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2021 RLLR 38

Citation: 2021 RLLR 38
Tribunal: Refugee Protection Division
Date of Decision: December 15, 2021
Panel: Ayo Adetuberu
Counsel for the Claimant(s): Luciano G. Del Negro
Country: India
RPD Number: TC1-12301
Associated RPD Number(s): TC1-12302
ATIP Number: A-2022-00978
ATIP Pages: 000018-000026

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX (principal claimant) and XXXX XXXX XXXXX (minor claimant), citizens of India, who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”)1.

ALLEGATIONS

[2]       The specifics of these claims are stated in the narratives of the claimants’ Basis of Claim (BOC) form.2 In summary, the claimants allege that they cannot return to India because they fear being persecuted by the police based on their membership of a particular social group namely: family ties with XXXX XXXX – an XXXX involved in XXXX XXXX XXXX XXXX.

[3]       The principal claimant is XXXX XXXX XXXX. The police were allegedly seeking to arrest XXXX who hid in the claimants’ house before he left India on XXXX 2019. The suspicion that the claimants hid XXXX in their house resulted in police harassment against the claimants.

 [4]      On one of the raids by the police on XXXX 2019, the principal claimant was beaten, arrested, and sexually assaulted by the police after they discovered that she was in communication with XXXX. Subsequently, the principal claimant left India for Canada on XXXX 2019. After the principal claimant’s departure, the police raided the claimants house and harassed the minor claimant. The minor claimant was brought to Canada by his father on XXXX 2019, and together the principal and minor claimant made a refugee claim on October 17, 2019.

[5]       In rendering the decision and reasons, the panel considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution3 to ensure that appropriate accommodations were made in questioning the principal claimant, in the overall hearing process, and in substantively assessing the claims.

DETERMINATION

[6]       After considering the claimants’ testimony and the documentary evidence, the panel finds that the claimants are “Convention refugees” based on their membership of a particular social group: family ties with XXXX XXXX – an XXXX involved in XXXX XXXX XXXX XXXX.

ANALYSIS

Identity

[7]       The panel finds that the claimants’ identities as nationals of India are established on a balance of probabilities by the copies of their Indian passports4.

Credibility

[8]       Testimony provided under oath is presumed to be truthful unless there is a valid reason for doubting its truthfulness.5

[9]       In assessing the credibility of the evidence presented by the claimants, the panel accepts the allegations in the claim on a balance of probabilities. The claimants’ testimony was consistent, spontaneous, and was generally supported by personal documentary evidence. As such, the panel finds that the claimants have established the following facts on a balance of probability.

  • That XXXX is involved in XXXX XXXX XXXX XXXX based on the principle claimant’s testimony that he XXXX XXXX in the community.
  • That XXXX’s political stand forms the basis of police assault and harassment against the claimants.
  • That the police arrested and sexually assaulted the principal claimant on XXXX 2019, and as a result she sought medical attention at XXXX XXXX under the care of Dr. XXXX.
  • That the principal claimant and her husband are separated due to the ongoing issues with the police in India and the principal claimant’s testimony that their last communication was about two years ago.
  • That the police harassment has not only made the principal claimant fearful but also affected the mental state of the minor claimant.

[10]     The panel further notes that the claimant’s allegations are supported by personal documentary evidence which establish that the claimants face persecution because of their membership of a particular social group: family.

[11]     The panel finds no reason to doubt the authenticity of the documentary evidence that the claimants disclosed. The panel finds that the evidence supports and corroborates the claimants’ allegations and accords them full weight in establishing the basis of persecution, attacks and sexual assault against the claimants, and the forward-facing risk the claimants face should they return to India. Specifically, the panel referred to the following documents:

  • An affidavit dated 29-11-2021, by XXXX XXXX, the village sarpanch corroborating the basis of persecution, subsequent attacks and forward­ facing risk the claimants face should they return to India;6
  • An affidavit dated 01-12-2021, from the principal claimant’s parents, XXXX XXXX and XXXX XXXX corroborating the basis of harassment by the police, subsequent assaults, and the condition of affairs between the principal claimant and her husband7;
  • A copy of the doctor’s note from XXXX XXXX XXXX dated 30-11- 2021, by Dr. XXXX regarding the minor claimant’s diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX and the medication currently being administered8; and a copy of the note from the minor claimant’s school counsellor, XXXX about the minor claimant’s traumatic experience for the school year 2020-20219 corroborates the principal claimant’s testimony about the impact of the police harassment in India on the minor claimant.

Well-Founded Fear of Persecution

[12]     Item 12.4 of the NDP10 reports that Sikhs account for approximately 2% of the population in India. The report further states that communities that “advocate for and support a separate Sikh state or Khalistan” or challenge the power of the state government in religious matters, activists against Sikhs who are suspected of being “militant sympathizers” are “subject to monitoring and in some cases, detention and torture”. Objective country evidence further reveals that the status of women in India is not equal to that of men, and that gender-based violence is prevalent across India. 11

[13]     Item 1.5 of the NDP12 further reports that the ease with which an individual can relocate internally depends to a large degree on their individual circumstances, including whether they have family or community connections in the intended area of relocation, and their financial situation. According to the report, internal relocation is generally easier for men and family groups as local sources advised relocation would generally be possible for a single woman without children, who was able to access accommodation and support networks, or who was educated, skilled or wealthy enough to support herself.

