Citation: 2020 RLLR 19
Tribunal: Refugee Protection Division
Date of Decision: February 17, 2020
Panel: Marlene D.M. Hogarth
Counsel for the Claimant(s): Ian D Hamilton
Country: India
RPD Number: TB8-27230
ATIP Number: A-2021-00540
ATIP Pages: 000118-0000123
REASONS FOR DECISION
[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
ALLEGATIONS
[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.
DETERMINATION
[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
ANALYSIS
[14] The issues are credibility, state protection and internal flight alternative.
Identity
[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
Nexus
[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.
Credibility
[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.
CONCLUSION
[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
February 17, 2020
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
5 Exhibit 3; 6.6
6 Exhibit 3; 6.1