XXX] had been abusing drugs when he suffered a [XXX]. The claimant spoke to [XXX] family about seeking treatment for him, but they did not cooperate. The claimant believes that [XXX] family, who continued to dislike the claimant, were hoping that [XXX] addiction would drive the couple apart. [XXX] did eventually go to treatment for his addiction.
[12] [XXX] family arranged for the couple to visit [XXX] brother and sister-in-law in Canada, and the claimant and [XXX] arrived in Canada in [XXX] 2018. They stayed with [XXX] brother and sister-in-law. The sister-in-law, [XXX], was the same woman who had worked to turn [XXX] family against the claimant years before.
[13] In Canada [XXX] continued to use drugs. [XXX] told the claimant's mother-in law that the claimant was blaming the mother-in-law for the claimant's and [XXX] problems. The mother-in-law spoke to [XXX] about this. A few weeks after the claimant and [XXX] arrived in Canada, [XXX] confronted the claimant, and the two argued. [XXX] then assaulted the claimant, choking her.
[14] Disagreements between the claimant and her in-laws continued. Later, on [XXX], 2018, [XXX] and [XXX] insisted that the claimant leave their home. The claimant did so the next day.
[15] The claimant went to stay in a women's shelter. She returned to her in-laws' home a few days later in the company of police to collect the rest of her belongings. The claimant told the police about [XXX] assault on her, and the police returned to arrest [XXX].
[16] Although there were no charges against [XXX] that proceeded to court, [XXX] parents learned that he had been arrested. Others in their community in Punjab heard about the arrest from their own relatives in Canada. The claimants' parents-in-law felt shamed that their son had been arrested, and threatened to kill the claimant once she returned from Canada. The parents-in law made this threat to the claimant's parents, who passed the information to a family friend, who in turn passed it to the claimant.
[17] The claimant has had no contact with her parents-in-law since she left [XXX] brother's home. She has had no contact with her own parents for several months.
[18] The claimants' in-laws had owned a high-earning [XXX] that earned them social status in the community. Her wedding was attended by significant local figures, including actors, retired military officers, and criminals. The claimant saw some of these people visit her in-laws' home socially on other occasions.
[19] However, after the claimant came to Canada, she learned that her in-laws had lost the [XXX], and had little liquid assets left. The claimant's sister-in-law [XXX] was working at [XXX] and other jobs, and sending money back to the claimant's parents-in-law.
[20] The claimant alleges that her parents insist that she return to her husband, whatever the situation, because that is what is expected of a wife. She alleges that her in-laws are angry that she has shamed them by having their son arrested and seek to kill her to restore their honour.
[21] I find that the claimant is a Convention refugee.
[22] I find that the claimant's identity as a citizen of India is established by her testimony and the copy of her current Indian passport including a Canadian visa.3
[23] When a claimant swears to the truth of their allegations, there is a presumption that those allegations are true, unless there is reason to doubt their truthfulness.4 I cannot find a reason to doubt the truthfulness of the claimant's allegations.
[24] The claimant's testimony was generally consistent with the other evidence before me. She testified in a responsive manner and with reasonable detail on relevant matters.
[25] The claimant provided some corroborating documentary evidence. She has provided a name card with a file number from a constable with the [XXX] RCMP.5 Although there is no date or any further information, the card does corroborate that the claimant had some contact with the RCMP in [XXX], where she stayed with her brother-in-law and his wife.
[26] The claimant has provided a letter from a women's shelter.6 This letter corroborates that the claimant stayed at the shelter for an extended period after being kicked out of her in-laws' home in [XXX].
[27] The claimant has provided a transcript of a recorded telephone conversation between her mother and a friend of the claimant's that corroborates details of the claimant's testimony. Details of the conversation, including the first names and family circumstances of the subjects of the conversation, are consistent with the claimant and [XXX]. The speaker identified as the claimant's mother states that [XXX] father has threatened to kill the claimant because she filed a complaint against them, and that the claimant's mother wants nothing more to do with the claimant.
[28] I find that there is a nexus between the persecution alleged and the Convention ground of membership in a particular social group as a woman. The claimant alleges that she faces persecution because she is a woman, and faces harsh consequences for not behaving as expected by the community.
Well-Founded Fear
[29] The claimant has testified that she fears returning to India. Considering all of the evidence before me, I find on a balance of probabilities that her fear is objectively well-founded.
[30] The claimant's father-in-law has threatened to kill the claimant because she publicly shamed the family. I find that there is a serious risk that the claimant's in-laws will carry out that threat.
[31] The claimant has testified that her in-laws have publicly and proudly associated with high-ranking members of local criminal organizations, including at her wedding, and that her father-in-law has bragged to her of using his connections to bribe police. This demonstrates that the claimant's in-laws are willing to demonstrate in illegal activity for their own benefit.
[32] Objective evidence states that police in India are subject to corruption and operate in an environment of "widespread impunity," corroborating the father-in-law's boasts of bribery.7
[33] The claimant has provided photos obtained from Facebook of her father-in-law and other relatives posing proudly with a variety of firearms.8 I am satisfied that the claimant's in-laws have the means to carry out their threat to her.
[34] The objective evidence establishes that 'honour' crimes against women in India remain a major issue.9 10
[35] 'Honour' crimes are committed to maintain a family's or community's honour in society and are usually targeted against women. Family honour is particularly connected to women and marriage, and 'honour' crimes can occur because a child married against the parents' wishes. Although there are no official statistics available, 'honour' crimes are reported to be "prevalent" or "widespread" in India, and are more common in northern areas, including Punjab. 'Honour' crimes occur in all sectors of society, among all religions, and in both urban and rural areas. 'Honour' crimes frequently end in the death of the victim.11
[36] The claimant's in-laws have threatened to kill the claimant because her actions in leaving their son and involving the police have insulted their honour. Based on the evidence before me in this case, I am satisfied on a balance of probabilities that there is a serious risk that the claimant faces persecution in the form of 'honour' killing if she were to return to India.
[37] I find that the claimant has rebutted the presumption of state protection.
[38] Police in India are under-staffed, under-resourced, under-trained and overburdened. Police are subject to political pressure, and are themselves sometimes responsible for human rights abuses. Police frequently failed to respond effectively, particularly regarding crimes against women.12
[39] Police are reluctant to accept complaints or carry out investigations regarding 'honour' crimes, generally only registering complaints if the complainant is influential or wealthy. Powerful perpetrators often face no real consequences. In some areas, police are sympathetic to the perpetrators and implicitly condone 'honour' crimes.13
[40] Based on the evidence before me in this case, I find that the state will not provide adequate protection to the claimant.
[41] Considering all of the evidence before me, in the particular circumstances of this case, I find that it is not objectively reasonable for the claimant to relocate within India.
