Citation: 2020 RLLR 66
Tribunal: Refugee Protection Division
Date of Decision: January 14, 2020
Panel: Reisa Khalifa
Counsel for the Claimant(s): Fevziye Oguzer
Country: India
RPD Number: MB9-14037
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000046-000054
[1] MEMBER: This is the decision of the Refugee Protection Division in the claim for refugee protection of Mr. [XXX], file MB9-14037, citizen of India. He is seeking asylum under s. 96 and s. 97(1) of the Immigration and Refugee Protection Act.
Decision
[2] The panel concludes that the claimant has established that he faces a serious possibility of persecution in India on the basis of religion. The panel therefore finds that he is a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act and accepts his claim.
Summary of Allegations
[3] The claimant’s detailed allegations are contained in his basis of claim form. The claimant fears for his life, if he were to return to India, due to his faith as a member of the Muslim minority religion in India. As a result of his religion, he has been targeted by members of an extremist Hindu group for his faith. He has been personally targeted and threatened on several occasions by a group of extremists.
[4] On one occasion, he was pulled out of his car and threatened with a gun when he was on the way home from work in Pune (ph.). And then he had relocated to Mumbai and he was again threatened that at any time the orders could be sent for him to be killed.
[5] The claimant has also observed similarly situated individuals being beaten and killed, and he has seen numerous videos, unfortunately, of this happening to members of the Muslim minority, in videos that have been uploaded from numerous locations throughout India, and, unfortunately, the people not being brought to justice.
[6] So, the claimant has established that he faces the serious possibility of persecution based on his religion.
[7] The claimant had relocated several times within India for the safety of himself and his family; and yet, he continued to receive threats. He lived for a while at a college residence and he lived at various hotels. He obtained a visa to the United States. He travelled to the United States several times to look into various opportunities, including possibly claiming refugee status, and he was told that it would be a process of eight to ten years where he would not be able to see his family and that there was a low chance of success. He also looked into possibly getting a job there, being sponsored by a possible employer, and that didn’t work out. He had also looked into coming to Canada based on points, coming as a permanent resident. He looked into many different options and he was – at a certain point, he had – his US visa had been cancelled and he went to try to find out why and he was unable to obtain an answer from the authorities. He also obtained a Canadian visa. And after looking into many different possibilities that he testified to, he had finally come to Canada in [XXX] 2019. And the following month, in [XXX] 2019, he had claimed asylum here.
Analysis
Identity
[8] The claimant’s personal and national identity as a citizen of India is established, on a balance of probabilities, by the documentary evidence on file, specifically his Indian passport.
Nexus to the Convention
[9] The claimant’s allegations establish a nexus to the Convention. He faces persecution, based on his religious beliefs as a member of the Muslim minority faith in India. His claim, therefore, has been analysed under s. 96 of the Immigration and Refugee Protection Act.
Credibility
[10] The panel finds that the claimant is credible for the following reasons.
[11] Testimony provided under oath is presumed to be truthful, unless there is a reason for doubting its truthfulness. In this claim, the panel has no such reason.
[12] The claimant testified in a sincere detailed manner. He provided clear and compelling answers regarding the situations he faced, in which he repeatedly over the years was made to feel fearful as a Muslim living in India. For example, he had been willing to pay extra money considered a personal tax to a rickshaw driver because of his faith. He was forced to participate in prayers of the Hindu faith at his office, even though it wasn’t his personal belief, as he was pressured to do so in order to keep his job, in order not to face persecution at work. And several years ago, he stopped wearing his traditional prayer outfit that would normally be worn on Fridays because of fear of being persecuted for his Muslim faith. These are just some of the examples that he provided. But perhaps the most compelling example was when he stated that just speaking to his wife on the phone in a taxi, he had made, as he had said, the mistake of greeting her in a traditional way of his faith, and that this mistake had led to his life being threatened by the taxi driver on another occasion. And just the very fact that the claimant would consider it to be a mistake to greet his own family with a traditional greeting demonstrates the level of fear that he was subjected to.
[13] The claimant also provided testimony regarding him having personally observed videos that had been uploaded by Hindu extremist groups, killing without fear of repercussions, beating and killing members of the Muslim minority faith, and how he had seen (inaudible) similarly situated individuals being persecuted and there not being an legal repercussions.
[14] So, the panel found that all of his testimony added to the credibility of his claim and demonstrated that he had actually experienced these things, and that he had not only a subjective fear but also an objective basis for this fear throughout his life, being raised to sort of hide his religion and then, more recently, over the years, that the atmosphere was becoming increasingly hostile towards members of his faith, and that this was being encouraged by the current régime.
[15] So, the panel did have concerns about – well, one concern about the fact that there were some contradictions regarding the dates. And so, the claimant had repeatedly said that he is bad with dates, that he has trouble remembering exact dates when things happened. However, when the panel weighs this against the quality of his testimony and all the information he provided, including the order in which the events occurred, he provided lots of details of the events and who was present and his thought process and what was said to him and what was done. And so, all of these details outweigh the concern that the panel would have about the claimant not remembering certain dates. They were far outweighed by the quality of his testimony and also by the documentary evidence that he provided and the objective documentary evidence that’s in the National Documentation Package.
[16] The claimant provided a considerable amount of documentary evidence in support of his allegations and some of the most relevant evidence includes:
Exhibit C-1, the pages from the letter of his job at [XXX] (ph.);
Exhibit C-2, a payslip from his job, when he returned to Mumbai at the [XXX] (ph.);
Exhibit C-3, a letter and piece of identification from a co-worker who had observed him being followed and people asking about him, and who personally was told by the claimant about his situation;
Exhibit C-4, a letter and piece of identification from the claimant’s wife, explaining in detail and in a very compelling and emotional fashion in the letter about the situation that the whole family has been subjected to.
