2022 RLLR 110
Citation: 2022 RLLR 110
Tribunal: Refugee Protection Division
Date of Decision: May 2, 2022
Panel: Mary Truemner
Counsel for the Claimant(s): Gaurav Sharma
Country: India
RPD Number: TC1-15815
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
Introduction
[1] These are the reasons for the decision in the claim of XXXX, who claims to be a citizen of India, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).
Allegations
[2] The claimant alleges that the police in Punjab have persecuted him for a political opinion that he never had, but that has been imputed to him because of his association with a Sikh friend, and supporter of the SAD (Mann) party who the police wanted to arrest as a Khalistan separatist. The police required the claimant to locate his friend, and when he could not, they extrajudicially detained and severely beat him. They took his photograph, fingerprints and signature. After releasing him, the police told the claimant that he needed to stay in the area, but he fled to Canada. The police have been searching for the claimant since.
Decision
[3] The claimant alleges, that should he return to India, the police will discover his presence and resume persecuting him with threats, extrajudicial detentions and beatings. Given that I find below that there are no serious credibility issues with respect to the allegations, coupled with the documentary evidence set out below, I find that the claimant is a convention refugee, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should he return to India, on account of his imputed political opinion. My reasons follow. There is no need for me to determine whether the claimant is a person in need of protection, pursuant to section 97(1)(b) of the IRPA.
Determinative issues
[4] The determinative issues in this case are credibility, state protection, and internal flight alternative (IFA).
Identity
[5] I find that the claimant’s identity as a national of India is established by the claimant’s Passport and Aadhaar card seized by Citizenship and Immigration Canada officials when he made his claim.
Credibility and Subjective Fear
[6] The claimant described in his Basis of Claim (BOC), and in his testimony at the hearing, events that led to his flight to Canada. The claimant is from the district of Nawanshahr in Punjab. While attending college in XXXX in that district, he befriended a fellow student who is from Chandigarh. The claimant and his friend stayed in touch after college, and the claimant was aware that his friend started to support the Shiromani Akali Dal (“SAD”) party.
[7] The claimant’s evidence is that during the December 2017 elections, the claimant’s brother XXXX for the Bharatiya Janata Party (BJP). The claimant’s friend happened to visit the claimant during the campaign, and helped the claimant campaign for the claimant’s brother, staying with the claimant. According to Item 4.9 of the National Documentation Package (“NDP”)[1], the BJP and the SAD were campaigning together in 2017 in Punjab’s state assembly elections, but the Indian National Congress won. In the election, the claimant’ s brother XXXX the Congress Party.
[8] The claimant’s evidence is that after the election, the claimant’s friend decided to stay in Nawanshahr to work for the SAD (Mann) party. In XXXX 2018, the claimant co-signed for him to rent an apartment from someone the claimant had met in his shop. The landlord took photocopies of the claimant’ s identity information, and gave the claimant a set of keys for the apartment. The claimant neither lived in the apartment, nor did he pay rent.
[9] The claimant’ s evidence is that on XXXX, 2018, the police attended the claimant’s shop, and questioned him about his friend. They had already attended his friend’ s apartment, but the friend was not at home, and the landlord had told the police that the claimant was a co-signor.
The police asked the claimant to telephone his friend, but the friend’s telephone was switched off.
[10] The claimant’s evidence is that the police then took him to his friend’s apartment, and took the claimant’ s keys to enter while the claimant remained outside. The officers came out of the apartment with the friend’s computer equipment and discs that they confiscated because they found records of the friend giving speeches in favour of Khalistan, and criticizing the government and the police for atrocities on minorities, particularly Sikhs. The claimant told the police that he had no knowledge of his friend’s political activities, and had not participated in such activities, but he agreed to find his friend for the police.
[11] According to the NDP’s Item 4.4[2], “SAD (Mann)” is the name used interchangeably with the “SAD (A)”, and it is the party that is a faction of SAD that holds itself out to revolutionary. SAD (A) came into being after the government raided the Golden Temple in 1984, killing Sikh militants who sought independence for Punjab. The objective of the SAD (A) is the creation of a separate Sikh country, called Khalistan. While the SAD(A), as a party with legal status, is generally non-violent, it had members who sympathized with armed Sikh separatists. The police monitor individuals who support or advocate for Khalistan, and they are often included on police lists, and charged in terrorism-related cases, which can result in being detained for years before being released due to lack of evidence.
