Category: India

Citation: 2022 RLLR 28
Tribunal: Refugee Protection Division
Date of Decision: September 28, 2022
Panel: Kylee Carreno
Counsel for the Claimant(s): Meryem Haddad
Country: India
RPD Number: VC2-06395
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claims of XXXX XXXX(the principal claimant), XXXX XXXX(the spouse), XXXX XXXX(the minor claimant), and XXXX XXXX(the associate claimant), who claim to be citizens of India, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[i]

[2]       I heard these claims jointly pursuant to rule 55 of the Refugee Protection Division Rules.[ii]

[3]       I have appointed XXXX XXXXas the designated representative for the minor claimant XXXX XXXX. The spouse provided no objection to this appointment. The designated representative was provided with the opportunity to testify about any risks faced by the minor claimant in India.

[4]       In conducting the hearing and rendering these reasons, I have considered and applied the Chairperson’s Guideline 4 which offers guidance on the gender-specific aspects of this claim.[iii] I have applied this guideline when offering procedural accommodations for sensitive testimony, in not questioning the spouse regarding details of the sexual assault she faced, and in assessing the spouse’s limited testimony. The minor claimant did not attend the hearing. The claimants agreed to inform me if they wished, at any point, to testify without the presence of their child, the associate claimant; the claimants did not inform me at any point of the hearing that they desired this accommodation, and the associate claimant was present throughout the testimonies of all claimants. I have also considered and applied the Chairperson’s Guideline 3 regarding child refugee claimants.[iv] I note that the incidents outlined in the claimants’ allegations are sensitive and occurred when the associate claimant was a child. I therefore considered that, as per this guideline, he may have limited knowledge of the risks facing him and his family in India.

ALLEGATIONS

[5]       The full allegations are set out in the claimants’ BOC forms.[v] The claimants’ immediate family consists of the principal claimant, who is the husband/father; the spouse, who is the mother/wife; the minor claimant; the associate claimant; and two daughters who are not part of their claim for refugee protection. These daughters are named XXXX and XXXX. The spouse, associate, and minor claimants stated that they wished to rely on the narrative provided by the principal claimant, their respective husband and father. In summary, the claimants fear the Punjab police who accused the principal claimant of being associated with militants and the drug mafia, detained and beat him, and detained and sexually assaulted the spouse. The claimants also fear the XXXX XXXX who kidnapped the associate claimant and extorted the claimants.

[6]       The principal claimant was born in West Bengal, but later moved to Bhilai, Chhattisgarh after he finished school, as he had an opportunity to work in XXXX XXXX XXXX and wished to support his family. The claimants lived together with their children in Bhilai, where the principal claimant had a XXXX XXXX. In 2012, the associate claimant was kidnapped by an unknown person claiming to be a member of the XXXX XXXX. The claimants were forced to pay a ransom to have their son released. They knew that they would then be on the XXXXlist of people to extort, so the principal claimant had to close his business and they moved to XXXX in Punjab in 2013.

[7]       The principal claimant joined his son-in-law, XXXX XXXX XXXX (his daughter XXXX husband) XXXX XXXX XXXX. In XXXX 2016, the principal claimant and a driver from XXXX XXXX were stopped by the police. He was questioned about drugs, the police beat him, and they took him to an unknown location where he was kept for two days, beaten, and questioned about XXXX who was accused of being involved in the drug mafia. While he was detained, his house was searched, and the spouse was mistreated. His family paid a bribe for his release with the assistance of the village council, and his fingerprints, photos, and signature were taken by police. Police continued to harass him and his family. He and the spouse were detained in XXXX 2016. They were separated at the station; the principal claimant was beaten, questioned, and kept for two days, while the spouse was beaten, sexually assaulted, and released the next day. He was told to report to police every month and to bring XXXX. The claimants soon went to live with relatives in Chandigarh.

[8]       In Chandigarh, the claimants hired an agent to help them get their visas and tickets to Canada. The police continued looking for them, beat the principal claimant’s mother in Chhattisgarh, and raided their relatives’ home in Chandigarh. The claimants arrived in Canada on XXXX XXXX, 2017. The police continued to look for them after they arrived in Canada. While in Canada, the claimants extended their visitor visas, and claimed refugee protection in XXXX 2018.

DETERMINATION

[9]       I find that the claimants are Convention refugees as per s. 96 of IRPA, as they have each established a serious possibility of persecution if they were to return to India.

ANALYSIS

Identity

[10]     I find that the identities of the claimants as nationals of India have been established through their testimonies and the copies of their passports in evidence, which contain Canadian visas.[vi]

Nexus

[11]     I find that the allegations establish a nexus to a convention ground for each claimant. The principal claimant has a nexus to an imputed political opinion, as the Punjab police have accused him of supporting pro-Khalistan militant groups. The spouse, associate, and minor claimants have a nexus to a particular social group, specifically that of a family member, as their risk arises from their association to the principal claimant and the allegations made against him. Further, the allegations and profiles of the spouse and minor daughter relating to their gender speak to a nexus of particular social group by way of them being women. For these reasons, all claims will be analyzed under s. 96 of IRPA.

Credibility

[12]     A claimant’s sworn testimony is presumed truthful unless there are reasons to doubt the veracity of their allegations.[vii] In this case, the claimants’ testimony appeared emotional and genuine. However, the spouse had difficulty testifying at times, and the principal claimant and spouse often required redirecting back to the question at hand. The associate claimant’s testimony was more straightforward, and he provided testimony regarding the incidents that he directly experienced in the past. Despite lacking knowledge of details regarding his forward-facing risk from police, I find that the associate claimant’s testimony corroborated aspects of the principal claimant and spouse’s testimony. I also find his limited knowledge of the risk he faces from police to be reasonable given the considerations outlined in the Chairperson’s Guideline 3. The principal claimant also spoke of the personal risk to the minor claimant in India. The claimants’ testimonies were generally consistent with the information provided in their BOC forms and narrative, aside from that outlined below, and I find that sufficient explanations were provided for all material inconsistencies and omissions.