[42] The threshold for an IFA to be objectively unreasonable is very high; conditions must jeopardize the life and safety of the claimant for a proposed IFA to be unreasonable.14 The onus is on the claimant to provide actual concrete evidence of conditions that would jeopardize her life and physical safety if she were to relocate, considering all of the circumstances, including those particular to her.15
[43] The claimant has a university education; she has obtained a bachelor's degree in [XXX]. However, she has never worked outside the home, and had never lived independently before separating from her husband in Canada. Even given her education, the claimant is inexperienced and unsophisticated.
[44] The claimant has not kept in contact with her friends from university. Her family will not support her, and she no longer has contact with her family members. She has only a few friends willing to assist her, and they are here in Canada. If the claimant were to return to India, she would be alone and without support.
[45] Single women are stigmatized and marginalized in Indian society, and are not considered complete without a husband. Women face significant difficulties finding employment, often only able to find low-paid subsistence work in the informal sector. Women are more vulnerable to inequities in job security, pay parity, access to credit, and suitable work conditions.16
[46] Single women have great difficulty finding housing. Single women are seen to be of poor moral character and possibly engaged in prostitution, and so landlords do not like to rent apartments, even to single women who are professionals. Landlords who do rent to single women sometimes impose rules on their tenants, including curfews, and frequently look for opportunities to evict single female tenants.17
[47] Many women who flee domestic violence are left homeless. Homeless women are subject to constant violence, sexual assault and murder, from passers-by and even police, and lack access to essential public services.18
[48] Women in India are subject to violence including rape and violation of their rights, which occur throughout the country systematically and with impunity, within the home and within the community at large. State actors perpetrate or condone the violence. There are few resources available to assist single women to live independently.19
[49] As set out by the country documents, these conditions exist throughout India, including in large metropolitan cities such as Mumbai and New Delhi.
[50] Based on all of the evidence before me in this case, including the objective documentary evidence about country conditions in India faced by single women, I find on a balance of probabilities that internal relocation is objectively unreasonable for the claimant. She would face significant and constant obstacles in finding work and shelter, and would be at constant risk of homelessness and violence. These conditions jeopardize her life and safety.
[51] Because relocation is objectively unreasonable in all of the circumstances of this case, the claimant does not have a viable IFA.
[52] Based on the analysis above, I conclude that the claimant is a Convention refugee, and I accept her claim.
(signed) Nick Bower
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Immigration and Refugee Board of Canada (IRB) Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, November 1996.
3 Exhibit 1.
4 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (C.A.).
5 Exhibit 5, p. 10.
6 Exhibit 5, p. 9.
7 Exhibit 3, National Documentation Package, India, 29 March 2019, tab 2.1: India. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019.
8 Exhibit 5, pp. 25-29.
10 Exhibit 3, National Documentation Package, India, 29 March 2019, tab 2.11: Compilation on India. United Nations. Human Rights Council. 22 February 2017. A/HRC/WG.6/27/IND/2.
11 Exhibit 3, National Documentation Package, India, 29 March 2019, tab 5.10: Honour crimes, including their prevalence in both rural and urban areas; government protection and services offered to victims of honour crimes (2009-April 2013). Immigration and Refugee Board of Canada. 9 May 2013. IND104370.E.
12 Exhibit 3, National Documentation Package, India, 29 March 2019, tab 2.1: India. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019.
14 Hamdan v. Canada (Immigration, Refugees and Citizenship), 2017 FC 643, para. 12.
15 Diaz Pena v. Canada (Citizenship and Immigration), 2019 FC 369, para. 36.
16 Exhibit 3, National Documentation Package, India, 29 March 2019, tab 5.11: Whether single women and women who head their own households without male support can obtain housing and employment, including in Delhi, Mumbai and Chandigarh; women's housing, land, property and inheritance rights; government support service… Immigration and Refugee Board of Canada. 26 May 2015. IND105109.E.
18 Exhibit 3, National Documentation Package, India, 29 March 2019, tab 5.2: Violence against women, including domestic violence, homelessness, workplace violence; information on legislation, state protection, services, and legal recourse available to women who are victims of violence (2013-April 2015). Immigration and Refugee Board of Canada. 15 May 2015. IND105130.E.
19 Exhibit 3, National Documentation Package, India, 29 March 2019, tab 1.10: Country Information and Guidance. India: Women fearing gender-based harm/violence. United Kingdom. Home Office. April 2015.
Date of Decision: December 13, 2019
Panel: I. Colle
Counsel for the claimant(s): Peter J. Wuebbolt
[1] MEMBER: So, I have considered your testimony and the other evidence in the case and I'm ready to render my decision, orally.
[2] I would like to add that in the event that written reasons are issued, a written form of these reasons may be edited for spelling, syntax and grammar and references to the applicable case law and documentary evidence may also be included. I also may add additional footnotes and correct any inadvertent errors.
[3] Now, the claimant is, Mr. [XXX] and he is a 40-year-old citizen of India and is claiming refugee protection pursuant to subsections 96 and 97(1) of the Immigration and Refugee Protection Act.
[4] I considered this claim mainly under Section 96, since the claimant claimed persecution based on political opinion or imputed political opinion.
[5] Now, for the reasons that will follow, I find that you are a Convention refugee, for the following reasons:
[6] He is a resident citizen of lndia who lives in Punjab State.
[7] He is a member of the Shiromani Akali Dal, SAD, political party.
[8] Now, there are two Akali Dal parties in Punjab. The claimant said he was associated with the [XXX] wing, which is led by [XXX].
[9] He said he was beaten and harassed by members of the Congress Party and also by their links with the police. He said he was detained and tortured and was asked to appear at the police station every month for an indefinite period.
[10] The claimant is or was a [XXX] in India.
[11] He was a member of the [XXX] wing since [XXX] 2011. He used to assist his cousin in arranging pilgrimage trips for community members in Yatra in Pakistan and he would also take part in organizing Party meetings with the help of community members.
[12] In [XXX] 2017, a Congress Party area leader noticed him and asked him to join the Party. He refused to join.
[13] In [XXX] 2017, he was beaten by three Congress Party members when he was convincing a group of people to attend his Party meetings.
[14] He went to a doctor for treatment. He went to the police to report the incident but instead of helping him, the police threatened him with detention for making false accusations against Congress Party members and ordered him to leave the station.
[15] In [XXX] 2017, he was able to convince four community members to join the Party. One of them had previously supported the Congress Party and he was also a cousin of the Congress Party leader.
[16] In [XXX] 2017, he received a threatening phone call from a Congress Party member and on [XXX], 2018, he was picked up from home by the police and detained without charges. He was interrogated and beaten by the police and told that he had links with Sikh militants.
[17] They questioned him about his involvement in the arrangement of [XXX] trips for pilgrims to Pakistan and the addresses of people that had assisted him in trips in the past and the people he knew in Pakistan. An officer warned that he could be threatened indefinitely on suspicion of espionage.
[18] His uncle came and after some negotiations, was able to get him out of detention on [XXX], 2018 after paying a bribe.
[19] However, the officer still told him he had to report every month indefinitely and he warned him not to be involved in any political activity and if he did not show up at the station, he would be tracked down and picked up from anywhere in the country and brought to the station where they would torture him to death.