[14]     The panel finds that the principal claimant testimony about the difficulty she will experience in renting as a single woman, her language and work skills, her responsibility to her son, and her age effectively described the difficulties experienced by persons perceived to supporters of Khalistan. The principal claimant’s testimony also confirms the experience of women in India based on their gender and has convincingly described her fears for future persecution because she is a woman.

[15]     The principal claimant’s subjective fear for her safety in India because she is a woman is supported by objective country evidence, which shows that similarly situated women in India are likely to be faced with serious threats such as rape, domestic violence, dowry related deaths and honour killings.13

[16]     The panel finds that the claimants have demonstrated, on a balance of probabilities, that they have a subjective fear of persecution in India that is objectively well founded.

State Protection

[17]     The panel finds that the claimants have rebutted the presumption of state protection with clear and convincing evidence that such protection is not available to them. This includes the principal claimant’s testimony that the state is the agent of persecution, and her sexual assault experience at the hands of the police. The panel finds that the principal claimant’s reluctance to seek police protection was reasonable in her circumstances.

[18]     The panel therefore finds that, based on a balance of probabilities, state protection is not available to the claimants.

Internal Flight Alternative

[19]     IFA analysis is a two-prong approach.14 In considering the identified IFAs, the panel is mindful that the Federal Court of Appeal has set a high threshold for the second prong of the IFA test in that “it requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant”.15 The jurisprudence is clear that the personal circumstances of the claimant must be central to the reasonableness analysis.16 The central question in the second prong of the test is whether expecting the claimants to relocate to the proposed IFA locations would be “unduly harsh”.17

[20]     The claimants bear the burden of proof. In this case, the panel has proposed IFAs in Mumbai or Rajasthan, India.

[21]     When asked if there was any reason, apart from the alleged agents of persecution, that she could not travel to and live in Mumbai or Rajasthan, the principal claimant testified that without a man in her life, she could not move to or live in the proposed IFAs. She testified that as a single woman, no one would rent her a place to live, because single women do not live on their own.

[22]     The principal claimant also testified that although she works in a XXXX in Canada, she has never worked in India, and would not be able to get a job without connections or the support of a man. She further testified that because of her separation from her husband, she has no one in India who would support or help her. The minor claimant who would have been able to support the principal claimant has also been diagnosed of XXXX XXXX XXXX XXXX XXXX XXXX which makes it difficult for him to focus on school.

[23]     The principal claimant testified that because they would not be able to find or afford housing in either of the IFAs, she would be forced to live on the street, which could subject her to sexual abuse at the hands of men.

[24]     Objective country evidence shows that single women in India need to depend on the goodwill of others to provide for them.18 This same evidence indicates that landlords do not want to rent to a single woman, as they are expected to live with a male relative. Other country evidence shows that domestic violence, which includes control, isolation, threats, and coercion, greatly increases the chances of an Indian woman becoming homeless, and that violence against homeless women in India is rampant.19

[25]     Based upon the claimants’ testimony and the objective country documentation, the panel finds that it is not reasonable for the claimants to seek refuge in Mumbai or Rajasthan. The principal claimant has no work experience in India. She is a victim of sexual assault by the police who are the people meant to protect her, her education level is low, she does not speak Hindi which is spoken at the IFA locations, and she has no employable skills to support herself in the IFA locations. She is currently separated from her husband and would have no family or friend support in any of the proposed IFAs to assist her with employment or housing. In addition, the principal claimant is responsible for the minor claimant who is undergoing XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[26]     In considering all of the circumstances that are particular to the claimants, the panel finds that they would not be able to successfully establish herself in India. The panel is also mindful of the Chairperson’s Guideline 9, Women Refugee Claimants Fearing Gender-Related Persecution, and the fact that expecting the claimants to relocate to an IFA, given their particular circumstance, would subject them to a risk of homelessness, and related sexual violence and other forms of violence addressed in the referred guideline. This would make the claimants’ relocation to one of the proposed IFAs unduly harsh.

[27]     Because the panel has found that relocating to one of the proposed IFAs would be unduly harsh for the claimants, there is no need to analyze the first prong of the IFA test. The panel finds that, based on a balance of probabilities, the claimants do not have a viable IFA in India.

CONCLUSION

[28]     Having considered all the evidence, including the claimants’ testimony, the panel finds that the claimants face a serious possibility of persecution in India as members of a particular social group, fearing persecution due to their membership in a family.

[29]     Therefore, the panel finds that the claimants are “Convention refugees” pursuant to section 96 of the IRPA.

[30]     The panel accepts their refugee claim.

(signed) Ayo Adetuberu

December 15, 2021

Immigration and Refugee Protection Act, S.C. 2001, c. 27, section 96 and 97(1) [IRPA].

2 Exhibit 2, Basis of Claim Form (BOC)

3 Immigration and Refugee Board of Canada (IRB) Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB. December 2012

4 Supra note 2

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

6 Exhibit 5 – Disclosure Documents received on December 2, 2021, item Cl

7 Ibid., item C3-C6

8 Ibid., item C7

9 Ibid., item CS

10 Exhibit 3 National Documentation Package (NDP), India, 30 June 2021, tab 12.4

11 Ibid., item 5.2

12 Ibid., item 1.5

13 Ibid., item tab 5.6

14 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).

15 Ranganathan v. Canada (MCI), 2000 CanLII 16789, at para 14.

16 Supra, note 8.

17 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

18 Exhibit 3 NDP for India, 30 June 2021, item 5.11

19 Ibid., item 5.2