2022 RLLR 109
Citation: 2022 RLLR 109
Tribunal: Refugee Protection Division
Date of Decision: April 4, 2022
Panel: Brian Cook
Counsel for the Claimant(s): François Ouimet
Country: India
RPD Number: TC1-15522
Associated RPD Number(s): TC1-15523
ATIP Number: A-2023-01023
ATIP Pages: N/A
REASONS FOR DECISION
[1] XXXX and his spouse XXXX are citizens of India who seek protection under sections 96 and 97 of the Immigration and Refugee Protection Act. XXXX is the principal claimant and XXXX is the associate claimant.
ALLEGATIONS
[2] The claimants allege that the principal claimant will be subject to persecution by police in India because he has been falsely accused of being a militant.
DETERMINATION
[3] I find that the claimants are persons in need of protection under section 96 of the
Immigration and Refugee Protection Act (IRPA).
ANALYSIS
Identity
[4] The identity of the claimants is established by their testimony and identity documents including passports from India. The associate claimant confirmed that she has only one name – XXXX. She indicated that it is common in India for a person to have only one name. I note that her passport and other identity documents use only the one name.
Nexus
[5] The claimants seek protection under section 96 because of a fear of persecution based on imputed political belief because the police have accused the principal claimant of being a militant or militant supporter and also because of his support for a Dalit family. In addition, they fear harm because of their association with the principal claimant’ s father, a convicted murderer.
Credibility
[6] When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their veracity. The presumption of truthfulness may be rebutted by contradictions in the evidence presented by the claimant, which could establish a lack of credibility. Omissions and vagueness with regards to the claimant’s allegations can also be determinative. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.[1]
[7] The principal claimant testified that he had a difficult upbringing. His father was a drug dealer who is currently in prison serving a XXXX.
[8] The principal claimant testified that he has had different encounters with the police. In XXXX 2016, the police came to the family home to arrest the principal claimant’ s father for XXXX. His father was not at the home and the police arrested the principal claimant instead. He was released after a few days when his father was arrested.
[9] In XXXX 2017, the principal claimant came to the aid of a Dalit boy who was being attacked by a group of militant Hindis. He supported the boy and his family, but the police alleged that the boy was a militant. The boy was able to escape and leave the country. The principal claimant testified that the police claimed that the boy had named the principal claimant as a person who was a militant supporter.
[10] The principal claimant testified the police raided his house in XXXX 2017, searching for material to connect the principal claimant to militants. He was released after a few hours.
[11] The claimants were married in XXXX 2017, and they were both arrested when they were on their honeymoon. This time he was accused of racketeering. The principal claimant was tortured, and the associate claimant was tortured and sexually assaulted and detained for a few hours. On both occasions, release from custody was arranged with the payment of a bribe. The principal claimant testified that he was required to report to the police three times in XXXX 2017 although he was only questioned and not detained.
[12] The principal claimant testified that he was arrested again on XXXX, 2018. He was released on XXXX with the payment of a bribe. The principal claimant alleged that when he was in custody on this occasion, he was subjected to significant torture, including being forced under water.
[13] The principal claimant emphasized that he was told by the police who interrogated him during the XXXX 2018 detention that he had been entered “in the system” because he matched the description of a known terrorist. He testified that the interrogation included questioning from police officers from a number of states including Jammu Kashmir, Pradesh, Haryana, and Rajasthan, as well as the local Punjab police. He explained that he could tell that the officers were from these states because of their uniforms and because they told him. He was interviewed sequentially by the different officers.
[14] When he was released, the principal claimant was told that he must report monthly. He did this in XXXX and XXXX. After the release of the principal claimant on XXXX, 2018, the claimants found an agent who started the process of getting Canadian tourist visas. These were issued on XXXX, 2018, but they did not leave India until XXXX, 2018. The principal claimant testified that in the interim they were waiting to hear from the agent about when they could safely leave and this did not happen until XXXX. They stayed in the family home while waiting to hear from the agent. The principal claimant testified that when he did not report to the police in XXXX 2018, his brother was arrested. He was detained for two days until the principal claimant sent documentation proving that he was in Canada.
[15] The principal claimant testified that since he left India, family members have told him that the police come by the family home every few months enquiring about the whereabouts of the claimants.
[16] The principal claimant testified in a straightforward manner. I did not find any significant omissions or embellishments or other factors that would raise doubt about the truthfulness of the claimant’ s testimony. His testimony was in accord with the Basis of Claim form narrative.
Well-Founded Fear of Persecution
[17] In accepting the credibility of the principal claimant’s testimony, I find that he has established a well-founded subjective fear of continuing persecution if he were to return to live in Punjab state. He has attracted the attention of the police in more than one way. He has been a suspect because of his father and his support for a Dalit boy accused of being a militant. He himself has been targeted as a militant supporter.