[20] Upon his release, he needed medical attention.
[21] About a week later, the Congress leader, again, threatened him that it is a matter of time before he is beaten to death or permanently detained by authorities.
[22] He started to make plans, had to collect substantial funds in order to leave the country. He relocated to the state of Himachal Pradesh. It's to the east of Punjab. So, he stayed there and still though, would come back to the state of Punjab to report monthly and when he would come back, he alleged that he would be slapped, manhandled and humiliated by the authorities.
[23] His friend was able to find an agent who asked for 20 lakh rupees to make overseas travel arrangements. He made visa applications for himself and his spouse, without their daughters and he arrived in Canada on [XXX], 2018, accompanied by his spouse, who soon returned to India.
[24] He was in status. He had status for about six months and was able to contact present Counsel and started the process of making a refugee claim before his status expired in [XXX] 2018.
[25] He approached Immigration with his Counsel in [XXX]. The forms were finally filled out in [XXX] 2019.
[26] Now, the claimant also alleged that he suffered severe mistreatment, both physically- he underwent beatings and harsh treatment in prison and has continued to do follow-up medical visits and he said that, because of the continuing stress and tension, also because of the mistreatment, eventually contributed to him suffering a [XXX] in 2019, for which he still being treated today.
[27] Now, the claimant, regarding identity, he said he had lost his passport and he provided a police, Toronto Police Service report, part of Exhibit 5, that he reported the loss of his passport but I note in his Exhibit 1, there is a certified true copy of his Indian identity card from the government, issued by the government of India, with his name, [XXX] and it has his address in Punjab, [XXX] in Punjab.
[28] The claimant spoke fluently in Punjabi. He had other identity documents. In Exhibit 5, people attesting to his identity, including a letter from a spiritual centre, from relatives. There is also copies of his work in India as a [XXX].
[29] So, on a balance of probabilities, I conclude that the claimant is who he says he is and that he is from the Punjab.
[30] I found the claimant to be a very credible witness and, therefore, believe what he has alleged in support of his claim. I agree with Counsel that he did not exaggerate or embellish his claim. He testified in a straightforward manner and there were no relevant inconsistencies in his testimony or contradictions between his testimony and the other evidence before me.
[31] During the hearing, I asked for additional details and he credibly is, I find, on a balance of probabilities, a member Shiromani Akali Dal Party, the XXXX wing. He was able to identify the leader. He was able to identify members of the provincial assembly, both from the Akali Dal Party and from the, what he called, his agents of persecution, from the BJP Party.
[32] He gave vivid details about his detention in jail at the police station in XXXX, how he was beaten, humiliated, sometimes the officers went out of their way to humiliate him and to beat him and he was kept, basically, in a state of terror for every time he would report every month and while the claimant did relocate to, as I said, the neighbouring state of, Himachal Pradesh and we'll go into that later as we discuss internal flight alternative.
[33] So, I find that he was in effect, he was – I would not – his profile was not as a high-level Shiromani Akali Dal member, nor a low level. I think. I think he was a mid-level member who was active in his party and had good knowledge of the political situation in Punjab and credibly came to the attention of Congress Party members.
[34] Now, in this case, given that the – in this case, in that the police were agents of persecution, I find that state protection would not be reasonably forthcoming.
[35] Now, I find that the claimant has made a claim under Section 96, political opinion and before we get into that and the issue of IFA, I'm going to just note that he had many corroborating documents in his Exhibit 5 that attest to his political involvement and the history of abuse that he alleged.
[36] Now, before we get into documents, I should also mention, I did consider the issue of delay in making a claim but I note the claimant came with a visa, was never out of status and made arrangements with Counsel to make his refugee claim before that status had expired.
[37] So, in any event, the delay in making a claim cannot be a sole reason for denying a claim and in this regard, I've given him the benefit of the doubt.
[38] In Exhibit 5, we have, attesting to his religious background, the letter from the [XXX] in Toronto.
[39] I found a letter also from his Party in Exhibit 5 at page 2, which, on a balance of probabilities, I find genuine and it attests to his persecution he suffered in Punjab.
[40] There is supporting affidavits from family and Party members throughout. Again, I find no inconsistencies in those.
[41] There is plenty of documentation that he was a [XXX]. He did explain that there was a Canadian visitor's visa. He didn't know what the agent filled out, claimed he worked for the local government. But there's documents in Exhibit 5 that attest to his work in the agricultural industry as a [XXX].
[42] There is also – and I was able to examine the originals – again, I could find no discrepancy, internal discrepancies in these documents. There is page 13 document from the [XXX] Clinic. There is another one from a hospital in – [XXX] Hospital. There is also his continuing treatment in Toronto in Etobicoke.
[43] It states on page 15 from, Dr. [XXX], that he is, he has a [XXX] history and he has attended to his office on six times.
[44] There is some more comprehensive consultation report on the [XXX] situation, starting at page 16. It's a consultation report that was done on [XXX], 2019. It talks about his [XXX] history, the impairment he has undergone, as well.
[45] There is also many photos of his political and agricultural activities as a [XXX] in Punjab.
[46] So, on a balance of probabilities, I find that he was a [XXX] and he was involved with the Party.
[47] Now, internal flight alternative, I considered whether there was a viable internal flight alternative for you. I identified a number of areas in India, including in the neighbouring state at Himachal Pradesh.
[48] Also, I mentioned cities such as, Mumbai and Calcutta, Delhi, also as, Hyderabad. Now, I should note that in regards to Himachal Pradesh, the ruling party of the state is his alleged agent of persecution, the Indian National Congress and I considered the other – his argument that he could be traced by his residency card or that he could be traced by the police when he'd have to rent, for example, when he'd have to do some requirements and procedures for tenant registration, that he could be traced that way.
[49] However, I conclude that in regards to the first prong of the test, there is no serious possibility of persecution based on a review of the documentary evidence that, for example, in the National Documentation Package, Item 14.10, the Home Office Report on Internal Relocation, at page 6, states that:
"Tracking and surveillance systems appear to be limited and there is no centralized registration system in place to enable police to check the whereabouts of inhabitants in their own state or in other states or union territories and that each state and union territory has responsibility for its own separate police force and effectiveness and conduct varies across states."
[50] So, I find, based on a review – especially of Exhibit 14.10, there is no serious possibility of him being traced. It says that, India, for example, at page 10:
"India does not have a centralized registration system in place to enable police to check the whereabouts of inhabitants in their own state let alone in other states or union territories and that tracking and surveillance systems appear to be limited."
[51] However, I have to also consider the second prong of the test and that whether it be reasonable, in all the particular circumstances, for the claimant to relocate to those IFA identified areas, such as, Calcutta or Delhi. I did not consider Himachal Pradesh because it's controlled by the Congress Party.
[52] Now, the Federal Court has mandated the Board or the Refugee Division to consider other factors under Section 96 – I'm talking about- not 97 – 96 imputed political opinion or political opinion.