[12] The claimant’s evidence is that by XXXX, 2018, he was unable to locate his friend, and the police brought him to the police station where they took his photograph, his fingerprints and signature. During the night, they interrogated and brutally beat the claimant who they believed maintained links with his friend, and supported his friend’s anti-government activities. The police maintained that all SAD (Mann) supporters are separatists involved with the Khalistani movement.
[13] The claimant’s evidence is that the next day, XXXX, 2018, the police released him to his father, but the police told him that he would need to find his friend, and to return to the police station in the future when directed to do so. He couldn’t walk, and his father took him to a hospital where he was treated for multiple injuries.
[14] The claimant’s evidence is that the police called the claimant soon after to check whether he had made progress in finding his friend. The police warned that if he tried to move to another state, he would be located and arrested. The claimant tried again to locate his friend in various ways, but he gave up hope that he could do so. He received legal advice that if he could not assist the police, then he should leave.
[15] The claimant’s evidence is that he travelled to Delhi the first week of XXXX, where he hid while living with another friend who encouraged the claimant to leave India. The claimant retained an agent. The agent obtained a visa for the claimant in XXXX 2019. Out of concern that the claimant’s exit could be blocked because the Punjab police would be looking for him, the agent arranged for someone at the airport to ensure that the claimant would succeed in boarding a plane at the Delhi airport.
[16] According to Item 14.9 of the NDP[3], it is unlikely that the claimant would have been prevented from departing at the airport given that there is no direct information sharing between police and airport officials other than in exceptional cases, but the NDP confirms that the claimant would have to fill out a departure card with contact information, and airport authorities do some screening for departing passengers. I find that it is reasonable that the claimant wanted extra safeguards from the agent in departing from the airport.
[17] The claimant arrived in Canada on XXXX 2019, but delayed over four months before claiming refugee protection. The claimant testified that when he fled from India to Canada, his objective was to escape India and flee to safety. He didn’t know that he could claim refugee status in Canada. His friends with whom he lived in Brampton, after arriving in Canada, helped him to learn about his right to claim refugee status, and assisted him in moving to Montreal where, in XXXX he retained counsel to make his claim. I find that this explanation for the delay in Canada in making a claim is reasonable in his alleged circumstances. He had no idea in India of the possibility of making a refugee claim, and only learned about the process once safe in Canada. I also note that the claimant said that he was depressed while hiding in Delhi after his detention and beating in Punjab. The delay does not raise significant concerns for me with respect to subjective fear or credibility.
[18] The claimant’s evidence is that since arriving in Canada, he has been told by his father that the police continue to enquire about his whereabouts, threatening to charge the claimant if his friend cannot be found. The claimant testified that the police had visited his family looking for him as recently as XXXX, 2021.
[19] I find the claimant to be a credible witness and therefore believe what he alleges in support of his claim. He testified in a straightforward manner, and there were no relevant inconsistencies within his testimony or contradictions between his testimony and the documents he filed. When I asked about parts of his narrative attached to his BOC, the claimant provided details of what he himself had witnessed, without embellishment. Also, he did not hesitate in indicating when he had not personally witnessed something, but believed it to be true because the information was given to him by someone else. For example, he described in detail the day he was taken by police officers to his friend’s apartment for which he had co-signed. He witnessed two of the police officers entering the apartment, having been told to wait outside with other police, and he witnessed later the two officers exiting with his friend’s confiscated computer and records. The police told him what they found and viewed, and I, like the claimant, can see no reason why the police would have lied about that given the context of that day.
