Citation: 2022 RLLR 78
Tribunal: Refugee Protection Division
Date of Decision: May 27, 2022
Panel: Radostina Pavlova
Counsel for the Claimant(s): Giovanna Allegra
Country: India
RPD Number: TC1-18585
Associated RPD Number(s): TC1-18586, TC1-18587
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision for the claims of refugee protection of XXXX XXXX XXXX, the principal claimant, XXXX XXXX XXXX, associate claimant, and XXXX XXXX XXXX, associate claimant.
[2] You are all citizens of India, claiming refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.
[3] The claims were heard jointly in accordance to rule 55 of the RPD Rules.
[4] The principal claimant is the designated representative of the minor claimant, XXXX, who is his daughter.
[5] I have considered your testimonies today and I have considered all the evidence provided, as well as the National Documentation Package for India. I have also taken into consideration the Chairperson Guidelines 4, Women Refugee Claimants Fearing Gender-Related Persecution. I have taken into account the submissions of the Minister, who intervened in this hearing, in writing, on the issue of credibility. And the documentary evidence provided in support the Ministerial submissions.
[6] I am ready to give you my decision orally.
[7] I’m accepting your claims for refugee protection.
[8] I find that the principal claimant is a Convention refugee, on the grounds of his imputed political opinion. The associate claimants are also Convention refugees, on the basis of membership in a particular social group, the family, as the wife and the child of the principal claimant. And the associate claimant XXXX XXXX XXXX XXXX is also a member of a particular social group, based on her gender, a woman who is a survivor and who fears gender-based violence.
[9] In summary, you allege that you fear the police authorities in India because they believe that the principal claimant, Mr. XXXX XXXX, is connected to Sikh militants and is involved in anti-government activities.
[10] You allege, Mr. XXXX XXXX that you’re from a village in the XXXX district, in Ludhiana, in the Punjab in India. You’re a farmer by occupation, and you’re of the Sikh religion.
[11] You claim that your problems in India are related to your familial connection with your cousin XXXX XXXX, a XXXX in Sikh temples, who was arrested in 2015 and 2016, because he had taken part in protests against the government in the Punjab.
[12] You allege that his father, your uncle, was tortured by police and he passed away. A ceremony for your uncle was held at your home on XXXX XXXX XXXX 2017, and your cousin XXXX XXXX who was in hiding, came to see his mother. The next morning you allege police came to your home, raided your house, and arrested you. And you allege that you were interrogated and tortured while in police custody. And you were released four (4) days later when a bribe was paid, on condition that you report every month and provide information about your cousin.
[13] You needed, and you obtained, medical treatment for your injuries while in police custody. After your release, you went to live with relatives in XXXX, because you were scared. While you were living there in hiding, the police kept visiting your house, and one (1) night, on XXXX XXXX XXXX 2017, they arrested your wife, the associate claimant, detained her overnight and assaulted her physically and sexually.
[14] She revealed your whereabouts to the police, and they raided the house of your relative, but you had gone to live with an agent in preparation to leave the country. Your wife, the associate claimant, joined you and you left together with your daughter in XXXX 2017.
[15] You allege that while you were in hiding, the police were harassing your mother and she had to move and live different places with relatives. You claim that the police are still looking for you, and people in the community have informed you that they come to your house every couple of months to check. Most recently, in XXXX this year. And that for this reason, there is still a risk for you and your family in India.
[16] When it comes to identity, I find that your personal identities, and that you are citizens of India has been established, on a balance of probabilities, by your oral testimonies and the certified true copies of your passports, which are on file.
[17] In terms of credibility.
[18] I found you to be credible witnesses.
[19] You answered all my questions and there was no evasiveness in your testimonies. You were able to explain very clearly, Mr. XXXX, the reasons why the police targeted your cousin, what information they wanted from you, the mistreatment you suffered while in custody, and the steps you took to seek security, first in hiding with your uncle, then staying with an agent until you were able to travel to Canada. Your testimonies today were spontaneous, unrehearsed, and emotional when you recalled the mistreatment on the part of the police.