[53] The Court has identified also, medical and psychological reports that provide objective evidence and that I'm mandated to consider whether it would be unduly harsh to expect a claimant to move to potential IFA areas.
[54] Now, I considered the medical evidence that was in Exhibit 5 in finding that it would not be reasonable in all his particular circumstances, the claimant's particular circumstances, to relocate to these IFA areas. The medical evidence demonstrates, on a balance of probabilities, that the claimant suffered severe beatings and that it led to a series of events and, on a balance of probabilities, that led to his current medical state.
[55] I see the claimant had to then report once to the police but at least reported five or six times. Every time he went, he underwent beatings. This had a cascading effect on his medical health.
[56] I note that the claimant subsequently, in Canada, suffered from a [XXX] that incapacitated him to the point that at times, he could not even speak Punjabi, could not even write, although that's recovered. He was severely restricted in the use of his right hand. It severely affected his ability to work, let alone as a [XXX], but let alone work and he has now, even in the hearing, had to wear a monitor around his neck that monitor's his medical condition to detect any possible ongoing or future [XXX].
[57] So, given the claimant's very unique medical situation, that's corroborated by at least three reports in Exhibit 5, I find, on a balance of probabilities, under Section 96 that the second prong of the test, that it would not be reasonable, in all his particular circumstances, to relocate to these IFA designated areas, given his medical condition as a [XXX] patient who is undergoing still, some after effects that could plausibly be linked to his mistreatment, harsh mistreatment, at the hands of Indian police in the state of Punjab, where he was detained, beaten and humiliated.
[58] So, given in regards to this medical evidence, again, I've afforded the claimant the benefit of the doubt. I find that it is, on the balance of probabilities, that based on <inaudible> medical evidence, he did suffer severely and harshly because of mistreatment, both physically, psychologically and it affected his physiology as well and that, given his situation as a [XXX] patient right now and his inability to work now it would not be reasonable, in all his particular circumstances, to relocate to the IFA designated areas.
[59] So, I said I examined all the originals. There was no discrepancies and I will return them now to Mr. [XXX].
[60] So, in summary then, the claimant – I considered the claimant's personal situation in deciding and determining the reasonableness of the IFA and I considered both his medical condition and his inability to earn a livelihood.
[61] Therefore, I conclude that the claimant, Mr. [XXX], is a Convention refugee and, therefore, accept his claim.
[62] Thank you very much.
[63] The hearing is concluded.
——— REASONS CONCLUDED ———-
Panel: S. Seevaratnam
Counsel for the claimant(s): Ian D. Hamilton
Associated RPD Number(s): TB7-25583
[1] The claimants [XXX] and her minor son, [XXX], claim to be citizens of India, and they are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1
[2] The adult claimant, [XXX], alleges that she fears returning to India due to membership in a particular social group, as a lesbian. The minor claimant, [XXX] fears returning to Indian, as a member of a particular social group – family.
[3] The mother, [XXX], consented to being the designated representative for her minor son, [XXX], for the purposes of the hearing.
[4] The panel has carefully considered the Chairperson's Guideline 9: Proceedings Before the Immigration and Refugee Board Involving Sexual Orientation and Gender Identity and Expression (SOGIE),2 prior to assessing the merits of this claim.
[5] The panel has also carefully considered the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution prior to assessing the merits of this claim.3
[6] The principal claimant testified that her mother deceased when she was a year old and her father was busy working in the fields, so she was raised by her father's brother and his wife. The claimant testified that she was born with a [XXX], a [XXX]. She explained that she was constantly compared by her aunt to her aunt's own children, whom she considered to be beautiful, whereas she would call the claimant "ugly." Furthermore, the aunt would treat her as a servant and keep her busy by making her perform manual labour. This lifelong mistreatment and humiliation led the claimant to attempt suicide at the age of 14 by jumping into a well. She felt isolated and ridiculed. The neighbouring farmers discovered the claimant and saved her.
[7] The claimant stated that her aunt and uncle sent their children to private schools and she was forced to attend a public school. She befriended a girl named [XXX] ([XXX])4 at school. She stated that [XXX] was in a similar predicament as her and she had a darker complexion. Both the claimant and [XXX] were of the opinion that no man would ever marry them because of their appearances.5 Over time, they formed a good friendship, which led to physical intimacy.
[8] In grade 11, her relationship with [XXX] was discovered and the claimant was beaten by her father and aunt and her education was prematurely terminated. They arranged a marriage for her which she adamantly opposed. The claimant stated that she was forcibly married at the age of 19 to [XXX],6 who was nine years older than her. She testified that he was a drug addict and alcoholic, and that he was physically and sexually abusive to her. On one occasion, he was so sexually aggressive with the claimant that she started bleeding. She reported the incident as rape to the police and the Inspector of Police asked her to return to her husband and indicated sex was part of marriage.7
[9] The claimant further explained that she did not enjoy any intimacy with her husband, but he tied her to the bed and frequently forced himself upon her. This led to her unwanted pregnancies. She wanted to terminate her second pregnancy, but the medical staff refused to abort the fetus unless her husband accompanied her to the hospital and consented to the procedure.8 He did not consent and so, she gave birth.
[10] In [XXX] 2011, her married life of physical and sexual abuse continued and when she continuously attempted to flee her estranged husband's grip, he forcibly tied her to the bed with a rope and burnt her with a hot rod on five areas of her body.9 The claimant provided photographs of the injuries she sustained and she still bears the physical and psychological scars to this day.10
[11] The panel finds the claimants to be Convention refugees. The panel's reasons are as follows.
[12] In Exhibit 1, the claimants have provided copies of their genuine passports issued by the Republic of India which were initially suspected to be fraudulent but later certified to be true copies by an immigration officer on December 24, 2017.11
[13] In Exhibit 9, the claimant has provided a copy of the minor claimant's birth certificate12 her 519 orientation training record,13 and her school transfer certificate issued by the Government of Tamil Nadu.14
[14] In Exhibit 7,15 the principal claimant has provided copies of her membership documents with the 519 Community Centre, a 519 reference letter, photographs of herself with fellow members of the LGBT community, family photos, photos of her scars, and a letter from her brother, [XXX].
[15] The panel finds the principal claimant to be a lesbian. The panel further finds both claimants to be nationals of the Republic of India.
[16] The panel is guided by the leading jurisprudence on the issue of credibility. Maldonado16 stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.
[17] The principal claimant was straightforward when responding to all questions. Her responses were consistent with the notes from the refugee examinations conducted on December 24, 2017, and December 27, 2017.17 Her sworn viva voce testimony was consistent with her Basis of Claim form (BOC)18 and narrative, her personal documents,19 and country condition documents.20
[18] Having considered the totality of the evidence, the panel finds the principal claimant to be a credible and trustworthy witness. Accordingly, both claimants have established their subjective fear.
