2022 RLLR 108

Citation: 2022 RLLR 108
Tribunal: Refugee Protection Division
Date of Decision: May 11, 2022
Panel: Andrew Hwang
Counsel for the Claimant(s): Luciano G. Del Negro
Country: India
RPD Number: TC1-15208
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A

 

REASONS FOR DECISION

 

[1]       These are the reasons for decision of the Refugee Protection Division (RPD) in the claim for refugee protection of XXXX. He is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”)[1]. The claimant alleges to be a citizen of India.

 

DETERMINATION

 

[2]       The panel finds the claimant to be a Convention refugee, and that he faces a serious possibility of persecution should he return to India on account of imputed political opinion.

 

ALLEGATIONS

 

[3]       The specifics of the claim are set out in the narrative of the claimant’s Basis of Claim Form[2]. To summarize, the claimant alleges that he is being targeted by police for false allegations of ties to Khalistani militants simply because he provided temporary shelter to a nephew who had escaped the country under suspicion of the sa.me accusations. He had been questioned, arrested, detained, and pressured several times, escalating into more violent interactions where he was beaten. He further alleges that since he fled the country officers have continued to ask for him on a regular basis to this day, and that he fears he will face a risk of harm at the hands of the police should he return to India.

 

IDENTITY

 

[4]       The persona! identity of the claimant as a citizen of India has been established, on a balance of probabilities, by a copy of his Indian passport[3].

 

NEXUS

 

[5]       The panel finds there is a nexus between the harm the claimant fears and a Convention ground, namely imputed political opinion for being involved with Khalistani militants alongside his nephew who was a terrorism suspect sought by police.

 

CREDIBILITY

 

[6]       The panel finds the claimant to be a credible and trustworthy witness. His testimony was straightforward, sincere, and unembellished. There were no relevant inconsistencies, contradictions, or omissions that went to the heart of his claim. Therefore, the panel finds, on a balance of probabilities, his allegations to be true.

 

Claimant’s Nephew and the Police

 

[7]       The claimant indicated that his problems back home started when he received a surprise visit from his nephew XXXX on XXXX, 2018. XXXX was the son of a deceased uncle who came to the claimant’ s family home from his village several kilometres away seeking temporary shelter due to the fact that he was being sought by the police. The claimant testified that both he and his wife said they did not want trouble with authorities and asked XXXX to leave, but his nephew was able to plead to stay at the small house adjacent to the family home for a day or two. Unfortunately, XXXX ended up with the claimant for 15 days despite repeated requests to leave before the claimant finally gave an ultimatum to his nephew to vacate.

 

[8]       When asked by the panel, the claimant said he did not know any of the details of why XXXX was being pursued by police. XXXX did not volunteer any more details, and he did not want to ask. He was also uncertain as to why XXXX chose him to request shelter, but suspected in hindsight that other relatives who may have known more of what problems XXXX had with the police declined to assist him so he went to see the claimant.

 

[9]       Not long after XXXX left his property on XXXX, 2018, the claimant said police came to his house on XXXX to start asking questions about his nephew. He testified that the officers asked about XXXX stay, what he was doing while staying there, where he went, and whether the claimant knew where his nephew was at the time. From these queries, he knew the officer had knowledge that XXXX stayed with him. Although he is unclear as to how police learned of this other than theorizing that someone in his village may have seen XXXX coming in and out of the house and reported it to authorities. The claimant also said it was the first time he learned of why police were looking for his nephew: It was because of suspected links to Khalistani militants. The police left after 30 minutes or so, but returned two days later on XXXX asking him about XXXX again. The claimant testified that he believes police came back so soon to because they may have suspected he was still giving shelter to his nephew.

 

[10]     The claimant said during the summer of 2018, the police came to his house two more times. But during these visits, the tone changed and officers started to accuse him of being involved with Khalistani militants through XXXX.  He would be interrogated about militant activity, but denied all of the allegations. Officers would then leave his house without arresting him. However, this changed on XXXX, 2018 when he was taken into custody, beaten and interrogated about ties to militants, and released several hours later and only upon payment of a bribe. In addition, the claimant was given reporting obligation every XXXX days starting in XXXX 2018. Despite the beating, he was not injured to the point of needing medical attention, so he went home to recuperate.

 

[11]     In the meantime, XXXX was able to flee the country and go to Russia with a forged passport with the help of an agent in Rajasthan. The claimant was able to contact XXXX once or twice since his departure and told the nephew to inform police that he had fled India. The claimant and his family felt he should also escape for his safety, and found an agent in Punjab to assist with getting him to Canada. The visa was approved in XXXX 2018 as the claimant tried to gather funds to make payment. In an unfortunate stroke of luck, his house had a break in and enter in which the robbers found the cash he was saving for the agent and stole the money. Without payment, he said the agent would not return his passport or make any further arrangements to leave. So he had to continue saving up and fulfill his reporting conditions to the police.

