Citation: 2019 RLLR 73
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: I. Colle
Counsel for the claimant(s): Peter J. Wuebbolt
Country: India
RPD Number: TB9-05340
ATIP Number: A-2020-01274
ATIP Pages: 000214-000220
DECISION
[1] MEMBER: So, I have considered your testimony and the other evidence in the case and I’m ready to render my decision, orally.
[2] I would like to add that in the event that written reasons are issued, a written form of these reasons may be edited for spelling, syntax and grammar and references to the applicable case law and documentary evidence may also be included. I also may add additional footnotes and correct any inadvertent errors.
[3] Now, the claimant is, Mr. [XXX] and he is a 40-year-old citizen of India and is claiming refugee protection pursuant to subsections 96 and 97(1) of the Immigration and Refugee Protection Act.
[4] I considered this claim mainly under Section 96, since the claimant claimed persecution based on political opinion or imputed political opinion.
[5] Now, for the reasons that will follow, I find that you are a Convention refugee, for the following reasons:
[6] He is a resident citizen of lndia who lives in Punjab State.
[7] He is a member of the Shiromani Akali Dal, SAD, political party.
[8] Now, there are two Akali Dal parties in Punjab. The claimant said he was associated with the [XXX] wing, which is led by [XXX].
[9] He said he was beaten and harassed by members of the Congress Party and also by their links with the police. He said he was detained and tortured and was asked to appear at the police station every month for an indefinite period.
[10] The claimant is or was a [XXX] in India.
[11] He was a member of the [XXX] wing since [XXX] 2011. He used to assist his cousin in arranging pilgrimage trips for community members in Yatra in Pakistan and he would also take part in organizing Party meetings with the help of community members.
[12] In [XXX] 2017, a Congress Party area leader noticed him and asked him to join the Party. He refused to join.
[13] In [XXX] 2017, he was beaten by three Congress Party members when he was convincing a group of people to attend his Party meetings.
[14] He went to a doctor for treatment. He went to the police to report the incident but instead of helping him, the police threatened him with detention for making false accusations against Congress Party members and ordered him to leave the station.
[15] In [XXX] 2017, he was able to convince four community members to join the Party. One of them had previously supported the Congress Party and he was also a cousin of the Congress Party leader.
[16] In [XXX] 2017, he received a threatening phone call from a Congress Party member and on [XXX], 2018, he was picked up from home by the police and detained without charges. He was interrogated and beaten by the police and told that he had links with Sikh militants.
[17] They questioned him about his involvement in the arrangement of [XXX] trips for pilgrims to Pakistan and the addresses of people that had assisted him in trips in the past and the people he knew in Pakistan. An officer warned that he could be threatened indefinitely on suspicion of espionage.
[18] His uncle came and after some negotiations, was able to get him out of detention on [XXX], 2018 after paying a bribe.
[19] However, the officer still told him he had to report every month indefinitely and he warned him not to be involved in any political activity and if he did not show up at the station, he would be tracked down and picked up from anywhere in the country and brought to the station where they would torture him to death.
[20] Upon his release, he needed medical attention.
[21] About a week later, the Congress leader, again, threatened him that it is a matter of time before he is beaten to death or permanently detained by authorities.
[22] He started to make plans, had to collect substantial funds in order to leave the country. He relocated to the state of Himachal Pradesh. It’s to the east of Punjab. So, he stayed there and still though, would come back to the state of Punjab to report monthly and when he would come back, he alleged that he would be slapped, manhandled and humiliated by the authorities.
[23] His friend was able to find an agent who asked for 20 lakh rupees to make overseas travel arrangements. He made visa applications for himself and his spouse, without their daughters and he arrived in Canada on [XXX], 2018, accompanied by his spouse, who soon returned to India.
[24] He was in status. He had status for about six months and was able to contact present Counsel and started the process of making a refugee claim before his status expired in [XXX] 2018.
[25] He approached Immigration with his Counsel in [XXX]. The forms were finally filled out in [XXX] 2019.
[26] Now, the claimant also alleged that he suffered severe mistreatment, both physically- he underwent beatings and harsh treatment in prison and has continued to do follow-up medical visits and he said that, because of the continuing stress and tension, also because of the mistreatment, eventually contributed to him suffering a [XXX] in 2019, for which he still being treated today.