WELL-FOUNDED FEAR OF PERSECUTION
[19] The panel has sought guidance from reliable and reputable documentary evidence regarding the current plight of homosexual men in India.
[20] According to the current United States Department of State's (DOS) "2018 India Human Rights Report" in the National Documentation Package (NDP):21
On September 6, the Supreme Court decriminalized same-sex relations in a unanimous verdict. Activists welcomed the verdict but stated it was too early to determine how the verdict would translate into social acceptance, including safe and equal opportunities at workspaces and educational institutions.
Lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons faced physical attacks, rape, and blackmail. LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas…
[21] In paving the way for the future of the LGBT community, the landmark decision of Navtej Singh Johar v. Union of India suggests the following:22
It is this immense task of combatting the prejudicial attitudes which were encoded in Section 377 which has to continue. Nariman J. was cognisant of this challenge and mandated the Union of lndia to give 'wide publicity to the judgment' and conduct 'sensitisation and awareness training for government officials and in particular police officials in the light of observations contained in the judgement'.
While Nariman J. emphasises the role of the Union government in combating prejudice and stereotypes in accordance with the principles of the judgment, Chandrachud J. issues an important plea to civil society to continue to work to combat prejudices and realise full equality for LGBT persons in line with the mandate of a transformative Constitution.
[22] A World Bank report "estimates homophobia costs India $31 billion (R455bn) a year due to lower educational achievements, loss of labour productivity and the added costs of providing healthcare to LGBT people who are poor, stressed, suicidal or HIV positive."23
[23] The Guardian published an article in March 2019 titled, "'There are few gay people in India': stigma lingers despite legal victory,"24 which states the following:25
The stigma still lingers. "In India, it is a case of ethics," says Sanjay Paswan, a member of the Bihar state council and former Indian federal minister who opposed the decision to lift the gay ban. "[Gay] people are suffering from some psychological weakness or problem or trauma. There are very [few] of them in India… "
The article further states that "[s]ocial acceptance is lagging far behind legal sanctions."26
[24] Counsel for the claimant acknowledged that decriminalizing and eradicating section 377 was a milestone for the LGBT community, but he pointed out that section 377 was specifically targeted at gay men. Counsel further explained that the police have numerous other laws which they utilize to charge members of the LGBT such as Anti-beggary laws,27 Nuisance laws,28 and the Immoral Trafficking Prevention Act.29
[25] A report by the International Commission of Jurists (ICJ) titled "Unnatural Offences: Obstacles to Justice in India Based on Sexual orientation and Gender", cites the 2015 Report of the Office of the UN High Commissioner for Human Rights, which has noted:30
"Human rights mechanisms continues to emphasize links between criminalization and homophobic and transphobic hate crimes, police abuse, torture, family and community violence and stigmatization, as well as the constraints and criminalization puts on the work of human rights defenders"…
[26] The documentary evidence highlights the reluctance from many segments of society, including politicians and the police within India, to accept same-sex relationships.
[27] Accordingly, the panel finds that the claimants are at risk of persecution due to the principal claimant's membership in a particular social group, as a lesbian, and the minor claimant's membership in a particular social group, as a family member and the son of a lesbian.
[28] There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state's inability to protect its citizens.31
[29] According to the United Kingdom (UK) Home Office report at item 6.6 of the NDP: "If the person's fear is of ill treatment/persecution at the hands of the state, they will not be able to avail themselves to the protection of the authorities."32
[30] The principal claimant testified that she sought police protection when she was raped by her estranged husband and the Inspector of Police asked her to return to him.33 Furthermore, the claimant testified that the police are intolerant towards members of the LGBT community and they have the same biases as the Indian general community. She believes that police protection will not be forthcoming to her as a lesbian and to her minor son, as the child of a lesbian. She further stated that the members of the police force are one of the agents of persecution and they commit violence towards members of the LGBT community. She fears their wrath.
[31] According an objective and recent Response to Information Request (RIR) conducted by the Immigration and Refugee Board:34
In a February 2017 report on obstacles to justice for sexual minorities in India, the ICJ states the following:
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 bout the violence, abuse and harassment they suffered at the hands of the police. Furthermore, in several cases, the police have refused to file complaints submitted by queer persons owing to bias or stereotypes.
The same source adds that
[q]ueer people's trust in the police is further eroded by the frequency of their negative interactions with police, for instance, when attempting to register complaints regarding violence and other crimes against them at the hands of private individuals. The police's refusal to file such complaints has seriously detrimental impact on queer persons' access to justice and redress.
US Country Reports 2018 states that "[s]ome police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents." [footnotes omitted]
[32] In light of the above, "the ICJ is concerned that the police's negative attitude towards queer people in India puts them at an increased risk of violence from non-State actors as well."35
[33] Furthermore, the ICJ finds that "[d]emands for justice and accountability for police abuses have led to direct forms of reprisal by the police against those denouncing their abuses."36
[34] In addition, "[s]everal people also told the ICJ that they believed that a lack of willing and experienced lawyers who were sensitive to issues of gender, sexuality, and queer rights in India hindered the possibility of obtaining justice in courts."37
[35] Finally, the ICJ report notes that, "there are few legal remedies in the law for the violence and discrimination faced by queer persons. This also makes it difficult to approach the court with cases."38
[36] The NDP39 and the documents submitted by the claimants40 make clear that the state is the agent of persecution and, in these particular circumstances, is clear and convincing evidence that the state is unable or unwilling to protect the claimant.
[37] Accordingly, the panel finds that the claimants have met the burden of proof, on a balance of probabilities, and the presumption of state protection has been rebutted.
[38] For the above-mentioned reasons, it is evident that state protection would not be forthcoming for the principal claimant due to her sexual orientation and her minor son.
[39] The Federal Court of Appeal established a two-part test for assessing an IFA in Rasaratnam and Thirunavukkarasu:
(1) As per Rasaratnam, "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"41 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.
(2) Moreover, 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 claim, for him to seek refuge there.42
[40] The claimants bear the burden of proof to demonstrate that they would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment in all of India.
[41] Regarding internal relocation, the UK Home Office report states that "[w]here the person's fear is of persecution and /or serious harm by the state, they will not be able to relocate to escape that risk."43
[42] The UK Office further finds that "India is a vast, diverse, multicultural country, Communities vary considerable not only in size, but also in their religious, ethnic, economic and political composition – and in the extent of their adherence to traditional social and family values."44
[43] According to a recent Response to Information Request (RIR) conducted by the Immigration and Refugee Board reports the following:45
India Spend reports that 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 … [Furthermore,] 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 or even getting an abortion." [footnotes omitted]
[44] The claimant testified that was used as a servant by her aunt and uncle and she was forced to perform menial tasks at home. She further explained that this was an obstacle to completing her homework and she was often punished by her teachers at school. In addition, when her father and aunt discovered her relationship with [XXX], a female school mate, they terminated her education and forced her into a marriage that she vehemently opposed. Thus, given her limited education, her estranged abusive husband, the lack of family support and as a single lesbian mother, the claimant would face a reasonable possibility of persecution from the Indian community and the Indian police, irrespective of where she lived within India. He minor son would also be subjected to ridicule and mistreatment due his relationship to his mother, a lesbian.