Risk from the XXXX XXXX

[13]     I find the allegations that the principal claimant was raised in a region where XXXX XXXX were active to be credible, as he was raised in West Bengal and later moved to Chhattisgarh. The country documentation in the Indian NDP confirms that XXXX groups are active in these regions of India.[viii] I find that the principal claimant was raised with fear of these groups. I also find the allegation that the associate claimant was kidnapped by a XXXX XXXX as a young child to be credible. I find that the claimants moved to the Punjab region due to extortion and threats from the XXXX XXXX that kidnapped the associate claimant. However, I find that the claimants failed to credibly establish that a forward-facing risk from the XXXX XXXX exists for any of the claimants, as none of them have heard from a member of this group since sometime in 2013 when they moved to Punjab and the principal claimant changed his phone number. The principal claimant also testified that while they were living in Punjab, they did not experience any problems from the XXXX XXXX. The principal and associate claimants testified that they had a future risk from this group; however, they stated that their fear arises from the fact that XXXX XXXXare active in cities where they kidnap individuals for ransom and that they are a powerful terrorist group. They did not testify to any threat since 2013 or any individual, forward-facing risk to any of the claimants from a particular XXXX XXXX. While the principal claimant testified that these XXXX XXXXoperate in somewhere between 9-12 provinces in India,[ix] and the NDP documentation confirms that they operated as of 2016 in 11 states within India,  the claimants have failed to establish with sufficient credible evidence that any member of a XXXX XXXXhas continued to pursue them for the past 9 years or that they would come to the attention of a member of the XXXX XXXXin any part of India if they were to return. Consequently, I find that the claimants’ forward-facing risk is that arising from the Punjab police as discussed below.

Risk from Punjab police

[14]     The principal claimant testified that he felt responsible and that he was unable to protect his family from the police and the suffering they experienced. He stated that he feared he would be detained again upon returning to India and sentenced to many years in prison, leaving his wife and children unable to survive. He stated that that when the claimants first moved to Punjab, they had a peaceful life for three years, despite struggling with the language, as they spoke Hindi, not Punjabi. He stated that when he was first arrested, the police stopped his truck and accused him of drug trafficking and involvement with the drug mafia and ex-militants, and that his son-in-law XXXX, who was his business partner in his XXXX XXXX, was also involved in the same work. He stated that he struggled to understand the police’s words and answer their questions due to the language barrier, but he repeatedly heard the term “Khalistan”, leading him to believe he was accused of working with pro-Khalistan militants. He stated that he had never been involved in or had any interest in being involved in any of the activities or ideologies he was accused of, and no person in his immediate family was involved in these activities either. He stated that he knew XXXX was involved with the SAD-B political party, but he did not know anything about his activity with this group. He also stated that XXXX father used drugs and was likely involved in some of the alleged activities, as he was arrested multiple times and put in jail. The principal claimant stated that his relationship with this man never developed due to his drug use. The principal claimant testified to the beatings he, and his wife during the second arrest, suffered from police and details of their experience when detained, along with the trauma he experiences when thinking about those events.

[15]     The spouse also testified to the long-term effects of the beatings from the police, including an impact on her ability to work due to an injury in her hand that was worsened from these beatings. She stated that the police arrested her because she was questioning why they were beating her husband, and that when she was detained, she did not understand them, as they were speaking Punjabi, but that she repeatedly heard the word “drug”. She stated that after she was sexually assaulted by police, she was fearful of telling anyone, and the only person that she told was her husband. She stated that when she sought medical attention, it was her husband only who spoke with the doctor, and she did not tell the doctor about this sexual assault.

[16]     I find that the claimants’ testimonies establish, on a balance of probabilities, that the principal claimant was accused by the Punjab police of involvement in drug trafficking and supporting militants in their fight for Khalistan, and that he was not politically or criminally involved in any of these activities. I also find, on a balance of probabilities, that both the principal claimant and the spouse were detained, assaulted, and questioned in relation to these accusations.

Documents

[17]     I find that the claimants’ allegations are corroborated by the following documents that they provided at exhibits 4, 5, 7, and 8:

• An affidavit from the claimants’ host in Chandigarh stating that they lived with her for two months in 2016, that the claimants told her about their circumstances, that the spouse was depressed, and that after they had moved, the police came to her residence looking for the claimants
• An affidavit from the principal claimant and spouse’s daughter XXXX, who continues to live in India, stating that her father was illegally detained in 2016, that she tried to get him out of detention on her own but could not, and that she sought the assistance of the village sarpanch to get him released. She also stated that both of her parents were detained in October 2016, and afterwards her parents lost their reputation in the village, and it was hard for her siblings at school. She confirms the claimants then went to Chandigarh
• Multiple treatment reports and prescriptions from the principal claimant and spouse’s treatments at the hospital following their detentions, along with individual letters for each of those claimants from the medical doctor who treated them confirming the treatment that he gave them

I find no reason to doubt the genuine nature of these documents and give them significant weight in establishing that the claimants were illegally detained by police, physically harmed, received medical treatment, went to live in Chandigarh, and that police have continued to search for them after they left. The claimants also provided documentation relating to the principal claimant’s XXXX XXXX in Chhattisgarh and his XXXX XXXX XXXX in Punjab;[x] I give these documents significant weight and find that they, along with the claimants’ testimonies, establish that the principal claimant owned a XXXX XXXX in Chhattisgarh and a XXXX XXXX XXXX in Punjab.

Delay in claiming

[18]     I note that the claimants arrived in Canada on XXXX XXXX, 2017 and stated that they renewed their visitor visas when they expired. They signed their Basis of Claim forms on May 8, 2018 and their claims were referred to the RPD on May 15, 2018. I asked the principal claimant why they did not claim refugee protection for the first nine months that they were in Canada, and he stated that as they had come with their daughter XXXX and her husband XXXXto Canada, they thought that they would receive assistance from them to establish themselves in Canada. Due to a falling out with XXXX, the claimants stopped talking to XXXX and XXXXand did not receive assistance from them. After this, the principal claimant stated that he shared the problems they were facing in India with others at the temple in Toronto, and he was told that he could claim refugee protection if he went to Montreal. The claimants then moved to Montreal and claimed protection. The spouse and associate claimants did not add further testimony regarding their delay in claiming.  I find this explanation to be reasonable, as their delay of nine months is a reasonable amount of time for the claimants to have had their expectations of family support fall apart, to tell others about their problems, to resettle in Montreal, and to have found a lawyer to complete their claim. I, therefore, do not draw a negative inference about their credibility from their delay in claiming protection once they arrived in Canada.