[20] The documentary evidence filed by the claimant[4] supports the allegations as set out above. After reviewing the documents, I have no reasons to doubt their authenticity: 1) the portrait of his college class of 2010-2011 corroborates the claimant’ s description of attending college with his friend; 2) the sworn statements by the claimant’s father and brother corroborate the relationship that the claimant had with his friend, the friend’s assistance in the claimant’s brother’s campaign, and the friend’s support of the SAD (Mann); 3) the police beating was corroborated by his father’s statement, and by a medical document from a hospital where he stayed for three days after being released from the police station; 4) the letter from a lawyer confirms that he advised the claimant to move away because the police would continued to target him as long as they were unable to locate his friend; and 5) the ongoing inquiries by the police are corroborated by the claimant’ s father’ s sworn statement.
[21] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. (Maldonado [1980]
2.F.C. 302 (C.A.)) Given this presumption and the lack of relevant inconsistencies in the evidence provided by the claimant, I find, on a balance of probabilities, that 1) the claimant had a friend from college who was a member of the SAD (Mann) party; 2) the claimant entered into a rental agreement as a co-signor for the friend’s apartment, and 3) the friend was wanted by the Punjab police who found evidence in the apartment of the friend’s pro-Khalistan, anti-government advocacy; 4) the Punjab police believed that the friend was operating in an illegal and anti-government movement, and that the claimant was also involved; 5) the police directed the claimant to locate his friend, 6) when the claimant was unsuccessful, the police detained and beat the claimant in the police station, trying to force the claimant to reveal information about the claimant’s and his friend’s anti-government activities and his friend’s whereabouts; 7) the police threatened the claimant with more violence if he did not continue to assist in locating his friend; and 8) the police continue to inquire about the whereabouts of the claimant, as recently as
XXXX, 2021, and have told his father that the claimant may be charged with the same offences as his friend.
[22] Finally, I find that the claimant fled from Punjab, hid in Delhi and escaped to Canada to avoid being apprehended by the police who continue to look for him there.
[23] I find that the claimant has established his subjective fear of the police.
Nexus and Objective Fear Established
[24] The evidence demonstrates that the Punjab police are targeting the claimant because they perceive the claimant to be a sympathizer with the anti-government, Khalistan movement. The reasons for this perception are that the police learned from the friend’s landlord that the claimant was a co-signor of the friend’s apartment, and that the claimant was closely associated with his friend. Then the police found files and recordings in his friend’s apartment which confirmed that his friend is an anti-government activist and a supporter of the Khalistan movement. I note that the police found no direct proof that the claimant himself was actively campaigning for the Khalistan movement or involved in anti-government activities, as they found for the friend, but there was circumstantial evidence, particularly the claimant being a co-signor and having keys to the apartment where the police found the anti-government materials. The police threatened to arrest the claimant unless he located his friend for them. On a balance of probabilities, I find that the police perceive the claimant as an anti-government, pro-Khalistan sympathizer and supporter, because of his close association with his friend and because of his renting the apartment with his friend where the materials were found. I find, on a balance of probabilities, that the risk described by the claimant constitutes persecution based on imputed political opinion as prescribed in section 96 of the IRPA.
[25] The claimant did not believe that his friend used any weapons, and, for that reason, he tried to convince the police during their interrogation of him that they were wrong to accuse his friend of illegal activities. I recognize that the claimant never alleged that the evidence the police found regarding his friend’s activism demonstrated that his friend was promoting violence to attain a separate state for Punjab, but the objective documentary evidence makes clear that the police are known to impute a violent militancy on supporters of the Khalistan movement, even without proof that those accused persons are promoting anything beyond a legal, peaceful movement. Item 12.4 of the NDP[5] confirms that the police have historically monitored, detained and tortured Sikhs believed to be supporters of the Khalistan separatist movement, even when there exists no evidence of violent militancy. There has been a pattern of the police falsely charging Sikhs as “dangerous terrorists” to justify the illegitimate arrest of young Sikh men who are perceived as political opponents to the ruling state party. In 2019, the Indian Parliament passed an amendment to the Unlawful Activities Prevention Act which allows authorities to designate individuals as terrorists and detain them for up to 180 days without charge,[6] a particularly useful tool when police exploit it to intimidate opponents of the ruling party.