[45] A recent article in the New Yorker titled, "India's Historic Gay- Rights Ruling and the Slow March of Progress"46 concludes the following:47
A country decolonizes itself slowly. The Supreme Court's decision on Section 377 snips away one more tether binding India to its colonial past. But the verdict resembles a strong beam of light only because it pierces through the stormy, illiberal weather around it. The other problems besetting India- a hideous right wing Hindu nationalism; unpunished violence against minorities and lower castes; political corruption; arrests of civic activists under trumped-up accusations; yawning disparities of wealth; the spoiling, perishing environment – are all homemade. They cannot be blamed on anyone else; that heaviness of responsibility is part of the compact of growing up. For allowing these dysfunctions to flare, and for failing to stamp them out, India will be able to blame no one but herself.
[46] Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout the Republic of India. Thus, in the particular circumstances of the claimant, who is a lesbian single mother with a minor son, an internal flight alternative is unavailable.
[47] The panel finds [XXX] and [XXX] to be Convention refugees. They have established that there is a reasonable chance of persecution if they were to return to their country of nationality, India, today.
(signed) S. Seevaratnam
1 The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, sections 96 and 97(1).
2 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
3 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
4 Exhibit 1, Package of information from the referring CBSA/CIC, Refugee Examination conducted on December 27, 2017, p.5, received January 4, 2018.
5 Exhibit 2, Basis of Claim from (BOC), Narrative, para 5, received January 15, 2018.
6 Ibid., response to q.5.
7 Ibid., Narrative, para 9.
8 Ibid., para 11.
10 Exhibit 7, Personal Documents, pp.22-26, received August 9, 2019.
11 Exhibit 1, Package of information from the referring CBSA/CIC, received January 4, 2018.
12 Exhibit 9, Claimants' Documents, pp.9-10, received August 13, 2019.
13 Ibid., p.1.
14 Ibid., pp.2-4.
15 Exhibit 7, Personal Documents, received August 9, 2019.
16 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
18 Exhibit 2, BOC, Narrative, received January 15, 2018.
19 Exhibit 7, Personal Documents, received August 9, 2019; Exhibit 9, Claimants' Documents, received August 13, 2019.
20 Exhibit 4, National Documentation Package (NDP) for India (May 31, 2019); and Exhibit 8, Human Rights Documentary Evidence, received August 9, 2019.
21 Exhibit 4, NDP for India (May 31, 2019), item 2.1, s.6 – Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity.
22 Ibid., item 6.2, Idea of transformative constitutionalism and the way ahead.
23 Exhibit 8, Human Rights Documentary Evidence, p. 10, received August 9, 2019.
24 Ibid., pp.43-46.
25 Ibid., p.44.
27 Exhibit 4, National Documentation Package (NDP) for India (May 31, 2019), item 6.3, s.II(A)(ii) -Anti-Beggary laws.
28 Ibid., Nuisance laws.
29 Ibid., Immoral Trafficking Prevention Act.
30 Ibid., Laws regulating the police.
31 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
32 Exhibit 4, NDP for India (May 31, 2019), item 6.6, p.10, s.2.5.1.
33 Exhibit 2, BOC, Narrative, para 9, received January 15, 2018.
34 Exhibit 4, NDP for India (May 31, 2019), item 6.1, s.3.2.
35 Ibid., item 6.3, s.III.
36 Ibid., s.III(B – ii.).
37 Ibid., s.IV(A).
38 Ibid., s.IV(D).
39 Exhibit 4, NDP for India (May 31, 2019).
40 Exhibit 8, Human Rights Documentary Evidence, received August 9, 2019.
41 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.
42 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).
43 Exhibit 4, NDP for India (May 31, 2019), item 6.6, p. l 0, s.2.6.1.
44 Ibid., p.22, s.5.1.1.
45 Ibid., item 5.11, s.l.
46 Exhibit 8, Human Rights Documentary Evidence, pp.12-16, received August 9, 2019.
Date of Decision: September 11, 2019
Panel: Milton Israel
Counsel for the claimant(s): Ronald Yacoub
[1] [XXX], the principal claimant, and [XXX], his wife and the associate claimant, citizens of India, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1
[2] The Basis of Claim Form (BOC) of the principal claimant (hereafter the claimant) represented both claimants.2
[3] The claimant alleges in his narrative that he and his wife were threatened and attacked by members of the Rashtriya Swayamsevak Sangh (RSS), a Hindu nationalist organization that supports the Bharatiya Janata Party (BJP), the ruling party in India.
[4] The claimant further alleges that RSS members attempted to kill him on [XXX], 2017, as well as a few times earlier. The reason for these attempts was a statement that the claimant made at his Gurdwara, indicating that people should be able to eat any meat they desired, including beef. This was considered to be an insult to Hindus who considered the cow to be holy.
[5] The claimant received threats from the RSS and went to the police, but received no help. The threats also made an impact on his health, causing [XXX], [XXX], [XXX], and [XXX]. As a result, he and his wife moved to Amritsar, and stayed with his nephew. However, extremists followed him there, and he received a death threat. He went to the police again, but received no help.
[6] On [XXX], 2017, the claimant and his wife returned to their home in [XXX]. The next day, members of the RSS attacked his home, and the claimant was beaten. On [XXX], the claimant and his wife went to New Delhi, where he received first aid, and on [XXX], they left India and came to Canada.
[7] On [XXX], 2017, their house was attacked again. The claimant alleges that they assumed he was there, and would have killed him if he had not left India.
[8] The determinative issue in this claim is credibility.
[9] The panel questioned the claimant concerning his allegations. He was asked how Hindu nationalists heard about his statement as he made it in a Gurdwara. The claimant explained that there was a nearby Hindu temple, and Hindus often came to the Gurdwara.
[10] The panel noted that the three affidavits he disclosed concerning the incident in the Gurdwara were word for word exactly the same,3 and the claimant was asked how that was possible if they were prepared independently. The claimant explained they were given in Punjabi, and then translated into English. The panel noted the Punjabi originals were not disclosed, and the claimant explained they were prepared for Canada. The panel is not persuaded that the three affidavits were prepared independently, and finds that the word for word replication reduces their evidentiary weight as to the claimant's allegations.
[11] The claimant was questioned as to the alleged attempt of the RSS to kill him on [XXX], 2017. He described being dragged out of his house and beaten. The claimant was asked if there was an attempt to kill him, and he testified that they had no knife or gun. He further testified that his wife screamed, and neighbors came and the perpetrators ran away.
[12] The panel noted that the claimant indicated in his narrative that there were other attempts to kill him, and the claimant was asked to describe those incidents. The claimant testified as to the threats, and his trouble recalling these incidents. The panel notes that no substantive evidence was provided, either in the claimant's narrative or in testimony, which concerned such alleged incidents. Subsequently, the claimant testified that between 2014, when the Gurdwara incident occurred, and 2017, when his house was attacked, there were only threats.