[19]     Overall, I find the claimants to be credible witnesses regarding the allegations I have accepted above. Based on the totality of the evidence before me, I find that, on a balance of probabilities, the claimants have established the abovementioned personal facts alleged in their claims.

Objective Basis

[20]     The objective evidence supports the claimants’ fear of returning to India.

[21]     According to the objective evidence in the National Documentation Package (NDP) for India,[xi] last updated June 30, 2022, significant human rights abuses exist in the country including extrajudicial killings perpetrated by police; torture and cases of cruel, inhumane, or degrading treatment or punishment by some police and prison officials; arbitrary arrest and detention by government authorities; harsh and life-threatening prison conditions; the detention of political prisoners; lack of investigation into and accountability for violence against women; and widespread corruption at all levels in the government.[xii] The report also states that: “[d]espite government efforts to address abuses, a lack of accountability for official misconduct persisted at all levels of government, contributing to widespread impunity.”[xiii] A 2022 Human Rights Watch report at item 2.3 states that “allegations of torture and extrajudicial killings persisted with the National Human Rights Commission registering 143 deaths in police custody and 104 alleged extrajudicial killings in the first nine months in 2021.” Further, this report states that the BJP “government’s ‘zero tolerance policy’ on crime led to an increase in police killings” and that “the authorities continued to use section 197 of the Criminal Procedure Code, which requires government approval to prosecute police officials, to block accountability even in cases of serious abuses”.[xiv] Item 9.9. indicates that although India has strict laws and procedures to protect against police torture and ensure accountability, it is “very difficult” to produce evidence against the police in cases of custodial crimes.[xv]

[22]     A 2018 report at item 10.8 on encounter killings describes the timeline of how they typically occur. The report states that:

“In overwhelming majority of cases, the victims of fake encounter deaths are first targeted either as insurgent/terrorist, sympathiser or supporter of insurgents/ terrorists or as wanted criminals with bounty on their heads. The targets are detained or taken into custody, interrogated, and tortured to extract confession or leads, and thereafter, killed in a staged encounter, often by planting a weapon on the persons killed to show the firing in self defense or to prevent fleeing. Fake encounters are also carried out for revenge, settle rivalries or disputes, not giving bribe, promotion or gallantry awards or simply trigger-happy nature of the law enforcement personnel.”[xvi]

The history of the principal claimant’s interaction with the Punjab police largely follows this common structure. The principal claimant testified that after his first detention, he was forced to continue monthly reporting to the police, and after some time he was given the option to pay a bribe to stop reporting, which he did. After his second detention, he was told to continue his monthly reporting, to which he did not ever comply. Given the claimants’ history with police and the country evidence above, I find that there is a reasonable chance that if the principal claimant returned to India, he would face persecution by the Punjab police, not only through his risk of further detention based on his imputed political opinion, but also through risk of a staged encounter killing from police due to revenge or a failure to provide a bribe for him to be able to stop reporting to police, which was a condition of his release when arrested for his political opinion.

[23]     With respect to gender-based violence, a 2019 OECD report at item 5.6 states that “women in India face many barriers to their safety and protection from physical, sexual and psychological violence. Rape, domestic violence, dowry-related deaths, honor killings and sexual harassment pose serious threats to women’s physical integrity in Indian society.”[xvii] Sexual violence including rape is “widespread across the country” in public and private spaces, and women are seen as vulnerable and “easy targets.”[xviii] Rape by police officers is “widespread and conducted with impunity.”[xix] NGOs stated that the number of rapes committed in police custody was underestimated, and “some rape victims were unwilling to report crimes due to social stigma and the possibility of retribution, compounded by a perception of a lack of oversight and accountability, especially if the perpetrator was a police officer or other official.”[xx] Further, this report confirms that “rape is…underreported in India largely because of social stigma, victim-blaming, poor response by the criminal justice system, and lack of any national victim and witness protection law making them highly vulnerable to pressure from the accused as well as the police”.[xxi] Survivors of rape are frequently blamed by the community and by authorities for the attack, and suffer shame and stigmatization as a result.[xxii] Thus, not only is the spouse at risk of further gender-based violence from police, as she experienced previously, she is at risk of suffering from the stigma and its affect that would follow her within Indian society.

[24]     While the claimants testified that they were unaware of any formal charges laid against them, the principal claimant testified that on both occasions of arrests, the police took his fingerprints, photographs, and signatures. The claimants also testified that they were in a high stress state after receiving beatings and being abused by police. The associate claimant, when asked if she saw the police enter any information about her in their digital system, stated that she did not see anything because she was scared and afraid and when they started beating her, her attention did not go anywhere else. When asked the same question, the principal claimant stated that the purpose of the Punjab police was to beat him, take money from him and make him scared, and that he kept requesting that they provide him with the evidence that they had against him, but they refused. Counsel submitted that with the signatures, fingerprints, and photographs the police took, they would be able to lay false charges against the claimants. In the claimants’ documentary evidence at exhibit 7 there is an article from The Hindu stating that FIRs may be lodged or criminal proceedings may be initiated without a police diary entry—essentially, without a corresponding entry of a civilian complaint or any information regarding the arrest of an individual. While I find that predicting the police’s capacity or willingness to lay future false charges against the claimants is speculative, I have also considered the following findings: the allegations made against the claimants by police; the extensive documentary evidence regarding high levels of police corruption throughout India;[xxiii] that the police took the abovementioned claimant’s fingerprints, photographs, and signatures; that the principal claimant was forced to continue reporting to the police station; that the police were monitoring either the claimants, their home, or their family members; and that the police were able to track the claimants to Chandigarh through unknown means. In light of these findings, I further find that the Punjab police, on a balance of probabilities, created an FIR against the principal claimant, after which the objective evidence at NDP item 10.2 indicates that his information would be entered into the national CCTNS database.[xxiv]

Well-Founded Fear of Persecution

[25]     The evidence presented in the associate claimant’s testimony and the documentary evidence is less clear regarding the associate and minor claimants’ forward-facing persecution from the Punjab police. Additionally, I previously found that there was insufficient credible evidence to establish that the XXXX XXXX presented a forward-facing motivation to find the associate claimant or to target any of the claimants for further extortion. The associate and minor claimants’ BOC forms indicated that they wished to rely on the narrative and allegations outlined by their father, the principal claimant. The spouse and principal claimants testified that they feared the arrest, beatings, false allegations, and questioning that happened to them by the Punjab police would also happen to their children if they returned to India. They also testified that the minor claimant, if she were to become a victim of the police, would face the additional risk of gender-based violence at the hands of police.