[26] According to a report in the NDP from the Asian Centre for Human Rights, police throughout India have extrajudicially detained, tortured and killed individuals, fabricating evidence of encounters that the police hope will discourage investigations. The report contains dozens of references to extrajudicial killings in Punjab state alone. The report also confirms that the police have been known to target those supporting a Sikh activist, like family members.[7] The NDP contains many more recent documents which confirm that extrajudicial police arrests, beatings and torture of detained persons, as well as encounter killings continue with impunity for the police involved.[8]
[27] I find that the documentary country evidence described above establishes objective corroboration for the claimant’s subjective fear of being targeted by the police because of his association and support for his friend, an activist in the Khalistan movement. I find, on a balance of probabilities, that the claimant has a well-founded fear of persecution because of his imputed political opinion.
State Protection
[28] There is a presumption that states can protect their own citizens, but the agents of persecution in this case, the Punjab police, are part of the state. I therefore find that it would have been objectively unreasonable for the claimant to seek protection from the state in Punjab given his justified fear of the police there. As for seeking the protection of the government in a place in India outside of Punjab should the claimant return to India and relocate to an IFA, I find that it would also be unsafe for him to seek protection in states outside of Punjab. This is because police departments in each state are connected to each other, as discussed below, and thus the claimant would risk discovery by the Punjab police if he were to seek protection from police in any other state. The claimant has rebutted the presumption of state protection in Punjab, as well as in the rest of India.
Internal flight alternative
[29] Refugee protection is provided to claimants in Canada who face risks pursuant to section 96 or 97 of IRPA, upon return to their country of citizenship – risks for which there must be no reasonable safe harbour anywhere reasonable in that country.[9] At the commencement of the hearing, I identified Delhi and Mumbai as possible IFAs.
[30] For a refugee claim to succeed, the claimant has the burden to establish that there is no viable IFA within their country of nationality. The test for an IFA was articulated by the Federal Court of Appeal in Rasaratnam.[10] For a claim to succeed, a claimant has the onus to satisfy the panel, on a balance of probabilities, that a proposed IFA:
1) is not safe from a serious possibility of persecution, or likelihood of risk to life or cruel and unusual treatment; or
2) is objectively unreasonable or unduly harsh in all the circumstances for the claimant to live there.
[31] The claimant fears that even if he relocated to Delhi or Mumbai, or anywhere else in India, he would be found, detained and seriously harmed by the Punjab police because of his imputed political opinion as a Khalistani sympathizer, and because of his friend’s proven history as a Khalistani, pro-separatist, anti-government activist. In this case, I find that the claimant has established that he faces a serious possibility of persecution anywhere in India, and therefore, there is no IFA for him. My reasoning follows.
First Prong of the Test: Safety
[32] Regarding the first prong of the test, the claimant has established, on a balance of probabilities, that the agents of harm, (the Punjab police), have both 1) the motive; and 2) the means to find and to persecute or harm him if he were to relocate in the proposed IFAs.
Motive of the Agents of Harm to Search for Claimant
[33] Regarding the question of whether the police have the motive to search for the claimant throughout India, it is important to bear in mind that a search would be electronic in nature, and not a scenario of officers and agents physically travelling the vast and densely populated country, hoping to find clues of the claimant’s whereabouts. It is the claimant’s position that if he were to return to India, he would continually need to provide his personal information to various authorities who routinely require verification of a person’s trustworthiness in the context of renting housing, finding employment or using financial institutions. It would just be a matter of time, then, before the Punjab police would be alerted to the claimant’s whereabouts by someone verifying the claimant’s status through the national police database, the Crime and Criminal Tracking Network and Systems (CCTNS), a system that connects police stations across the country, integrating data.[11] The question about the Punjab police, then, is whether they had the motivation to place the claimant’ s name and other particulars in the CCTNS.