 

[12]     The claimant presented himself at the station for the XXXX 2018 and XXXX 2019 report, and said officers just asked about XXXX whereabouts and nothing more before he was told he could go. However, for the XXXX 2019 report he said police once again accused him of militant links and were much more aggressive with him about the whereabouts of XXXX. Then on XXXX, 2019 a group officers arrested him from his home, took him to the station, interrogated and beat him, and accused him of Khalistani militant ties, as well as illegal possession of weapons and other serious offences. He testified that police also referenced a Malaysian woman named XXXX who was associated with XXXX and presumably to the claimant. In spite of police’ s assault and pressure, he said he steadfastly denied all allegations. He was released the next day with a bribe payment and the additional condition of not leaving his village.

 

[13]     He sustained injuries and had to be hospitalized several days. At this point, family and friends rallied and collected sufficient fonds to pay the agent’s fee. He was able to obtain his passport with the Canadian visa, and depart from India a few days later on XXXX, 2019.

 

[14]     The claimant provided the following documents as evidence:

    • Medical Certificate from XXXX Hospital in XXXX for treatment on XXXX, 2018 for a week before being discharged on XXXX[4]; and
    • Affidavit from the village XXXX speaking about how the claimant got into trouble with police for helping his nephew, that he was detained and accused of supporting a Khalistan referendum, and how police continue to look for him[5].

The panel finds these documents to be credible and trustworthy and gives them full weight in support of the claimant’ s allegations in his claim.

 

[15]     During the hearing, the panel was made aware that the claimant had provided four other documents as evidence in addition to the two referenced above. They are as follows: A medical certificate for treatment after his XXXX 2019 detention; an affidavit by his mother; an affidavit by the village XXXX; and a letter by a neighbour. He testified he had given them to his previous counsel, and was unaware that they were not disclosed for the hearing until he was asked about corroborating evidence. His current counsel indicated he did not know of these other documents until the claimant mentioned them in testimony. The claimant was asked if he had copies of these documents that could be disclosed after the hearing, and responded in the affirmative. Counsel stipulated that he would assist the claimant to obtain the copies and disclose them.

 

[16]     In light of the circumstances, the panel allowed time for counsel to send in post-hearing evidence on or before the end of day on May 6, 2022 to allow the claimant a fair chance to have these documents considered for the determination of his claim. However, the Board was not in receipt of these four documents by the time this decision was issued, nor was there a request for an extension of time or even a reason as to why they were not disclosed. The panel even instructed the Registry to contact counsel prior to the due date as a reminder, but no follow up or acknowledgement was received.

 

[17]     The four documents in this case would have substantiated aspects of the allegations that went to the core of the claimant’s claim based on his brief description of their nature, and thus would likely have been relevant and had probative value. Where a claimant fails to produce evidence that could reasonably be available and was an important piece of information, the panel is entitled to draw a negative inference in credibility assessment. In this situation, these documents are not evidence that should or could have been procured; they are in the possession of the claimant per his own testimony, but, for whatever reason, have not been disclosed despite given an opportunity and counsel’s undertaking at the hearing.

 

[18]     In considering whether to draw a negative inference, the panel is conscious of how the evidence at issue was likely overlooked inadvertently during a change of counsel at no fault of the claimant, as well as the claimant’s own level of sophistication being a farmer from a rural village with a seventh-grade education and little knowledge of the English language or legal procedures. Furthermore, the fact that there was missing evidence emerged organically as the claimant gave testimony, and he was able to list all of the documents that he had supposedly provided to his previous counsel without hesitation that suggested it was not an attempt to sneak in new evidence that should have been obtained and disclosed beforehand. For these reasons, in spite of counsel’s failure to make post-hearing disclosure as promised, the panel will not penalize the claimant and thus will not draw a negative credibility inference against him for the lack of corroborating evidence in this instance.

 

Prospective Risk

 

[19]     When asked what he fears should he return to India, the claimant said he does want to be subjected to an endless cycle of police harassment, detention, beating, and pressure to confess to the false militant link allegations against him.

 

[20]     The claimant has established, on a balance of probabilities, that he had a nephew who was sought by police and had asked him for temporary shelter; that despite initially refusing, he later agreed to offer shelter for a short time; that after his nephew left police started coming to his home questioning him about the nephew; that his interactions with police eventually escalated to the point he was repeatedly questioned, verbally abused, falsely alleged to have militant ties, and detained twice for interrogation and questioning; that he fled his country for safety and he now fears he would face risk of harm from the police should he return to India.

 

[21]     For the above reasons, the panel finds that the claimant has established subjective fear of persecution based on political opinion.