[26]     The associate claimant testified that he had never received a direct threat from police, but he had witnessed the police coming to his home many times and saying abusive words to his parents.  His knowledge of why the police had accused his parents of crimes, their arrest, and release was limited. I find that with respect to Guideline 3 this level of knowledge is in keeping with his profile, as he was 12 years old when these events occurred. I find that as the associate claimant is now an adult and his claim is based on a nexus to a particular social group by way of his association to the principal claimant, it is reasonable to conclude that his mother and the Punjab police’s treatment of her as a result of her relationship to the principal claimant are reflective of a similarly situated person to the associate claimant. The Punjab police had no evidence against the spouse and the claimants testified that the police did not make any criminal allegations against her. Yet, they detained, beat, and sexually assaulted her merely due to her association with the principal claimant. Additionally, the claimants’ allegations stated that the police were monitoring them and accused the principal claimant of involvement with drugs and militancy due to his association with his son-in-law. Similarly, I found the claimants’ allegation that the police beat and questioned the principal claimant’s mother to be credible. In light of these findings, I find that the associate and minor claimants in their current circumstances would reasonably be at risk of similar treatment by the Punjab police as that previously experienced by their mother, father, and grandmother. I also find that as the minor claimant is a woman, her risk if she were detained or questioned by police includes a risk of sexual violence, similar to that experienced by her mother. I, therefore, find that these claimants have established a well-founded fear of persecution.

[27]     Based on the totality of the evidence, I find that all the claimants have established a well-founded fear of persecution or forward-facing risk if they were to return to India. This finding is made based on all the evidence before me, including the claimants’ testimony that the Punjab police have continued to search for them, as well as the objective evidence regarding police corruption, abuse, and treatment of those accused of involvement with drugs and militants in India.

State Protection

[28]     The state is presumed capable of protecting its citizens except in situations where the state is in complete breakdown. To rebut this presumption, a claimant must establish on a balance of probabilities through clear and convincing evidence that their state’s protection is inadequate. I find that the claimants have rebutted this presumption.

[29]     The agent of persecution in this claim is an agent of the state. The US Department of State report describes India as a parliamentary democracy where civilian authorities maintained effective control over security forces.[xxv] This report also indicates widespread corruption at all levels in the Indian government and extrajudicial killings and degrading treatment or punishment perpetrated by the police.[xxvi] A 2022 Freedom House report gives India a score of 2 out of 4 for both due process and protection against illegitimate use of force.[xxvii] The report indicates that due process rights are not consistently upheld, and corruption and bribery within the police remains a problem. The report also indicates that torture, abuse, and rape by law enforcement and security officials have been reported.[xxviii]

[30]     NDP item 10.12 indicates that the state of Punjab has a Vigilance department, a Police Complaints Authority, and a Human Rights Commission that are responsible for anti-corruption measures. Sources in the RIR indicate concerns with the adequacy of the various organizations. For example, the Human Rights Commission was described as having little credibility and being more or less defunct due to lack of proper infrastructure and staff to handle the complaints and notes that most of the complaints are against the Punjab police. Similarly, the report states that the Police Complaints Authority in 2017 disposed of 52 complaints against the police and that in all closed complaints no police officer was found at fault.[xxix]

[31]     The claimants did testify to the fact that their daughter XXXX, who remained in India, successfully sought police protection when she made a complaint after the police harassed her for information about the claimants. I asked the principal claimant why he had not complained about police if there were effective systems for police complaints in India, and he stated that the police had taken his fingerprints, signature, and photos along with accusing him of involvement with militants and drug traffickers; on the other hand, his daughter was not accused of anything, lived independently from the claimants, and the police had no documentation or evidence against her. Consequently, the particulars of her situation were different from those of the claimants, and given the actions the police had taken against them, he did not feel safe making a complaint about police. I find this explanation to be reasonable in the claimants’ particular circumstances. Based on the country conditions noted above regarding evidence of widespread corruption, lack of adequate police oversight, and that an agent of harm is the Punjab police, I find that there is no operationally effective state protection available to the claimants in their circumstances.

Internal Flight Alternative

[32]     There is a two-part test to determine whether an internal flight alternative (IFA) exists. I must be satisfied (a) that there is no serious possibility of the claimant being persecuted on a Convention ground, or, on the balance of probabilities, being subject personally to a danger of torture or to a risk to their life or to a risk of cruel and unusual treatment or punishment in the IFA and (b) that conditions in that part of the country, are such that it would be reasonable, in all the circumstances, including those particular to the claimant, for them to seek refuge there. Once an IFA is raised, the onus is on the claimants to show that they do not have an IFA. At the outset of the hearing, I proposed Mumbai and Bengaluru as potential IFAs. For the reasons below, I find that the claimants do not have an IFA available to them.