[20] In assessing your credibility, I address several issues in the hearing today. Firstly, there was some delay in claiming asylum after you arrived in Canada. You arrived on XXXX XXXX XXXX 2017, but you did not submit your applications for asylum until XXXX 2018.
[21] I also asked you to explain why you applied for a US visa whilst in Canada, and before asking for protection in Canada. This is a relevant issue when it comes to your subjective fear of returning to India. As somebody fearing persecution would reasonably not take the risk not being allowed back in Canada and being potentially deported in the country of persecution, as the Minister pointed out in his submissions.
[22] In your testimony you clarified that the two (2) issues were connected. You wanted to go to the US because your sister lives there, and you were thinking of applying for asylum in the US. It was only after your visa for the US was refused that you decided to apply in Canada. You also testified that the agent had assured you that you were safe in Canada for six (6) months, as he told you this was the time period in which you were allowed to stay as a visitor.
[23] You testified that you were conscious of the possibility of not obtaining asylum in the US. But you were not aware of the consequences of not being able to come back to Canada or being deported from the US.
[24] While I understand that having family in the US can be a reason to go there instead, overall, I agree with the Minister that a logical behaviour of somebody fearing persecution in their country would be to apply for asylum in the first secure place, in your case, Canada. I do not think that your preference to be in the US should have been predominant in your considerations, as you testified.
[25] So, while I cannot conclude that the explanation you gave is reasonable, I take into account that it is well established in the jurisprudence that factors like delay, in your case, trying to go to another country, as well, instead of immediately applying for asylum, are relevant when assessing your subjective fear.
[26] However, such factors cannot be in themselves decisive and sufficient to deny a claim. And in the totality of the evidence in your case, they cannot outweigh the evidence that I have before me, and your testimony that I found credible, about your experiences of persecution in India.
[27] For these reasons, I find that your delaying claiming asylum and the application for a US visa are not determinative. And they are not fatal to the outcome of your claim.
[28] Finally, I asked you questions about your residency status in Kenya, because you indicated in your Basis of Claim forms that the associate claimant studied there, and that she lived there until 2009. And the principal claimant also indicated having lived in Kenya for about a year and a half, in 2008/2009.
[29] You explained, Mrs.XXXX XXXX, that you were independent of your father, who was there on a working visa. He provided a copy of a temporary residence card for Kenya, and its length was for one (1) year. You testified that this permit had to be renewed regularly, which was done by your father. There is nothing in the available documentary evidence to suggest that either of you had a permanent residence or equivalent status in Kenya.
[30] Therefore, I do not have concerns for possible exclusion under Article 1E of the Convention, and I find that the sole country of reference for you is India.
[31] Other than those concerns that I just discussed, that I found were explained or not determinative, there were no significant omissions and inconsistencies that would undermine the credibility of your core allegations.
[32] You submitted, in support of your allegations, documentary evidence, including medical reports for both the principal claimant and associate claimant. They were consistent with the alleged injuries sustained while in detention for the principal claimant. And they also corroborate the associate claimant’s allegations of the assault. These documents carry all the attributes being issued by the medical facility, and I find no evident reason to doubt their authenticity.
[33] You also submitted sworn statements notarized, signed, and dated from the former head of the village, from neighbours, from your relative who sheltered you, Mr. XXXX, and from your mother. They corroborate your allegations and are consistent with the alleged facts.
[34] Therefore, taking into consideration all this evidence and your testimonies, I find, on a balance of probabilities, that you have established your core allegations, and that you are afraid to return to India at this moment.
[35] In order to find that you’re Convention refugees, your subjective fear must be well founded, that is, it must have an objective basis. And for this, I rely on the National Documentation Package for India, the NDP, that’s at Exhibit 3.
[36] The documentary evidence indicates that the law in India prohibits torture, but the police nevertheless employ such practices. This is at Item 2.2 of the NDP.