 

OBJECTIVE BASIS

 

[22]     The National Documentation Package (“NDP”) for India indicates that the rule of law is massively undermined by political corruption; corruption continues to be prevalent at all levels, and in sectors such as the police, the judiciary, and the public services[6]. Public officials in India continue to enjoy effective immunity for serious human rights violations. Government officials and police enjoy protection from legal proceedings as the Criminal Code and other legislation require government permission to initiate prosecutions against them[7]. This has prevented proper accountability for human rights violations such as torture, enforced disappearances, and extrajudicial killings by the police[8]. Police-public relations is in an unsatisfactory state because people view the police as corrupt, inefficient, politically partisan, and unresponsive[9].

 

[23]     Corruption within the police force remains a problem. Torture, abuse, and rape by law enforcement and security officials have been reported. A bill intended to prevent torture remains pending[10]. New cases of torture in police custody and extrajudicial killings highlighted continued lack of accountability for police abuses and failure to enforce police reforms[11].

 

[24]     The law prohibits torture, but there were reports that police forces allegedly employed such practices[12]. According to human rights NGOs, police used torture, mistreatment, and arbitrary detention to obtain forced or false confessions[13]. In some cases police reportedly held suspects without registering their arrests and denied detainees sufficient food and water[14]. There were incidents in which authorities allegedly detained suspects beyond legal limits[15]. By law authorities must allow family member access to detainees, but this was not always observed[16]. The law prohibits arbitrary arrest or detention, but in some cases police reportedly continued to arrest citizens arbitrarily[17]. There were reports of police detaining individuals for custodial interrogation without identifying themselves or providing arrest warrants[18].

 

[25]     The law also does not permit authorities to admit coerced confessions into evidence, but NGOs and citizens alleged authorities used torture to coerce confessions[19]. Authorities allegedly also used torture as a means to extort money or as summary punishment[20]. There were reports of abuse in prisons at the hands of guards and inmates, as well as reports that police raped female and male detainees[21]. Victims of crime were sometimes subjected to intimidation, threats, and attacks, including by government officials[22].

 

[26]     Punjab police believes that militancy is returning to the state[23]. People suspected of supporting Khalistan are monitored, often included on police lists for heightened scrutiny, and often charged in terrorism-related cases, which can result in being detained for years before being released due to lack of evidence[24]. Sikhs who are suspected of being militant sympathizers are subject to monitoring and in some cases, detention and torture[25]. While Punjab has not seen a return to wide-scale violence that marked the years 1980-1995 in which the Sikh community as a whole faced hardships, segments of the Sikh population in India continue to face harassment, detention and torture due to their political or religious beliefs[26]. Punjab police conduct regular arrests of alleged Sikh “terrorists,” often based on false charges, and the arrests are used as a tool to harass or silence political opponents[27]. The police also continues to violate the human rights of Sikhs by arresting Sikh youths illegitimately by using the blanket term “dangerous terrorists”[28].

 

[27]     Based on the claimant’ s evidence and the country conditions cited above, the panel finds that his subjective fear has an objective basis, and that he faces a serious possibility of persecution in India. Therefore, the panel finds that the claimant has a well-founded fear of persecution in the country.

 

STATE PROTECTION

 

[28]     There is a presumption that states are capable of protecting their own citizens. However, a claimant can rebut the presumption of state protection and demonstrate that they would not receive such protection by providing clear and convincing evidence of the unwillingness or inability of the state to protect them.

 

[29]     The panel finds that the police are the primary agents of persecution in this matter. The country conditions reviewed above confirm that police throughout India frequently engage in arbitrary, extended, and unlawful detention of suspects of terrorism such as the claimant, despite laws ostensibly prohibiting or checking such behaviour.

 

[30]     In terms of recourse and protection in cases of mistreatment by authorities, India’s judiciary remained overburdened, and court backlogs led to lengthy delays or the denial of justice[29]. While in theory Indian citizens can approach the courts for relief including against illegal or inappropriate actions by the state and its agents, that recourse is not available to Sikhs or political activists opposing the ruling government in Punjab; government officials use procedural tactics in order to demonstrate that they are following the law, however the police or state government may influence the decision of judges resulting in an unfair trial or no trial at all[30]. If a Sikh community member, activist, or member of an opposition party reports mistreatment to the police, the police do not follow up on the complaints and police officers and or government officials are not suspended or prosecuted[31].

 

[31]     Based upon the claimant’ s credible testimony and the objective evidence cited, the panel is satisfied, on a balance of probabilities, that the presumption for the claimant has been successfully rebutted with clear and convincing evidence. The panel therefore finds that state protection in India is inadequate and would not be reasonably forthcoming for him.