Exhibit C-5 shows some text messages with the person at the college hostel who had helped him to arrange the claimant to stay there briefly;
Exhibit C-6 shows hotel booking when he was also trying to stay away from his home to protect his family and also to not be tracked by the agents of persecution.
[17] The claimant also provided documentary evidence in the form of newspaper articles regarding the situation in India and the current régime and how, unfortunately, there is an encouragement of violence against Muslims in India. And these are Exhibits C-7, C-8, C-9, C-10 and 11, which document beatings and killing of members of the Muslim minority faith in India in regions all around the country, to show the widespread nature of this persecution.
[18] So, I will indicate some of the national documentary evidence that corroborates the testimony of the claimant of the persecution that he would face if he were to return to India, and that corroborates his experience when he was in India.
[19] Tab 2.3 details the government’s failure to prevent attacks on Muslims and the encouragement of the régime of anti-Muslim activity. And this was also mentioned by the counsel.
[20] Now, Tab 12.1 indicates that authorities are not prosecuting the harming of non-Hindu individuals, which was also mentioned by counsel.
[21] There’s Tab 12.5 that discusses the current régime’s complicity in violence against minority religions.
[22] Tab 10.7 – also Tab 12.9. That talks about the killing of Muslims that have been accused of either eating or selling beef. And the claimant had talked about the seriousness of being accused of eating beef could lead to someone being killed and learning that even in certain districts mutton is not even allowed to be eaten.
[23] So, there is also discussion in Tabs 12.10 and 12.14 about the persecution of Muslims throughout India.
[24] So, these are just some examples, particular examples, in the National Documentation Package that detail the persecution of Muslims in India and the current régime’s complicity, and even encouragement, in these attacks.
[25] So, the panel finds that there were no relevant inconsistencies, contradictions or omissions between the claimant’s basis of claim form, his testimony at the hearing and the documentary evidence on file that were not reasonably explained.
[26] So, for all these reasons, the panel finds that the claimant’s allegations are credible.
[27] The panel finds that the claimant has established, on a balance of probabilities, that he is of the Muslim faith; that, as a result of his faith, he has been threatened on multiple occasions in India, including at gunpoint and including being told that at any point he could be just killed. And he has observed similarly situated individuals being persecuted, based on their membership in the minority Muslim religion. And so, he has established that he faces a serious possibility of persecution if he were to return to India.
State Protection
[28] The panel finds that the claimant has rebutted the presumption of State protection with clear and convincing evidence that the authorities in India would be unable or unwilling to provide him with adequate protection.
[29] The claimant provided credible testimony about the killing of, unfortunately, people of the Muslim faith – being killed, or beaten and then killed, and shown on videos without legal repercussions. And this was like common knowledge throughout India, unfortunately. And that – this is also reflected, this lack of adequate State protection, in the documentary evidence., Tab 10.7 and Tab 10.10. So, Tab 10.7, as is referred to by counsel, talks about the perception of the Muslim community, and how police target and victimise Muslims based on their identity and that there is a distinct bias, and that there’s actions that indicate bias against the Muslim community in India, and this is on a systemic scale. And this is something that was referred to by counsel and also discussed by the claimant as being fearful of the authorities. And specific examples – in Tab 10.10 of the National Documentation Package, it discusses human rights abuses being committed by police that are reported to be widespread and conducted with impunity. Persons from marginalised minority communities are particularly affected and excessive force by security forces are reported, including extra-judicial killing. As well in Tab 10.10, it also states that judicial corruption is widespread and that justice is often delayed or denied. There’s also mention in Tab 10.10 how lower levels of the judiciary in particular have been rife with corruption and most citizens have great difficulty securing justice through the courts. And research by the Canadian Immigration and Refugee Board’s Research Directorate indicted corruption within the Indian judicial system at different levels that affects the effectiveness of the courts. So, this is in addition to the other – to the credible testimony of the claimant and the documentary evidence put forth by counsel and discussed by counsel that demonstrates that there is a lack of adequate protection.
[30] And so, the panel finds that if the claimant were to approach the authorities for protection in India, adequate protection would not be forthcoming to him.
[31] Claimants are not required to risk their lives seeking inadequate protection, merely to demonstrate its ineffectiveness.
[32] So, for all these reasons, the claimant has rebutted the presumption of State protection.
Internal Flight Alternative
[33] For the reasons just described regarding the lack of State protection – as well as the fact that the national documentation that was produced by counsel, and also that’s in the National Documentation Package, shows that there are, unfortunately, attacks and killings of Muslims by extremists groups throughout India, in many regions throughout India, such that the panel finds that the claimant would face a serious possibility of persecution throughout India – the panel finds that there is nowhere in India that the claimant could relocate that could be safe and reasonable. And in particular, due to the current régime’s complicity, and even encouragement, of attacks on Muslims.
[34] So, for these reasons, the panel finds that the agents of persecution have, on a balance of probabilities, both the means and motivation to harm and find the claimant throughout India.
[35] So, the panel concludes that there is no viable internal flight alternative for the claimant in India.
Conclusion
For all of these reasons, the panel finds that the claimant has established a subjective fear of return to India that is objectively well-founded.
The panel concludes that the claimant has established that he faces a serious possibility of persecution in India, in accordance with s. 96 of the Immigration and Refugee Protection Act.
And the panel therefore finds that he is a Convention refugee, pursuant to s. 96 of the Immigration and Refugee Protection Act and accepts his claim.
— Decision concluded