[37] At Item 2.1, the US Department of State report, confirms that police use mistreatment to obtain false confessions. There’s also an indication that people will publicly express their views critical of the government and police, face risk of discrimination by the State, which may include arrest, harassment, and prosecution.
[38] Item 10.1 state that police in India commonly, illegally detain, physically or sexually assault, or torture suspects, in order to punish them or to gather information, to extort, or coerce confessions from them. It notes that family members who attempt to assist their relatives may be threatened or mistreated, as in the present case.
[39] The same report contains numerous accounts of police failing to follow formal arrest procedures and of registering false records against suspects after detaining them illegally, in order to substantiate false cases against a suspect. Also, false charges are reportedly brought regularly against alleged Sikh militants, and are used by the State to silence political opponents.
[40] There are examples mentioned din the NDP of everyday people who are suspected of associating with Sikh militants being arrested, under ostensible and unverifiable evidence, and this information can be found in Item 4.9. Some of the accused are sentenced to prolonged sentences, including life in prison. And that’s in Item 4.4.
[41] Therefore, I find that the objective evidence supports the principal claimant’s allegations of being arrested and tortured because of being perceived as associated with Sikh militants, and opponents of the government.
[42] When it comes to the associate claimant’s alleged fear of gender-based persecution, I find that it is also supported by the objective evidence. Sexual violence by police and other state officials experienced by women in India is well documented in the NDP.
[43] At Item 5.9, sexual violence is widespread across the country and perpetrated in public and private spaces. There is a general sense of insecurity for women in public spaces in India. Item 2.1 states that rape, including gang rape, and by government official, is a persistent problem in India. And Item 5.9 talks about reports of women being assaulted by police, while in police custody.
[44] Item 5.4 of the NDP states that women who experience sexual violence are stigmatized, and it is considered a woman’s shame. So, there are many social barriers to talk about that. Item 5.9 says that sexual offences are underreported due to social stigma that’s deeply entrenched in patriarchal attitudes of the police, and the justice system blames, often, the victims for these incidents.
[45] And for these reasons, on the basis of the information found in the NDP, I find that the objective evidence has established that your fear of persecution in India is well founded and has an objective basis for both of you, for all of you.
[46] In terms of state protection, I find that you have rebutted the presumption of state protection with clear and convicting evidence.
[47] In reviewing the country conditions of state protection in India, the objective evidence shows that corruption within the police force in India within the police force is a serious problem. For example, at Items 10.1 and 9.9.
[48] Furthermore, given that the police from your home area of residence is the agent of persecution in the present case, I find that one (1) cannot reasonably expect you to receive adequate state protection from them.
[49] I have also considered whether there is viable internal flight alternative for you anywhere in India.
[50] I find that you have established, on a balance of probabilities, that you were arrested and detained, and your information was taken down. And you are considered to be associated with Sikh militants. All of this indicates that the police authorities would be able and motivated to find you in a different jurisdiction in India, if they wanted to do so.
[51] You have, furthermore, established, on a balance of probability, that the police has, in the past, used your family members, harassing them and torturing them, in order to reveal your whereabouts. This is how they found your address when you were in hiding, Mr. XXXX, from your wife, when she was detained and tortured. And they have also been approaching your mother regularly, and recently for the same purpose, to get information of your whereabouts.
[52] The Canadian courts have established that it is unreasonable to expect refugee claimants to cut ties with family members in order to avoid being found by the agent of persecution in a given IFA location.
[53] And when it comes to gender-based violence, the available information in the NDP does not indicate that the situation is any different in any part of India. And I do not find it reasonable to ask the associate claimant to relocate within India, and to be subjected to psychological hardship by fear of experiencing the same kind of violence again.
[54] For these reasons, I find that there’s no viable internal flight alternative in India for you.
[55] In conclusion, when I look at the totality of the evidence, your testimony, the documents in the NDP, the documentary evidence you provided, I find that all three (3) face a serious possibility of persecution in India.
[56] Therefore, you meet the definition of Convention refugee under section 96 of the Immigration and Refugee Protection Act, and I accept your claims for refugee protection.
——— REASONS CONCLUDED ———