Motivation

[33]     The principal claimant testified that after his first arrest, the second arrest occurred months later at the time that XXXXcame to visit their home. Counsel submits that this demonstrates that the police were monitoring the claimants’ home.  I find that the police entered the claimants’ home and arrested the principal claimant and spouse on this occasion due to their monitoring of either the claimants’ home or the claimants themselves or their close family members, including their son-in-law. Regardless of whether the police were monitoring the claimants, their home, or their family members, I find that this demonstrates that the Punjab police had a significant interest and motivation in tracking the claimants and their family. The principal claimant testified that after they left to Chandigarh, which he testified was 80 kms away from their village, the local police who had arrested them continued looking for them. I found that the claimants previously established this fact, including that the police raided the home of the individual they initially stayed with in Chandigarh after the claimants had left to stay in the Gurdwara. Further, I find that the claimants established that the police questioned and beat the principal claimant’s mother, who lived in Chhattisgarh, when they came looking for the principal claimant. The principal claimant also testified that a friend who they continue to communicate with informed them that as recently as six weeks ago the police continued to look for them in their local village. I find this to be credible. The principal claimant stated that with the formation of a new government, the police are looking for them more diligently, as the police wish to close their open cases. An article published in the RF Issue Brief at exhibit 6 speaks to the increased war on drugs and crime arising from the region’s current leadership since 2019. I find this testimony to be credible as there is no reason to doubt its veracity and it is objectively corroborated.

[34]     While I acknowledge that the claimants did not testify to having relatives in the proposed IFA locations of Mumbai or Bengaluru, I find that the Punjab police’s efforts to locate the claimants through their relatives in multiple provinces in India is indicative of their desire to use the resources available to them to find the claimants throughout India, including Mumbai and Bengaluru if the claimants were to relocate there. As the Federal Court has established, “there is no onus on a claimant to personally test the viability of an IFA before seeking protection in Canada.”[xxx] Thus, I find that the fact that the claimants did not previously attempt to live in Mumbai or Bengaluru, and consequently do not allege that the Punjab police attempted to find them in Mumbai or Bengaluru, is not indicative of the police’s forward-facing motivation to find them in these IFA locations. I find that the fact that the police searched for the claimants while they were in India only through their previously known locations and family members does not place restrictions on where the Punjab police would be motivated to find the claimants if they were to return to India. Rather, I find that the efforts made to search for them in multiple locations, including multiple provinces, speaks to a high level of motivation to find the principal claimant and spouse throughout India.

[35]     The principal claimant also testified that the police harassed his daughter XXXX who remains living in India while asking for information about the claimants’ whereabouts, but she then filed a complaint against the police, and they stopped bothering her. However, he later testified that the police continued coming to visit her home roughly every two weeks. I asked the principal claimant why he stated previously that the police no longer harassed his daughter after she effectively filed a complaint against them, and he stated that after she married, they believed that they could defame her and their family name, so they continued visiting her and asking questions about the claimants. I find that that this explanation does not reasonably explain the discrepancy in the principal claimant’s testimony on this fact, and that the claimants failed to establish with credible evidence that the police continue to visit their daughter XXXX in India to ask about them. However, the totality of the evidence establishing the principal claimant and spouse’s allegations that the Punjab police continue to look for them with other relatives in other cities and within their local village outweighs the insufficient, inconsistent evidence in establishing that the police continued to visit their daughter in India to ask about them. Consequently, I find that the documentary evidence and findings made regarding the police’s attempt to locate the principal claimant and spouse in various locations throughout India, including their local village in Punjab, Chandigarh, and Chhattisgarh, establishes that the police remain motivated to find these claimants.

[36]     The associate claimant testified that he had not yet completed secondary school and continued to study. The minor claimant is also currently a student. The principal claimant and spouse testified to the fact that they would not be living apart from their children if they were to return to India, as both the associate and minor claimants remain dependent upon their parents. Consequently, I find that as I found the police remain motivated to find the principal claimant and spouse, and the associate and minor claimant would be living with the principal claimant and spouse, the associate and minor claimant would also be at risk of detention and mistreatment by police if they were to be found by police due to their association with their father. Further, the minor claimant’s risk if her parents were arrested would increase from her profile as a young, vulnerable, single woman, which the Indian NDP largely demonstrates is a high-risk profile in India,[xxxi] and it would be unreasonable to expect her to live in India in these circumstances. Therefore, I find that while the police may not have expressed motivation to find the associate and minor claimants until today, their association with their parents—the principal claimant and spouse—makes them similarly at risk from the Punjab police if their parents were to be found, for which I find that the Punjab police have demonstrated motivation.

Means

[37]     The principal claimant testified that he no longer has an Indian national identity document (ID), that he could not rent accommodation in Bengaluru, Mumbai, or anywhere in India without this ID, that he could not find employment without this ID, and that he is unwilling to obtain a new identity document because the process of doing so would bring their location to the attention of the local Punjab police who are searching for them. The spouse and associate claimant stated that they agreed with his testimony and did not have anything further to add. Similarly, counsel submitted that the Punjab police would be able to locate the claimants when they went to rent accommodation through the tenant verification system using CCTNS. As I previously found that an FIR against the principal claimant was, on a balance of probabilities, created by the Punjab police and his information was consequently entered into a national database, I find that there is a reasonable chance the police would use this national database to find the claimants. The claimants also provided an extensive amount of documentary evidence regarding the rapidly expanding use of surveillance cameras throughout India, including information that Delhi, Chennai, and Mumbai are within the top 10 cities with the most surveillance in the world and that India is a policing superpower.[xxxii]

[38]     NDP item 10.13, indicates that India established the CCTNS system to connect the thousands of police stations across India for the purpose of collecting and sharing information on crime and criminals. The RIR quotes a source indicating that as of October 2020, 15,620 of the 16,098 police stations have had the CCTNS system deployed. The report also indicates that 81 percent of data for police stations is synced with the CCTNS system on the same day and that 91 percent of old information has been migrated to the system. The RIR also indicates that Punjab is listed as one of the top three states with most access to the CCTNS system. As of December 2020, police and law enforcement agencies across India can search details of any case registered. The DFAT report at item 1.5 indicates that “if a person of interest is being sought by another state, the states would work together in securing the arrest of that person” and that “there is a good degree of cooperation between state police services”.

[39]     Additionally, item 10.13 states that one of the uses of the CCTNS system is with respect to the verification of tenants. The report notes that the state of Punjab is one of the states that often replies promptly to tenant verification requests.[xxxiii] Item 14.8 describes how the tenant registration process is being used with the CCTNS system to verify whether the person had any criminal involvement or is absconding from the police in another state in India.

