2020 RLLR 8

Citation: 2020 RLLR 8
Tribunal: Refugee Protection Division
Date of Decision: June 25, 2020
Panel: Georgia Pagidas
Counsel for the Claimant(s): Odette Desjardins
Country: India
RPD Number: MB8-01694
Associated RPD Number(s): MB8-01304
ATIP Number: A-2021-00540
ATIP Pages: 000050-000059

REASONS FOR DECISION

DECISION

INTRODUCTION

[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

DETERMINATION

[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.

ALLEGATIONS

[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.

ANALYSIS

Identity

[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

Nexus

[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.

Credibility

[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.

Incidents

[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.

State Protection

[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.

CONCLUSION

[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

June 25, 2020

¹ Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.
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.
¹² Ibid.
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
¹⁸ Ibid.
¹⁹ Ibid.
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.