[13] The panel noted that the claimant disclosed four affidavits concerning the alleged attack on [XXX], 2017.4 The panel further noted that the four affidavits are exactly the same. The claimant provided the same explanation as in the case of the affidavits concerning the Gurdwara incident. The panel finds, again, that there is a significant doubt that these affidavits were prepared independently, and gives them reduced evidentiary weight.
[14] The claimant's son, [XXX], a resident of Canada, appeared as a witness in the hearing. He testified that he visited India, and talked to his parents' neighbors and officials in the Gurdwara. They confirmed the claimant's allegations regarding his speech in the Gurdwara, and the attack on his home. He further testified that he visited his parents' home, and was attempting to repair some broken windows and a door, when he was attacked by two men. He ran to another house, and subsequently received medication and therapy for an injury to his shoulder.
[15] The witness also testified that his father, who is 70 years old, was being medicated for his diminishing mental abilities, which resulted from the trauma he experienced in India. The panel notes a medical document was disclosed in this regard.5 Moreover, the witness stated that the claimant dictated his narrative to his daughter-in-law, but his mental state was not normal at the time.
[16] The panel finds that the claimant testified in a straightforward manner. The panel further finds that it has credibility concerns about the affidavits disclosed by the claimant, and the claimant's allegations about multiple efforts to kill him without evidentiary support. The panel notes that the claimant changed his testimony in this regard in the hearing.
[17] The panel further finds that while the affidavits have been found to be of reduced evidentiary weight because of the content duplication, their corroboration of the claimant's allegations is not totally undermined.
[18] In regard to the panel's concern about the credibility of some of the claimant's testimony, it notes that the evidence provided by the claimant's son and in medical documentation, provides a credible explanation concerning the claimant's diminished mental condition.
[19] The panel finds, on a balance of probabilities, that the claimant has been a credible witness as to his allegations concerning his Gurwara remarks, and the resulting attacks by members of the RSS.
[20] The panel notes that it indicated at the beginning of the hearing that even if the claimant's allegations concerning his RSS risk are found to be credible, he has an internal flight alternative (IFA) available to him in Mumbai.
[21] The panel questioned the claimant as to his possible resettlement in Mumbai if he believed he and his wife were unsafe in Punjab. The claimant responded that Sikhs were a minority community, and the RSS was everywhere in India. The panel noted that Sikhs lived in all parts of India, and that there was no constraint on their doing so. The claimant responded that Mumbai was costly, and the panel noted that, like all major cities, there were less expensive communities on the periphery of the expensive center. The claimant further testified that there was a bias in favor of Maharashtrians, but the panel noted that Mumbai remained a cosmopolitan metropolis. The claimant responded that he had lived his life in a small community, and he did not have many more years to live.
[22] The panel has considered the two prongs of the IFA test, and acknowledges that both prongs must be satisfied for finding that the claimants have an IFA.6 While the panel is satisfied with the requirement of the first prong, that there is no serious possibility of the claimants being persecuted in the part of the country to which it finds an IFA exits, the requirement of the second prong, that 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 him to seek refuge there, has not been met.
[23] The panel finds, on a balance of probabilities, and in the context of the evidence concerning the claimant's age and mental health, that an IFA in India is not available to him. The panel further finds, on a balance of probabilities, that the principal claimant and the associate claimant cannot return to India without the risks pursuant to section 97(1) of the IRPA. Therefore, their claims are accepted.
(signed) Milton Israel
1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC) – TB7-23722.
3 Exhibit 5, Claimant's Disclosure, at pp. 23, and 28-29.
4 Exhibit 5, Claimant's Disclosure, at pp. 24-25, 27, and 30.
5 Ibid., at p. 74.
6 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
Panel: Paul Fitzgerald
Counsel for the claimant(s): Miguel Mendez
Associated RPD Numbers: MB8-21773
[1] This is the decision of the refugee protection division in the claim for refugee protection of [XXX], the claimant, and [XXX], the co-claimant, citizens of India. They claim refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).1
[2] Having considered all of the evidence, including the claimants' testimony, the panel finds that the claimants face a risk to their lives or to a risk of cruel and unusual treatment at the hands of highly-politically connected gangsters. The panel therefore finds that they are "persons in need of protection" pursuant to section 97 of the Act and accepts their claims.
[3] The claimant's detailed allegations are contained in his Basis of Claim Form (BOC)2. In summary, the claimant fear serious harm or death at the hands of [XXX] and [XXX], well-known local gangsters that have the political backing of powerful politician Bibi Jagir Kaur and the tacit support of the Punjab police.
[4] The claimant was working on his farm when he heard shouting and discovered a man being savagely beaten by the local gangsters. He called police who later invited him to make a statement. Two days later, the claimants and their minor son were accosted and beaten by [XXX], who told them to withdraw the complaint.
[5] The claimants described a cycle of altercations with [XXX] and/or the police, where an incident would happen, they would report it to the police, and physical violence would occur, sometimes at the hands of the gangsters and sometimes as the hands of the police.
[6] The claimants described their frustration at realizing that at least in parts of the Punjab, the gangsters have support in certain political quarters and the tacit, if not active, support of the police.
[7] On two occasions, the claimants fled their village to other parts of India, notably [XXX] in Haryana and [XXX] in the Punjab. They were finally told by a lawyer that they could not prevail against politically-connected gangsters with tacit backing of the police.
[8] However, the event that provoked their departure from India was the kidnapping of their then 9-year old son and the realization that their enemies would stop at nothing and the police would not protect them.
[9] The claimants' personal and national identities as citizens of India are established on a balance of probabilities by their testimony and by the documentary evidence on file, including a copy of their Indian passports.3
Credibility and State Protection
[10] Testimony provided under oath is presumed to be truthful unless there is a reason to doubt its truthfulness. In this case, the Panel has no reason to doubt the claimants' credibility. Their testimony was spontaneous and sincere, and was consistent with the allegations in the claimant's BOC. Therefore, the Panel finds the claimants to be credible witnesses and believes, on a balance of probabilities, the allegations contained in their claim.
[11] The claimant told the panel on various occasions that he regretted ever taking an interest in the incident that caused the death of the man on his farm. He had just returned from working 7 years in Saudi Arabia and regretted making that first phone call to the police.
[12] During their testimony it became obvious that their various attempts to solicit police involvement was nothing less than a sincere, repeated call for State Protection, which fell on deaf ears and in many cases provoked reprisals and/or torture from the gangsters or the police.
[13] In their BOC4 the claimants alleged that the Punjab police, now convinced that the claimant was not a criminal, had identified him as a witness who testimony was necessary to secure the conviction of the people who have savagely beat and ultimately killed the man on the claimant's farm.