[40]     As I previously found, the Punjab police have tried to locate the claimants through their associates and family in India—in the village where the claimants used to reside in Punjab, in Chandigarh, and in the province of Chhattisgarh, where the principal claimant’s family lives. The police were able to successfully track the claimants’ location when they were in Chandigarh, along with contacting their family members in another province. It is well established in the Federal Court that a claimant does not have to cut themselves off from their family in order to live safely in an IFA.[xxxiv] Given the efforts of the Punjab police, I find that if the claimants were to return to India and stay in contact with their family, that there is a serious possibility that the Punjab police may be able to locate the claimants through both their family members and the surveillance systems throughout the country, including the CCTNS. For the abovementioned reasons, I find that the Punjab police have the means to locate the claimants throughout India.

[41]     Given the country condition documents indicating the widespread use of the CCTNS and surveillance systems, the corruption previously noted within the police in India, the continuing motivation to locate the claimants demonstrated by the Punjab police, including through the claimants’ family, I find that the claimants would face a serious possibility of persecution in Mumbai, Bengaluru, and throughout India.  

[42]     Since I have found that the claimants face a serious possibility of persecution in the proposed IFA locations and throughout India, I find it unnecessary to consider whether it would be objectively reasonable under the second prong. As such, I find that the claimants do not have a viable IFA.

CONCLUSION

[43]     I find that the claimants are Convention refugees and accept their claims.

(signed) Kylee Carreno

December 13, 2022

[i] Immigration and Refugee Protection Act,S.C. 2001, c. 27.

[ii] Refugee Protection Division Rules, SOR/2012-256.

[iii] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Gender Considerations in Proceedings before the Immigration and Refugee Board, updated July 18, 2022.

[iv] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, effective September 30, 1996.

[v] Exhibit 2.

[vi] Exhibit 1.

[vii] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (CA).

[viii] Exhibit 3, item 10.8.

[ix] Exhibit 3, item 10.8.

[x] Exhibit 4; Exhibit 7.

[xi] Exhibit 3.

[xii] Exhibit 3, item 2.1.

[xiii] Ibid.

[xiv] Exhibit 3, item 2.3.

[xv] Exhibit 3, item 9.9.

[xvi] Exhibit 3, item 10.8.

[xvii] Exhibit 3, item 5.6.

[xviii] Exhibit 3, item 5.9.

[xix] Ibid.

[xx] Exhibit 3, item 5.9.

[xxi] Ibid.

[xxii] Exhibit 3, item 5.4.

[xxiii] Exhibit 3.

[xxiv] Exhibit 3, item 10.2.

[xxv] Exhibit 3, item 2.1.

[xxvi] Ibid.

[xxvii] Exhibit 3, item 2.6.

[xxviii] Ibid.

[xxix] Exhibit 3, item 10.12.

[xxx] Alvapillai, Ramasethu v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8280 (FC).

[xxxi] Exhibit 3.

[xxxii] Exhibit 7.

[xxxiii] Exhibit 3, item 10.13.

[xxxiv] Ali v Canada 2020 FC 93.

Citation: 2022 RLLR 24
Tribunal: Refugee Protection Division
Date of Decision: October 11, 2022
Panel: Kevin Kim
Counsel for the Claimant(s): Deepak Pawar
Country: India
RPD Number: VC2-04045
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX as a citizen of India who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”)[i].

ALLEGATIONS

[2]       The specific details of the claimant’s allegations are contained in his Basis of Claim (BOC) form and the narrative therein.[ii] The claimant fears persecution in India based on his imputed political opinion because the police in India allege that the claimant is affiliated with Khalistani extremists.

[3]       The claimant is a 38-year-old Sikh Indian man who is a public supporter for the establishment of Khalistan, or a separate Sikh state. The claimant intermittently worked as a XXXX XXXX in the United Arab Emirates from 2005 to 2018. During his time in the Emirates, the claimant was issued temporary work visas from his employer, and had no permanent status or residency in the Emirates.

[4]       In XXXX 2015, a violent incident between terrorists and the Punjab police took place in the claimant’s home village. The claimant stated that the police arrested the claimant, who was not involved in the incident, as the police were aware of the claimant’s work history in the Emirates. The claimant stated that since the Emirates is an Islamic nation, the police suspected that the claimant was involved in the attack. In custody, the claimant was beaten and had his fingerprints, photographs, and signatures taken by the police. The claimant was kept in custody for three days and was able to be released after the claimant’s family provided the police with a bribe.

[5]       Following this incident, the claimant returned to Dubai and resumed his work as XXXX XXXX XXXX. In XXXX 2016, the claimant returned to India to visit his family. The claimant indicated that although he returned to India despite the incident in XXXX 2015 as he thought that the incident with the police was an isolated incident, and that the police would have had arrested the individuals responsible for the terrorist attack. The claimant indicated that he thought all suspicion surrounding him would have been cleared at that point.

[6]       However, in XXXX 2016, the claimant was arrested by the police again. The police detained the claimant from his home and made allegations that the claimant was assisting Sikh militants and that he was traveling to Pakistan using fake identity documents. The police further alleged that the claimant was assisting the Sikh militants financially. The police took the claimant’s fingerprints, photographs, and signatures again. The claimant’s family provided the police with another bribe, and the claimant was able to be released. Upon release, the claimant was instructed to report to the police before he travels out of India and again when he returns.

[7]       In XXXX 2016, the claimant returned to the Emirates to resume his employment. When in the Emirates, the claimant began to grow fearful of his eventual return to India as the nature of his employment in the Emirates was temporary. The claimant feared that should his employment be terminated in the Emirates, he would have to return to India as his status in the Emirates was dependent on his employment. The claimant contacted an agent in India, who began to prepare a Canadian visa for the claimant.

[8]       In XXXX 2018, the claimant was informed by his agent that in order to finalize his visa application, he would have to return to India. In the same month, the claimant traveled back to India and provided his agent with his passport, photographs, and payment in order to secure his visa. Upon return, the claimant presented himself at the police station as the police demanded.

[9]       On XXXX XXXX, 2018, the claimant was summoned to the police station. The police instructed the claimant that he will be sent to Pakistan to join a militant group, and to send all information he receives back to the Punjab police. The claimant reported this to the district commissioner in Kapurthala on XXXX XXXX, 2018, who promised the claimant that he would investigate the matter.