[34] The claimant was detained, threatened, intimidated and beaten by police who were trying to force the claimant to reveal information about his friend’ s activities, and to reveal the whereabouts of his friend. The police had found proof in the apartment for which he was a co signor that his friend was involved in the Khalistan movement, and, as I found above, they therefore believed the friend to be a Khalistani militant with the claimant having some role in his activities. Given that the allegations by the police against the claimant and his friend appear to involve allegations of terrorism, given that the claimant contravened the Punjab police’s specific instructions and left the state, and given that the police have been looking for the claimant but have not been able to locate him, I find that it is more likely than not that the police have been motivated to place the claimant’ s name in the CCTNS, indicating that he is a suspect and that his location is unknown. There have been decisions made by other members at the Refugee Protection Division, who have inferred from the lack of proof of a First Information Report (an “FIR”) in police records that a claimant would not be included in the CCTNS. I make no such adverse inference in this case because, according to the NDP, while the CCTNS contains 70 million records, only 25 million are FIRs, meaning that the majority of the records in the CCTNS are not FIRs.[12]
Means of the Agents of Harm to Locate Claimant
[35] The NDP describes a tenant registration system that is mandatory[13] for landlords to use when renting to a new tenant. It is used in tandem with the CCTNS to check on the tenant’s background, particularly to see if they have a criminal record or are a fugitive from another state.[14] The objective evidence indicates that it is not clear about how many landlords and police stations in India faithfully and effectively comply with using the tenant registration system. However, according to Item 14.8 of the NDP, it is an easy and accessible procedure either online or on paper form, whereby the landlord must input, amongst other things, the names, dates of birth and previous addresses of the persons to whom they rent. Also, not complying with the requirement to register can result in a police prosecution against a landlord.[15] On a balance of probabilities, then, I find that many landlords do comply.
[36] The claimant’s evidence is that he would need to rent housing in Delhi or Mumbai if he were to relocate there, and, in order to do so, would need to show his identity to any landlord. I find that it is likely that he would be expected to provide his Aadhaar card to the landlord from whom he rented upon arriving back in India, and to every landlord of every new rental unit subsequently. The NDP also indicates that 95% of adults in India have an Aadhaar card as a proof of identity.[16] The claimant presented both a passport and his Aadhaar card to Canadian authorities when he filed his claim. Visible on both documents are the claimant’ s name, birth date, and address in Punjab.[17] Even if the claimant provided to a landlord another document to prove his identity, one that did not indicate his Punjab address or date of birth, the landlord would still require that information to complete the form, and the claimant would be required to reveal it. I find, therefore, that the information the new landlord would provide to police in the new location would reveal, if entered into the CCTNS, that the police in Punjab are searching for him.
[37] In terms of the likelihood of the police in the new location taking the new landlord’ s information on the claimant and inputting it into the CCTNS system, I find that it is very high, particularly given that the claimant’s previous address is in Punjab, a state with a history of militancy as discussed above. According to a very recent RIR in the NDP, CCTNS is deployed in 95 percent of the police stations in the country, with connectivity available in 97 percent of the police stations. By the end of 2020, 81% of data from police stations across India was synced with CCTNS data on the same day as entered. The CCTNS is now the central repository on crime and criminals, with 91% of old data migrated to the platform.[18]
[38] In conclusion, I find, on a balance of probabilities, that the claimant’s landlord in the claimant’s new location would cause a search in the CCTNS to be made for the claimant’s history. Having also found above that the Punjab police are more likely than not to have included the claimant’s personal information on the CCTNS, I therefore find, on a balance of probabilities, that there is a serious risk that the claimant’s new location would be disclosed to the Punjab police through the tenant registration system. Once the police in Punjab are advised of the claimant’ s relocation, they are likely to want to have him returned to continue trying to get information from him on his friend and the Khalistan movement’ s activities in their area. This establishes a serious possibility of persecution by the police anywhere in India based on an imputed political opinion.
Second Prong of the IFA Test: Reasonableness
[39] Having found that the first prong of the test was met, namely, that an IFA would not be safe for the claimant, there is no need for me to consider the reasonableness of an IFA
Conclusion
[40] In light of the preceding, I conclude that the claimant is a convention refugee, pursuant to section 96 of the IRPA. Accordingly, I accept his claim.