[27] Now, the claimant, regarding identity, he said he had lost his passport and he provided a police, Toronto Police Service report, part of Exhibit 5, that he reported the loss of his passport but I note in his Exhibit 1, there is a certified true copy of his Indian identity card from the government, issued by the government of India, with his name, [XXX] and it has his address in Punjab, [XXX] in Punjab.
[28] The claimant spoke fluently in Punjabi. He had other identity documents. In Exhibit 5, people attesting to his identity, including a letter from a spiritual centre, from relatives. There is also copies of his work in India as a [XXX].
[29] So, on a balance of probabilities, I conclude that the claimant is who he says he is and that he is from the Punjab.
[30] I found the claimant to be a very credible witness and, therefore, believe what he has alleged in support of his claim. I agree with Counsel that he did not exaggerate or embellish his claim. He testified in a straightforward manner and there were no relevant inconsistencies in his testimony or contradictions between his testimony and the other evidence before me.
[31] During the hearing, I asked for additional details and he credibly is, I find, on a balance of probabilities, a member Shiromani Akali Dal Party, the XXXX wing. He was able to identify the leader. He was able to identify members of the provincial assembly, both from the Akali Dal Party and from the, what he called, his agents of persecution, from the BJP Party.
[32] He gave vivid details about his detention in jail at the police station in XXXX, how he was beaten, humiliated, sometimes the officers went out of their way to humiliate him and to beat him and he was kept, basically, in a state of terror for every time he would report every month and while the claimant did relocate to, as I said, the neighbouring state of, Himachal Pradesh and we’ll go into that later as we discuss internal flight alternative.
[33] So, I find that he was in effect, he was – I would not – his profile was not as a high-level Shiromani Akali Dal member, nor a low level. I think. I think he was a mid-level member who was active in his party and had good knowledge of the political situation in Punjab and credibly came to the attention of Congress Party members.
[34] Now, in this case, given that the – in this case, in that the police were agents of persecution, I find that state protection would not be reasonably forthcoming.
[35] Now, I find that the claimant has made a claim under Section 96, political opinion and before we get into that and the issue of IFA, I’m going to just note that he had many corroborating documents in his Exhibit 5 that attest to his political involvement and the history of abuse that he alleged.
[36] Now, before we get into documents, I should also mention, I did consider the issue of delay in making a claim but I note the claimant came with a visa, was never out of status and made arrangements with Counsel to make his refugee claim before that status had expired.
[37] So, in any event, the delay in making a claim cannot be a sole reason for denying a claim and in this regard, I’ve given him the benefit of the doubt.
[38] In Exhibit 5, we have, attesting to his religious background, the letter from the [XXX] in Toronto.
[39] I found a letter also from his Party in Exhibit 5 at page 2, which, on a balance of probabilities, I find genuine and it attests to his persecution he suffered in Punjab.
[40] There is supporting affidavits from family and Party members throughout. Again, I find no inconsistencies in those.
[41] There is plenty of documentation that he was a [XXX]. He did explain that there was a Canadian visitor’s visa. He didn’t know what the agent filled out, claimed he worked for the local government. But there’s documents in Exhibit 5 that attest to his work in the agricultural industry as a [XXX].
[42] There is also – and I was able to examine the originals – again, I could find no discrepancy, internal discrepancies in these documents. There is page 13 document from the [XXX] Clinic. There is another one from a hospital in – [XXX] Hospital. There is also his continuing treatment in Toronto in Etobicoke.
[43] It states on page 15 from, Dr. [XXX], that he is, he has a [XXX] history and he has attended to his office on six times.
[44] There is some more comprehensive consultation report on the [XXX] situation, starting at page 16. It’s a consultation report that was done on [XXX], 2019. It talks about his [XXX] history, the impairment he has undergone, as well.
[45] There is also many photos of his political and agricultural activities as a [XXX] in Punjab.
[46] So, on a balance of probabilities, I find that he was a [XXX] and he was involved with the Party.
[47] Now, internal flight alternative, I considered whether there was a viable internal flight alternative for you. I identified a number of areas in India, including in the neighbouring state at Himachal Pradesh.