[10]     On XXXX XXXX, 2018, the police attended the claimant’s home while the claimant was not present. The police stated that the claimant was making false allegations against them, and proceeded to threaten the claimant’s wife in order to locate the claimant. When the claimant discovered that the police had attended his home, the claimant fled to his uncle’s home in Delhi in order to hide. The claimant also contacted his agent who provided him with other hiding locations within Delhi. Eventually, the claimant fled India in XXXX 2018.

[11]     The claimant indicated that approximately five months after arriving in Canada, he has become a public supporter of Khalistan. The claimant stated that he has participated in pro-Khalistan rallies and referendums since his arrival in Canada.

DETERMINATION

[12]     I find that the claimant is a Convention refugee pursuant to section 96 of the Act.

ANALYSIS

Identity

[13]     I find that the claimant’s personal identity and his identity as a citizen of India has been established on a balance of probabilities by the claimant’s testimony and a copy of his Indian passport on file.[iii]

Nexus

[14]     For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds enumerated under section 96 of the IRPA: race, religion, nationality, membership in a particular social group or political opinion.

[15]     In this case, I find that the claimant’s allegations establish a nexus to the Convention ground of political opinion, real or imputed, as the police allege that the claimant is affiliated with Khalistani militants. Therefore, I will assess this claim under section 96 of the Act.

Credibility

[16]     The Federal Court has held in Maldonado that when a claimant swears to the truth of certain allegations, it creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.[iv] The presumption of truthfulness does not apply to inferences or speculation.

[17]     In this case, I have no reasons to doubt the truthfulness of the claimant. He testified in a straightforward and consistent manner, and answered all questions asked to him spontaneously. He did not appear to exaggerate or embellish his testimony.

[18]     Furthermore, the claimant submitted documentary evidence in support of his claim. The documents form parts of Exhibit 4, and contain the following:

1. Corroborative affidavits from the claimant’s wife, father, uncle in Delhi, and village decision-maker, all with accompanying identity documents;

• Medical report detailing the nature of the injuries and treatment given to the claimant in November 2015;

• The claimant’s Khalistan Referendum voter registration card; and

• Photographs of the claimant during a pro-Khalistan rally and photographs of the claimant’s activities in a Sikh temple in Canada.

[19]     I have no reasons to doubt the genuineness of these documents and I accept them as genuine. As these documents relate to the central elements of the claimant’s allegations, being that the Punjab police have targeted the claimant by alleging the claimant is affiliated with Khalistani terrorists, I assign significant weight to these documents in establishing the claimant’s allegations as true.

[20]     Based on the claimant’s straightforward testimony coupled with the documentary evidence noted above, I find the claimant to be a credible witness and accept the claimant’s allegations in support of his claim to be true.

Well-Founded Fear of Persecution

[21]     Based on the claimant’s testimony and the objective country conditions evidence as set out in the National Documentation Package (NDP), I find that the claimant has a well-founded fear of persecution from the police in India based on his imputed political opinion.

[22]     The claimant has suffered harm from the police due to his imputed political opinion as the Punjab police falsely alleged that the claimant was affiliated with Khalistani militants. The claimant indicated that these are false allegations, and that he has only begun to support the establishment of Khalistan after his arrival in Canada.

[23]     Country conditions documents in the NDP for India confirms that police corruption is widespread and that the police have broad arrest and detention rights. A report by the UK’s Home Office[v] reports:

The USSD HR Report 2017 noted that ‘Police may detain an individual without charge for up to 30 days, although an arrested person must be brought before a judge within 24 hours of arrest. Lengthy arbitrary detention remained a significant problem due to overburdened and under resourced court systems and a lack of legal safeguards. Arraignment of detainees must occur within 24 hours unless authorities hold the suspect under a preventive detention law.

[24]     A report by the US Department of State[vi] states the following regarding the prevalence of in-custody treatment:

Significant human rights issues included: unlawful and arbitrary killings, including extrajudicial killings perpetrated by police; torture and cases of cruel, inhuman, or degrading treatment or punishment by some police and prison officials; arbitrary arrest and detention by government authorities; harsh and life-threatening prison conditions.

… There were reports of abuse in prisons at the hands of guards and inmates, as well as reports that police raped female and male detainees.

[25]     Further, an RIR by the IRB[vii] on the treatment of perceived separatists or Khalistan supporters in and outside of the state of Punjab states the following:

… the World Sikh Organization of Canada, an organization promoting the interests of Canadian Sikhs, stated that the “government, civil society and media vilify Sikhs advocating for Khalistan as extremists and militants by default” … the government is “hostile” to separatist movements.

According to sources, the police “keep track of” or “monitor” Khalistan supporters… security services are more likely to focus on Sikh separatists because they represent “a perceived political threat to the unity of India”… Khalistan activists who participate in activities such as demonstrations, meetings or posting on social media will be monitored… individuals who move to another city will continue to be tracked since that information will be shared.

According to the WSO representative, “suspected supporters of Khalistan are not safe outside of Punjab, anywhere in India”. The same source added that “no Sikh can openly be an advocate for or support the creation of Khalistan” and doing so results in harassment by police, false cases and also hatred of those who do not support Khalistan”; the government portrays anyone supporting separatism as “an extremist or terrorist and as an ‘anti-national’ that can be legitimately targeted for violence”.

[26]     I find that the claimant is an individual who has been falsely alleged and implicated by the police to be affiliated with extremists due to the claimant’s frequent travel between India and the Emirates. Given the objective evidence listed above, which indicates that police in India act with impunity towards perceived Khalistan supporters, I find that the claimant would face a serious possibility of persecution should he return to India.

State Protection

[27]     In all refugee claims, the state is presumed to be capable of protecting their citizens unless there is clear and convincing evidence to the contrary. A claimant who alleges that state protection is not available must persuade the Board, on a balance of probabilities, that the state would be unable or unwilling to offer protection.

[28]     Since the state is the agent of persecution in this case, I find, on a balance of probabilities, that the claimant will not be able to access adequate state protection in his home country and that the presumption of state protection has been rebutted. I find that state protection would not be reasonably forthcoming for the claimant as the police are accusing the claimant of collaborating with militants, which resulted in the arrest, detention, and abuse of the claimant.

