Citation: 2019 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: September 11, 2019
Panel: Milton Israel
Counsel for the claimant(s): Ronald Yacoub
Country: India
RPD Number: TB7-23722
ATIP Number: A-2020-01274
ATIP Pages: 000074-000079
REASONS FOR DECISION
[1] [XXX], the principal claimant, and [XXX], his wife and the associate claimant, citizens of India, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1
ALLEGATIONS
[2] The Basis of Claim Form (BOC) of the principal claimant (hereafter the claimant) represented both claimants.2
[3] The claimant alleges in his narrative that he and his wife were threatened and attacked by members of the Rashtriya Swayamsevak Sangh (RSS), a Hindu nationalist organization that supports the Bharatiya Janata Party (BJP), the ruling party in India.
[4] The claimant further alleges that RSS members attempted to kill him on [XXX], 2017, as well as a few times earlier. The reason for these attempts was a statement that the claimant made at his Gurdwara, indicating that people should be able to eat any meat they desired, including beef. This was considered to be an insult to Hindus who considered the cow to be holy.
[5] The claimant received threats from the RSS and went to the police, but received no help. The threats also made an impact on his health, causing [XXX], [XXX], [XXX], and [XXX]. As a result, he and his wife moved to Amritsar, and stayed with his nephew. However, extremists followed him there, and he received a death threat. He went to the police again, but received no help.
[6] On [XXX], 2017, the claimant and his wife returned to their home in [XXX]. The next day, members of the RSS attacked his home, and the claimant was beaten. On [XXX], the claimant and his wife went to New Delhi, where he received first aid, and on [XXX], they left India and came to Canada.
[7] On [XXX], 2017, their house was attacked again. The claimant alleges that they assumed he was there, and would have killed him if he had not left India.
THE ISSUE
[8] The determinative issue in this claim is credibility.
[9] The panel questioned the claimant concerning his allegations. He was asked how Hindu nationalists heard about his statement as he made it in a Gurdwara. The claimant explained that there was a nearby Hindu temple, and Hindus often came to the Gurdwara.
[10] The panel noted that the three affidavits he disclosed concerning the incident in the Gurdwara were word for word exactly the same,3 and the claimant was asked how that was possible if they were prepared independently. The claimant explained they were given in Punjabi, and then translated into English. The panel noted the Punjabi originals were not disclosed, and the claimant explained they were prepared for Canada. The panel is not persuaded that the three affidavits were prepared independently, and finds that the word for word replication reduces their evidentiary weight as to the claimant’s allegations.
[11] The claimant was questioned as to the alleged attempt of the RSS to kill him on [XXX], 2017. He described being dragged out of his house and beaten. The claimant was asked if there was an attempt to kill him, and he testified that they had no knife or gun. He further testified that his wife screamed, and neighbors came and the perpetrators ran away.
[12] The panel noted that the claimant indicated in his narrative that there were other attempts to kill him, and the claimant was asked to describe those incidents. The claimant testified as to the threats, and his trouble recalling these incidents. The panel notes that no substantive evidence was provided, either in the claimant’s narrative or in testimony, which concerned such alleged incidents. Subsequently, the claimant testified that between 2014, when the Gurdwara incident occurred, and 2017, when his house was attacked, there were only threats.
[13] The panel noted that the claimant disclosed four affidavits concerning the alleged attack on [XXX], 2017.4 The panel further noted that the four affidavits are exactly the same. The claimant provided the same explanation as in the case of the affidavits concerning the Gurdwara incident. The panel finds, again, that there is a significant doubt that these affidavits were prepared independently, and gives them reduced evidentiary weight.
[14] The claimant’s son, [XXX], a resident of Canada, appeared as a witness in the hearing. He testified that he visited India, and talked to his parents’ neighbors and officials in the Gurdwara. They confirmed the claimant’s allegations regarding his speech in the Gurdwara, and the attack on his home. He further testified that he visited his parents’ home, and was attempting to repair some broken windows and a door, when he was attacked by two men. He ran to another house, and subsequently received medication and therapy for an injury to his shoulder.
[15] The witness also testified that his father, who is 70 years old, was being medicated for his diminishing mental abilities, which resulted from the trauma he experienced in India. The panel notes a medical document was disclosed in this regard.5 Moreover, the witness stated that the claimant dictated his narrative to his daughter-in-law, but his mental state was not normal at the time.
[16] The panel finds that the claimant testified in a straightforward manner. The panel further finds that it has credibility concerns about the affidavits disclosed by the claimant, and the claimant’s allegations about multiple efforts to kill him without evidentiary support. The panel notes that the claimant changed his testimony in this regard in the hearing.
[17] The panel further finds that while the affidavits have been found to be of reduced evidentiary weight because of the content duplication, their corroboration of the claimant’s allegations is not totally undermined.
[18] In regard to the panel’s concern about the credibility of some of the claimant’s testimony, it notes that the evidence provided by the claimant’s son and in medical documentation, provides a credible explanation concerning the claimant’s diminished mental condition.
[19] The panel finds, on a balance of probabilities, that the claimant has been a credible witness as to his allegations concerning his Gurwara remarks, and the resulting attacks by members of the RSS.
[20] The panel notes that it indicated at the beginning of the hearing that even if the claimant’s allegations concerning his RSS risk are found to be credible, he has an internal flight alternative (IFA) available to him in Mumbai.
[21] The panel questioned the claimant as to his possible resettlement in Mumbai if he believed he and his wife were unsafe in Punjab. The claimant responded that Sikhs were a minority community, and the RSS was everywhere in India. The panel noted that Sikhs lived in all parts of India, and that there was no constraint on their doing so. The claimant responded that Mumbai was costly, and the panel noted that, like all major cities, there were less expensive communities on the periphery of the expensive center. The claimant further testified that there was a bias in favor of Maharashtrians, but the panel noted that Mumbai remained a cosmopolitan metropolis. The claimant responded that he had lived his life in a small community, and he did not have many more years to live.
[22] The panel has considered the two prongs of the IFA test, and acknowledges that both prongs must be satisfied for finding that the claimants have an IFA.6 While the panel is satisfied with the requirement of the first prong, that there is no serious possibility of the claimants being persecuted in the part of the country to which it finds an IFA exits, the requirement of the second prong, that the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for him to seek refuge there, has not been met.
CONCLUSION
[23] The panel finds, on a balance of probabilities, and in the context of the evidence concerning the claimant’s age and mental health, that an IFA in India is not available to him. The panel further finds, on a balance of probabilities, that the principal claimant and the associate claimant cannot return to India without the risks pursuant to section 97(1) of the IRPA. Therefore, their claims are accepted.
(signed) Milton Israel
December 11, 2019
1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC) – TB7-23722.
3 Exhibit 5, Claimant’s Disclosure, at pp. 23, and 28-29.
4 Exhibit 5, Claimant’s Disclosure, at pp. 24-25, 27, and 30.
5 Ibid., at p. 74.
6 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).