(signed) Mary Truemner
May 2, 2022
[1] Exhibit 3, Item 4.9, Response to Information Request (“RIR”) #IND106097.E, “India: Treatment of political activists and members of opposition parties in Punjab; treatment of perceived supporters of Sikh militancy by authorities (2017-April 2018)”, 14 June 2018.
[2] Exhibit 3, Item 4.4, RIR # IND200258.E, “The Shiromani Akali Dai (Amritsar) (SAD(A)) [Shiromani Akali Dai (Mann); SAD(M); SAD(Amritsar); Shiromani Akali Dai (Amritsar) (Simranjit Singh Mann)], including origin, structure, leadership, objectives, and activities; requirements and procedures”, 3 June 2020.
[3] Exhibit 3, ltem14.9, RIR # IND200495.E, “Exit controls and security measures for Indian citizens leaving the country, including use of computerized identity verification; information sharing between police, security and airport officials, including access to the Crime and Criminal Tracking Network and Systems (CCTNS); travel restrictions placed upon persons of interest to authorities; instances where persons wanted by the police, including those with suspected ties to militants, were able to leave the country (2018-Febmary 2021)”, 2 March 2021.
[4] Exhibit 5.
[5] Exhibit 3, Item 12.4, RlR # IND105132.E, “Treatment of Sikhs in Punjab (2013-April 2015)”, 12 May 2015.
[6] Exhibit 3, Item 2.1, India: Country Reports on Human Rights Practices for 2020, United States, Department of State, 30 March 2021.
[7] Exhibit 3, Item 10.8, “The State of Encounter Killings in India: Target, Detain, Torture, Execute,” Asian Centre for Human Rights. November 2018.
[8] Exhibit 3, See for examples: Item 2.1, “India. Country Reports on Human Rights Practices for 2020″, United States, Department of State, 30 March 2021; Item 2.2,”India. Amnesty International Report 2020/21: The State of the World’s Human Rights,” 7 April 2021; Item 2.3, “India. World Report 2021: Events of 2020,” Human Rights Watch, January 2021.
[9] Thirunavukkarasu v Canada (MEI), 1993 CanLII 3011 (FCA).
[10] Rasaratnam v Canada (MEI), [1992] 1 FC 706 (FCA)
[11] Exhibit 3, Item 10.3: Police Organisation in India. Commonwealth Human Rights Initiative. GP Joshi. 25 December 2015.
[12] Exhibit 3, Item 10.6, RIR # IND106120.E, “Surveillance by state authorities; communication between police offices across the country, including use of the Crime and Criminal Tracking Network and Systems (CCTNS); categories of persons that may be included in police databases…”, 25 June 2018.
[13] Exhibit 3, Item 14.8, RIR #IND106289.E, “Requirements and procedures for tenant registration (or tenant verification), including implementation, particularly in Delhi, Mumbai, Kolkata and Bengaluru (2016-May 2019), 14 May 2019.
[14] Exhibit 3, Item 10.13, RIR #IND200626.E, “Police databases and criminal tracking, particularly the Crime and Criminal Tracking Network and Systems (CCTNS); relationship with the Aadhaar and tenant verification systems; capacity to track persons through these systems (2019- May 2021)”, 26 May 2021.
[15] Exhibit 3, Item 14.8, RIR #IND106289.E, “Requirements and procedures for tenant registration (or tenant verification), including implementation, particularly in Delhi, Mumbai, Kolkata and Bengaluru (2016-May 2019), 14 May 2019.
[16] Exhibit 3, Item 3.16, RIR# IND200627.E ,”The Aadhaar card, including requirements and procedures to obtain; purpose and uses of the card; relationship with tenant verification and criminal tracking systems; whether authorities use Aadhaar registration to track individuals across the … Immigration and Refugee Board of Canada,” 25 May 2021.
[17] Exhibit 1
[18] Exhibit 3, Item 10.13, RIR # IND200626.E, “Police databases and criminal tracking, particularly the Crime and Criminal Tracking Network and Systems (CCTNS); relationship with the Aadhaar and tenant verification systems; capacity to track persons through these systems (2019-May 2021). 26 May 2021.