Internal Flight Alternative

[29]     The question then becomes whether the claimant could find safety in an internal flight alternative (IFA). At the outset of the hearing, I proposed Mumbai and Delhi as possible IFA locations.

[30]     Once the issue of an IFA has been raised, the onus is on the claimant to show that he or she does not have an IFA.[viii] To find a viable IFA, I must be satisfied that there is no serious possibility of the claimants being persecuted or, on the balance of probabilities, being subjected personally to a danger of torture or a risk to life or cruel and unusual punishment in the proposed IFA. Furthermore, the conditions in that part of the country are such that it would be reasonable in all the circumstances, including those particular to the claimants, to seek refuge there.

[31]     I find that the police still have continuing motivation to seek the claimant in India. It is the claimant’s testimony, which I find to be true, that the police continue to visit the claimant’s village and home in search of the claimant. Given the police’s continued efforts to visit the claimant’s home in search of the claimant despite the passage of time from the initial incident in XXXX 2015, I find that the police are still motivated to seek the claimant.

[32]     The question then becomes whether the police would have the means to locate the claimant in India should he return. Based on the objective evidence in the NDP, I find that the police would have the means to locate the claimant in India.

[33]     The objective evidence shows that anyone moving to another part of the country from their regular area of residence will have to undergo a background check when filling out an application for tenancy or lease. According to a Response to Information Request by the IRB,[ix] “sources describe tenant registration [or verification] as mandatory”, and that “tenant verification aims to detect criminal background, if any, and maintain a database on people living in a particular area”. The report further states that “through police verification, the history of any tenant can be verified whether the person had any criminal involvement or absconding from other states’ police”.

[34]     As part of the background checks used in verifying tenants, Indian authorities have access to a nationwide database known as the Crime and Criminal Tracking Network and Systems (CCTNS), which contains information on crime and criminals, police daily diary and general diary entries, as well as Integrated Investigation Forms (IIF).[x] It also interconnects police stations across the country.

[35]     According to an RIR, 97 percent of India’s police stations are connected to the system. The CCTNS is also deployed in 95 percent of police stations nationwide; 81 percent of the data from police stations across India is synched with the CCTNS on the same day. Punjab, meanwhile, is among the states which report the most access to functioning CCTNS.[xi]

[36]     The claimant indicated that he was never presented with any formal paperwork from the police or has been informed by the police that an FIR has been lodged against him. However, according to an RIR[xii] by the IRB, the police “keep track of or monitor Khalistan supporters” and that the “security forces are more likely to focus on Sikh separatists because they represent a perceived political threat to the unity of India”. The same RIR further mentions that individuals who move to another city will continue to be tracked since that information will be shared.

[37]     According to a researcher who studies digital policing in India, only a portion of the CCTNS records data come from FIRs; in addition, the system also captures the “‘daily diary’ or the ‘general diary’ (an account of the daily functioning of the police station).”[xiii] Given such evidence, I find on a balance of probabilities that the claimant’s encounters with the police in XXXX 2015,  XXXX 2016, and XXXX 2018 were recorded as part of the police’s daily or general diary, meaning they have a record of his stay there. As such, I find that it is more likely than not that the claimant’s name would notify Punjab police should the claimant go through the tenant verification process in the proposed IFA locations. 

[38]     Given the mandatory nature of tenant verification checks in India, coupled with the fact that personal information of Khalistan supporters, real or imputed, are tracked even to different cities, I find, on a balance of probabilities, that the police in India would have the means to locate the claimant in the proposed IFA cities.

[39]     Ultimately, I find that the IFA test fails on the first prong, and I find that no viable IFA exists for the claimant.

CONCLUSION

[40]     For the foregoing reasons, I find that the claimant is a Convention refugee pursuant to section 96 of the Act and I accept his claim.

(signed) Kevin Kim

October 11, 2022

[i] Immigration and Refugee Protection Act,S.C. 2001, c. 27.

[ii] Exhibit 2.

[iii] Exhibit 1.

[iv] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302

[v] Exhibit 3. National Documentation Package, India, 30 June 2022, tab 10.10: ​Country Policy and Information Note. India: Actors of Protection. Version 1.0. United Kingdom. Home Office. January 2019.

[vi] Exhibit 3. National Documentation Package, India, 30 June 2022, tab 2.1: ​India. Country Reports on Human Rights Practices for 2021. United States. Department of State. 12 April 2022.

[vii] Exhibit 3. National Documentation Package, India, 30 June 2022, tab 12.8: ​Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them; treatment of Sikhs outside t.. Immigration and Refugee Board of Canada. 30 May 2022. IND201037.E.

[viii] Rasaratnam, [1992] 1 F.C. 706 (C.A.).

[ix] Exhibit 3. National Documentation Package, India, 30 June 2022, tab 10.13: ​Databases, including the tenant registration (or tenant verification) system, the Crime and Criminal Tracking Network and Systems (CCTNS), and POLNET; police access to these databases and their ability to track individuals; cases of individuals … Immigration and Refugee Board of Canada. 7 June 2022. IND201036.E.

[x] Exhibit 3. National Documentation Package, India, 29 April 2022, tab 10.6: ​Surveillance by state authorities; communication between police offices across the country, including use of the Crime and Criminal Tracking Network and Systems (CCTNS); categories of persons that may be included in police databases… Immigration and Refugee Board of Canada. 25 June 2018. IND106120.E.

[xi] Exhibit 3. National Documentation Package, India, 29 April 2022, tab 10.13: ​Police databases and criminal tracking, particularly the Crime and Criminal Tracking Network and Systems (CCTNS); relationship with the Aadhaar and tenant verification systems; capacity to track persons through these systems (2019–May 2021). Immigration and Refugee Board of Canada. 26 May 2021. IND200626.E.

[xii] Exhibit 3. National Documentation Package, India, 30 June 2022, tab 12.8: ​Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them; treatment of Sikhs outside t.. Immigration and Refugee Board of Canada. 30 May 2022. IND201037.E.

[xiii] Ibid.