 

INTERNAL FLIGHT ALTERNATIVE

 

[32]     The panel has considered whether a viable internal flight alternative (“IFA”) exists for the claimants in India. The agents of persecution are the police, agents of the state. The panel has identified Mumbai and Kolkata at the start of the hearing because they are large metropolitan cities that are far away from Punjab.

 

[33]     In assessing an IFA, the panel must apply a two-pronged test cited in Rasaratnam with respect to its safety and reasonableness[32]. One of the prongs must be satisfied to find that the claimant does not have an IFA. The burden of proof rests with a claimant to show that they do not have an IFA. The finding of an IFA must be based on a distinct evaluation of a region for that purpose, taking into account the claimant’s identity. An IFA must be a realistic and attainable option. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in traveling there or staying there.

 

[34]     With respect to motivation, the claimant testified that the police continue to ask about him two to three times a month since he left the country by approaching his wife, his neighbour XXXX, and the village Sarpanch. When he spoke with his daughter yesterday, she informed him that police had come to the family home earlier in the day once again asking if he had returned. He provided the affidavit of the Sarpanch corroborating that these individuals are still fielding queries about him. The panel finds, on a balance of probabilities, that the police remain motivated to find him.

 

[35]     When asked how Punjab police would be able to find and apprehend him if he moved to another city like Mumbai far away from his home village, the claimant said he would likely be located once he uses the verification or criminal background check system that are mandated for purposes of job application or accommodation rental. This would alert Punjab police of his presence in the country, but also the local police in Mumbai that he is being sought on serious allegations of terrorism. He believes Punjab police would utilize resources to seek his return to his home state. It is possible that police in Mumbai would also take an interest in him and subject him to similar treatment back home.

 

[36]     On the evidence presented, including the objective documentation in the NDP, the panel finds that there is a serious possibility that the claimant would be persecuted in India under the first prong. Since the claimant has met the burden of satisfying the first prong, there is no need to assess the second prong. As such, the panel concludes there is no viable IFA for him in the country.

 

CONCLUSION

 

[37]     Based on the totality of evidence, the panel finds that the claimant has established there is a serious possibility of persecution on a Convention ground because of political opinion pursuant to section 96 of IRPA.

 

[38]     Therefore, the panel accepts his claim.

 

(signed) A. Hwang

 

May 11, 2022

 

 

 

[1] Immigration and Refugee Protection Act,  S.C. 2001, c. 27).

 

[2] Exhibit 2.

 

[3] Exhibit 1.

 

[4] Exhibit 5.

 

[5] Ibid.

 

[6] Exhibit 3. NDP India, 29 April 2022. Item 1.13 BTI 2020 Country Report – India.

 

[7] Exhibit 3. NDP India, 29 April 2022. Item 2.13 Submission to the UN Human Rights Committee Review of India.

 

[8] Ibid.

 

[9] Exhibit 3. NDP India, 29 April 2022. Item 10.9 Police Reforms in India.

 

[10] Exhibit 3. NDP India, 29 April 2022. Item 2.6 India. Freedom in the World 2021.

 

[11] Exhibit 3. NDP India, 29 April 2022. Item 2.3 India. World Report 2021: Events of 2020.

 

[12] Exhibit 3. NDP India, 29 April 2022. Item 2.1 India: Country Reports on Human Rights Practices for 2020.

 

[13] Ibid.

 

[14] Ibid.

 

[15] Ibid.

 

[16] Ibid.

 

[17] Ibid.

 

[18] Ibid.

 

[19] Ibid.

 

[20] Ibid.

 

[21] Ibid.

 

[22] Ibid.

 

[23] Exhibit 3. NDP India, 29 April 2022. Item 4.9 India: Treatment of political activists and members of opposition parties in Punjab; treatment of perceived supporters of Sikh militancy by authorities (2017-April 2018).

 

[24] Exhibit 3. NDP India, 29 April 2022. Item 4.4. India: The Shiromani Akali Dal (Amritsar) (SAD(A)) [Shiromani Akali Dal (Mann); SAD(M); SAD(Amritsar); Shiromani Akali Dal (Amritsar) (Simranjit Singh Mann)], including origin, structure, leadership, objectives, and activities; requirements and procedures to become a member of the party, including membership cards; treatment of party members and supporters by authorities (2017-June 2020).

 

[25] Exhibit 3. NDP India, 29 April 2022. Item 12.4 India: Treatment of Sikhs in Punjab (2013-April 2015).

 

[26] Ibid.

 

[27] Ibid.

 

[28] Ibid.

 

[29] Exhibit 3. NDP India, 29 April 2022. Item 12.4 India: Treatment of Sikhs in Punjab (2013-April 2015).

 

[30] Ibid.

 

[31] Ibid.

 

[32] 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.), p. 710.