[14] The claimants described how they left Punjab and relocated in the co-claimant's home town of [XXX], some [XXX] km away, in the neighbouring state of Haryana. At the hearing, the claimant explained how the Haryana police, with the participation and at the request of the Punjab police, had gone to the house in [XXX], detained the claimant and returned him to the Punjabi police in his home town, where he was beaten and reminded of this obligation to cooperate with the Punjabi police.
[15] The claimant described his complete frustration in realizing that while the police said they wanted to arrest the people responsible for the death of the man on his farm, the police were willing to consider any persons except the two guilty persons, namely, [XXX] and [XXX]. He stated that he was unwilling to falsely accuse an innocent person and stated he desperately wanted to avoid further negative interactions with the police.
[16] Unwilling to falsely accuse an innocent person, and wanting to avoid further negative interactions with the police, the claimants stated stayed briefly with friends in [XXX], another town in Punjab, returning home after the friend's wife expressed concerns about possible increased danger to the friend's family.
[17] The single most important allegation was that the gangsters, [XXX] and [XXX], had kidnapped or arranged for the kidnapping of their minor son [XXX], then aged 9, on [XXX], 2018, as he played in front of the family home.
[18] The co-claimant described an initial frantic, desperate search for her son, fainting due to low blood pressure, the network of friends that searched for him and the posters they distributed with his picture.5 The claimants were dismayed at realizing that the police would offer no assistance whatsoever, and told the Panel that they feared that their son had joined the ranks of Indian children, whose organs are harvested.
[19] They stated that they continued searching for their son, contracted an agent, and came to Canada on [XXX], 2018, by which time the co-claimant was three months pregnant.
[20] They testified that by chance, on [XXX], 2019, their son was found begging by relatives at a celebration of Sikh culture in [XXX] in Punjab.6 He is now living with the co-claimant's mother and brother in [XXX], in the neighbouring state of Haryana.
[21] When asked how the child had fared during the nearly 11 months during which he had been kidnapped, the co-claimant said the child had initially been uncommunicative and a doctor had told them that the child was very scared and should not be left alone.
[22] The co-claimant testified that the day her mother gave her the news that [XXX] was free she was the happiest person in the world and also the saddest person in the world because she could not be with him.
[23] The co-claimant testified how she had felt anguish, when her mother had not let her see her son's face for fear of provoking a reaction that would harm her unborn grandchild. She described her heart retching agony and not being able to answer her son's repeated question, "Momma bring me closer to you!" Due to the child's fear, [XXX] has not left his grandmother's house since arriving there.
[24] The infant, [XXX], was born in Montreal on [XXX], 2019 and had [XXX], which the mother blames on the stress she was under in her final trimester of pregnancy. Fortunately, surgery on [XXX], 2019 has since cured the infant's defect.
[25] The claimants submitted a letter from Sophie [XXX], a Quebec social worker7 who has dealt extensively with the family. It describes the tremendous stress the family is under. To show her support, Ms. [XXX] came to the hearing.
[26] The Panel finds the claimants' behavior to be generally consistent with that of persons who cannot return to their country.
[27] Having found that the claimants are being pursued by highly-politically connected gangsters, with tacit police support, the Panel finds that they face a genuine risk to their lives or to a risk of cruel and unusual treatment or punishment and that they have rebutted the presumption of state protection with clear and convincing evidence.
[28] The Panel proposed Delhi and Yamuna Nagar as Internal Flight Alternative locations.
[29] The IFA analysis is a two-prong test:8 (1) the claimants bear the burden of proof to demonstrate, in the proposed IFAs, that they would face a genuine risk of cruel and unusual treatment or punishment or that, on a balance of probabilities, they would be personally subjected to a risk; (2) the claimants bear the burden of proof to demonstrate, on a balance of probabilities, that it would be objectively unreasonable or unduly harsh to relocate to the proposed IFAs: "it requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant".9
[30] Prior to considering seeking refuge in Canada, the claimants had sought refuge in [XXX] in Punjab and as well in the co-claimant's home town of [XXX] in the neighbouring state of Haryana. They testified that they had been surprised by the level of cooperation between Punjab and Haryana police in finding the mail claimant and returning him to Punjab.
[31] They testified while they were seeking refuge in [XXX], the Haryana police had escorted the Punjab police to the home in which the claimants were staying and the Punjab police had arrested the claimant and brought him back to Punjab, where he was beaten.
[32] In order to meet both criteria of the IFA two-prong test in the current context, there cannot, on a balance of probabilities be any information sharing between the police in Punjab and those in other states.
[33] The objective country documents before the panel establish that the Indian police at a national level are rolling a police database called Crime and Criminal Tracking Network and Systems (CCTNS)10 and that "94 percent of police stations across India have CCTNS hardware deployed"11 but that the degree to which the database is used and whether it is being used efficiently is hard to confirm.12
[34] The objective country documents before the panel also confirm that the CCTNS is also being connected to tenant registration systems in order to give the police the power to "verify tenant information.13 As with CCTNS itself, this capability has not yet been fully deployed.14
[35] Although the degree of implementation of CCTNS and its link to tenant information varies by State, the more recent documents confirm progress is being made.15
[36] Thus, the Panel concludes, on a balance of probabilities that the Punjab police would be able to locate the claimants anywhere in India, and that the claimants face a genuine risk to their lives or to a risk of cruel and unusual treatment or punishment.
[37] Having found that the claimants face a genuine risk to their lives or to a risk of cruel and unusual treatment or punishment at the hands of highly-politically connected gangsters, with tacit police support, the panel finds that they have a genuine fear of harm in India, that they have rebutted the presumption of state protection with clear and convincing evidence, and that there is no viable internal flight alternative for them anywhere in India.
[38] Having considered all of the evidence, the panel finds that the claimants face a genuine risk to their lives or to a risk of cruel and unusual treatment or punishment at the hands of highly politically connected gangsters, with tacit police support. The panel therefore finds that they are "persons in need of protection" pursuant to section 97 of the Act and accepts their claim.
(signed) Paul Fitzgerald
2 Document 2.1 – Basis of Claim Form MB8-21731
3 Document 1 – Package of information from the referring Canada Border Services Agency./ Immigration, Refugees and Citizenship Canada. Passport.
4 Document 2.1 – Basis of Claim Form MB8-21731.
5 Document P-1 – Picture of missing children, picture of their son of [XXX] that was missing.
6 Document P-13 – Letter from [XXX], [XXX]'s mother.
7 Document P-5 – Lettre de la Travailleuse sociale, [XXX], le 7 octobre 2019.
8 See for example Iyere v. Canada (MCI), 2018 FC 67, paras. 30-35.
9 Ranganathan v Canada (MCI), [2001] FCR 164,266 NR 380 (FCA), para. 15.
10 Document National 3 – Documentation Package, India, 31 May 2019, tab 10.6: Response to an information request IND106120.E, Immigration and Refugee Board of Canada, 25 June 2018.
13 Document National 3 – NDP, tab 14.8: Response to an information request IND106289.E, Immigration and Refugee Board of Canada, 14 May 2019.