[18] The principal claimant has been detained on a number of times and has been subjected to torture on some of these occasions. The associate claimant was also detained and was sexually assaulted. The police have continued to ask about the whereabouts of the claimant and detained the principal claimant’ s brother until it was proved that the claimants were in Canada.
[19] The documentary evidence in the national document package establishes that police misconduct, including failure to follow arrest procedures, torture, solicitation of bribery, and extortion, is rampant in India[2]. There is thus an objective basis for the claimant’s fear of further persecution.
[20] I conclude that the claimants have established a subjective well-founded fear of further persecution if they were to return to Punjab State.
State protection
[21] Since the agent of persecution is the Indian police, I find that state protection would not be available for the claimants.
Internal Flight Alternative
[22] The Federal Court, in Rasaratnam, established a two-prong test for assessing the viability of an internal flight alternative:
(a) There is no serious possibility that the claimant would be persecuted or subject to a risk to life or of cruel or unusual punishment; and
(b) it must not be unreasonable for the claimant to settle in the proposed place of refuge.[3]
[23] The claimants fear that they would be discovered in any internal flight alternative location, including Delhi, the location considered at the hearing. This would happen because the principal claimant was told that he was entered into the police data base as a suspected militant. He was interviewed by officers not just from Punjab State but four other States as well and told that he was entered into the data base for all these States.
[24] The evidence of the principal claimant that he was told that he is in the police data base is somewhat at odds with the fact that the detentions appear to have been illegal arrests as he was never charged with a crime or taken before a magistrate. Illegal arrests are not usually recorded in the CCTNS police data base. However, a Response to Information Request at tab 10.3 of the National Document Package indicates that “tech-savvy officers” now use the CCTNS police data based to record information on persons of interest”. The same document indicates that in addition to First Incident Reports (FIR), the CCTNS database contains 70 million records of which only 25 million are FIRs regarding crimes, leaving 45 million records in the CCTNS that are not FIR’s pertaining to crime.[4]
[25] The principal claimant’s evidence that he was interrogated by officers from several states is also unusual because Indian State police usually operate separately from each other. While the claimants have not produced any documentary evidence to show that the principal claimant was interrogated by police from different States and that his name was to be entered into the data bases of these States, it is not clear what documents the claimants could produce in this regard. It may be that the officers were lying to the claimant about this and that in fact they were not from different States. It could also be that they were lying when they said his name would be in the data bases. However, this is speculative.
[26] I accept that the principal claimant was interviewed by officers who claimed they were from Punjab State and other States and that he was told that his name would be placed in their data bases.
[27] I conclude that this means that there is a serious possibility that the principal claimant is in the police data base of more than one State. This heightens the possibility that police who have access to the data base system could identify the principal claimant as a person wanted by the police.
[28] The claimants fear that they would be discovered through the tenant verification system which requires landlords to register information about tenants with the police. There is conflicting information about this system. Sorne information suggests that it is often not followed by landlords and rarely used by the police to locate anyone. Tab 10.13 quotes an Inspector-General of Police in the state of Haryana who indicates that there is no national data base of criminals or suspects and that state level systems operate as “islands of technology”. However, the same document indicates that there is a National Data Centre operated by the National Crime Record Bureau which provides a searchable national police data base. The report indicates that there are some “technical issues” that can make it difficult to search across States.
[29] In Delhi, the tenant verification system is mandatory and landlords have been prosecuted for failing to register tenants.[5] The intent of the system is to maintain a data base of people living in an area and to allow the history of any tenant to be verified including any criminal involvement or “absconding form other states”.[6]
[30] While the system does not appear to be functioning optimally, it is apparent that the data bases have become more sophisticated in recent years, and it is reasonable to suppose that they will become more so in the coming years. Moreover, according to the evidence of the principal claimant, he has already been entered into the data bases of five States including Punjab.
[31] The agents of persecution in this case have demonstrated an ongoing motivation to find the principal claimant. When he did not appear for the XXXX 2018 interview, his brother was detained. The claimants’ evidence is that the police have subsequently continued to ask about where they are.
[32] From a forward-looking perspective, I find that it is not possible to be satisfied that there is no serious possibility that the claimants would not be persecuted if they were to return to India to live in Delhi or anywhere else in India. There is a serious possibility that the principal claimant is in a police data base and that this could be established through the tenant verification or other systems that include access to the data bases.
[33] I find that the claimants have established that there is not a viable internal flight alternative in India.
CONCLUSION
[34] For these reasons, I find that the claimants are Convention Refugee and entitled to protection under section 96 of the Immigration and Refugee Protection Act (IRPA) and their claims are allowed on that basis.
(signed) Brian Cook
April 4, 2022
[1] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).
[2] NDP tabs 1.5, 2.1, 2.6
[3] Rasaratnam v. Canada (Minister of Employment and Immigration), (1992) 1 FC 706 (C.A.).
[4] NDP item 10.13,
[5] NDP tab 14.8
[6] Ibid.