[48] Also, I mentioned cities such as, Mumbai and Calcutta, Delhi, also as, Hyderabad. Now, I should note that in regards to Himachal Pradesh, the ruling party of the state is his alleged agent of persecution, the Indian National Congress and I considered the other – his argument that he could be traced by his residency card or that he could be traced by the police when he’d have to rent, for example, when he’d have to do some requirements and procedures for tenant registration, that he could be traced that way.
[49] However, I conclude that in regards to the first prong of the test, there is no serious possibility of persecution based on a review of the documentary evidence that, for example, in the National Documentation Package, Item 14.10, the Home Office Report on Internal Relocation, at page 6, states that:
“Tracking and surveillance systems appear to be limited and there is no centralized registration system in place to enable police to check the whereabouts of inhabitants in their own state or in other states or union territories and that each state and union territory has responsibility for its own separate police force and effectiveness and conduct varies across states.”
[50] So, I find, based on a review – especially of Exhibit 14.10, there is no serious possibility of him being traced. It says that, India, for example, at page 10:
“India does not have a centralized registration system in place to enable police to check the whereabouts of inhabitants in their own state let alone in other states or union territories and that tracking and surveillance systems appear to be limited.”
[51] However, I have to also consider the second prong of the test and that whether it be reasonable, in all the particular circumstances, for the claimant to relocate to those IFA identified areas, such as, Calcutta or Delhi. I did not consider Himachal Pradesh because it’s controlled by the Congress Party.
[52] Now, the Federal Court has mandated the Board or the Refugee Division to consider other factors under Section 96 – I’m talking about- not 97 – 96 imputed political opinion or political opinion.
[53] The Court has identified also, medical and psychological reports that provide objective evidence and that I’m mandated to consider whether it would be unduly harsh to expect a claimant to move to potential IFA areas.
[54] Now, I considered the medical evidence that was in Exhibit 5 in finding that it would not be reasonable in all his particular circumstances, the claimant’s particular circumstances, to relocate to these IFA areas. The medical evidence demonstrates, on a balance of probabilities, that the claimant suffered severe beatings and that it led to a series of events and, on a balance of probabilities, that led to his current medical state.
[55] I see the claimant had to then report once to the police but at least reported five or six times. Every time he went, he underwent beatings. This had a cascading effect on his medical health.
[56] I note that the claimant subsequently, in Canada, suffered from a [XXX] that incapacitated him to the point that at times, he could not even speak Punjabi, could not even write, although that’s recovered. He was severely restricted in the use of his right hand. It severely affected his ability to work, let alone as a [XXX], but let alone work and he has now, even in the hearing, had to wear a monitor around his neck that monitor’s his medical condition to detect any possible ongoing or future [XXX].
[57] So, given the claimant’s very unique medical situation, that’s corroborated by at least three reports in Exhibit 5, I find, on a balance of probabilities, under Section 96 that the second prong of the test, that it would not be reasonable, in all his particular circumstances, to relocate to these IFA designated areas, given his medical condition as a [XXX] patient who is undergoing still, some after effects that could plausibly be linked to his mistreatment, harsh mistreatment, at the hands of Indian police in the state of Punjab, where he was detained, beaten and humiliated.
[58] So, given in regards to this medical evidence, again, I’ve afforded the claimant the benefit of the doubt. I find that it is, on the balance of probabilities, that based on <inaudible> medical evidence, he did suffer severely and harshly because of mistreatment, both physically, psychologically and it affected his physiology as well and that, given his situation as a [XXX] patient right now and his inability to work now it would not be reasonable, in all his particular circumstances, to relocate to the IFA designated areas.
[59] So, I said I examined all the originals. There was no discrepancies and I will return them now to Mr. [XXX].
[60] So, in summary then, the claimant – I considered the claimant’s personal situation in deciding and determining the reasonableness of the IFA and I considered both his medical condition and his inability to earn a livelihood.
[61] Therefore, I conclude that the claimant, Mr. [XXX], is a Convention refugee and, therefore, accept his claim.
[62] Thank you very much.
[63] The hearing is concluded.
——— REASONS CONCLUDED ———-