Citation: 2022 RLLR 19
Tribunal: Refugee Protection Division
Date of Decision: September 27, 2022
Panel: Olukunle Ojeleye
Counsel for the Claimant(s): Roberto Colavecchio
Country: India
RPD Number: VC2-00259
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the refugee claim of XXXX XXXX (the “claimant”), a citizen of India. He is seeking protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).[i]
Administrative Matters
[2] The Minister intervened regarding credibility, identity and program integrity on April 05, 2019.
ALLEGATIONS
[3] The allegations are fully set out in the claimant’s Basis of Claim form and his narrative. In summary, the claimant alleges that that he will be harmed and may be killed by a Youth Congress member, XXXX XXXX, whose sister the claimant got pregnant out of wedlock, and the family considered their honour tarnished by the incident. Furthermore, he alleges fear of the Punjabi police acting at the behest of XXXX XXXX.
[4] The claimant met a lady by the name of XXXX XXXX XXXX during his 11th grade schooling. They became attracted to each other and started meeting even after leaving the school. While the claimant was away studying in Singapore, he kept in contact with XXXX. On return to India in XXXX 2016, the claimant and XXXX continued their relationship and began meeting at one of the motels in secret.
[5] In XXXX 2016, XXXX became pregnant. She told her mother of her relationship with the claimant, and her mother took her to a doctor for abortion. When XXXX father and XXXX (the brother) became aware of what had happened, XXXX went with some of his friends to look for the claimant at home, but he was absent.
[6] On XXXX XXXX, 2016, while the claimant was returning home in the evening, he was accosted by two men who were instructed by XXXX to kill him. The claimant was beaten with hockey sticks and an acid was used to remove the tattoo of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The claimant was left for dead and passerby that saw him called the claimant’s father who came and took him to the doctor for treatment.
[7] After being discharged from hospital, the claimant was taken by his father to a friend’s place in Ludhiana because XXXX had returned with some men to the claimant’s residence threatening to kill him for tarnishing the reputation of his family, socially and politically.
[8] The claimant’s friend in Ludhiana advised him that he could not stay in hiding all his life and that relocation within India would be difficult. When he was also advised by a lawyer that he should leave the country to avoid honour killing, the claimant’s friend got him an agent to help facilitate leaving India.
[9] In XXXX 2017, the agent took the claimant to New Delhi and kept him in hiding. The agent later misplaced the claimant’s passport but promised he would get him out of India. On XXXX XXXX 2017, the agent put the claimant on a flight to Canada on a passport with the name of XXXX XXXX. On arrival in Canada, the claimant was met at Vancouver Airport by the agent’s representative who took the false passport from him after the claimant had cleared customs. The claimant was thereafter introduced to someone else who promised to find him work as well as arrange a permanent residency in Canada.
[10] When the claimant tried to stay legally in Canada through work and explained his circumstances as well as fear of honour killing to his employer, he was advised to seek legal support. The claimant thereafter made an application for refugee protection.
DETERMINATION
[11] The panel finds that the claimant is a person in need of protection, pursuant to section 97(1)(b) of the IRPA, because, on a balance of probabilities, he would be subjected personally to a risk to his life or to a risk of cruel and unusual treatment or punishment, should he return to India.
ANALYSIS
Minister’s Intervention
[12] The Minister of Immigration, Refugees, and Citizenship Canada (the Minister) intervened in-writing in this matter on April 05, 2019.[ii]
[13] The Minister noted that the claimant only had the following identity documents with him when he made his refugee claim: a unique identification authority of India card; a card from the electoral commission of India; a Punjab senior secondary school certificate; and a birth certificate that had a translated photocopy without the translator’s attestation. The Minister therefore submitted that the claimant has not proven his identity having failed to produce a copy of his passport, or a copy of the passport as well as other travel documents with which he travelled into Canada under a false identity of Gurpreet Singh.
[14] On May 16, 2022, as part of disclosures made by the claimant, he submitted a copy of his Indian passport to verify his identity. Same disclosure was made to the Minister and the panel did not receive any objections to the disclosure from the Minister.
Identity
[15] The claimant’s identity as a national of India has been established on a balance of probabilities by the sworn statement in his BOC form,[iii] his testimony, his XXXX card and school certificate,[iv] as well as a copy of his Indian passport.[v]
Nexus
[16] The panel finds that the claimant has not established a nexus with a Convention ground. The claimant’s fears do not arise from his political opinion, religion, race or nationality or membership in a particular social group.
[17] The claimant is a victim of crime or personal vendetta. Those who targeted the claimant have done so out of revenge to teach his family a lesson, while the Punjab police have acted against the claimant at the behest of the agents of harm. The Court has held that victims of crime, corruption or vendettas, including blood feuds generally cannot establish a link between their fear of persecution and one of the five Convention grounds.[vi] The panel finds that there is nothing particular about this case which takes it outside these general principles.
[18] The principal claimant fears future criminality which is not connected to one of the five Convention grounds. The panel therefore assessed his claim pursuant to section 97(1) of IRPA.
Credibility
[19] When a Claimant swears to the truth of allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.[vii] However, this presumption does not extend to inferences, which are conclusions from facts, or speculation, which are allegations without any evidentiary basis.
[20] In assessing the Claimant’s credibility, the Panel has considered potential difficulties that the Claimant may face in giving his testimony including:
- the impact of trauma,
- cultural and social factors,
- the Claimant’s age and educational background,
- the unfamiliar hearing environment and the high-stakes nature of refugee proceedings.
[21] On a balance of probabilities, the panel accepts the claimant’s allegations as credible. There were no relevant inconsistencies in his testimony or contradictions between his testimony and the other evidence before the panel which have not been satisfactorily explained.
[22] The claimant submitted numerous documents to substantiate his claim.[viii] These include:
- An affidavit from the claimant’s parents explaining that XXXX XXXX with unknown members of his party, and the police, have kept coming to them seeking the claimant’s whereabout. The affidavit further stated that the efforts by the claimant’s parents to reconcile with XXXX XXXX and family have been a failure.
- Affidavit from the claimant’s friend in Ludhiana where he was taken by his father after receiving medical treatment on XXXX XXXX 2016.
- A medical report from XXXX XXXX that confirmed the injury the claimant received on XXXX XXXX 2016 – “hand burnt with acid, injury on forehead and face swollen” – and the treatment he was provided.
- Various media articles as objective evidence.
Upon a review of these documents, the panel finds no reason to doubt their authenticity. The panel places significant weight on them as having probative values in substantiating the claimant’s allegations.
[23] The panel notes that the claimant first arrived in Canada on XXXX XXXX, 2017. He was asked why he did not make a claim then. The claimant testified that he knew very little about Canada and the immigration process. He stated that the agent that got him his visa arranged for someone to meet him in Vancouver who took the passport and documents he travelled with from him, and also arranged for him to start working at a company in Vancouver. He stated that he was told a permanent residence would be arranged for him. He testified that in XXXX 2018 when he asked his supervisor about his application for a permanent residence, and his passport was requested, he narrated how he came into Canada and was at that point advised that he had no legal status in Canada and should go to Montreal to seek advise.
[24] The panel finds the claimant’s explanation regarding his delay in claiming to be reasonable. The panel does not draw a negative inference regarding claimant’s credibility.
Forward Facing Risk
[25] The panel finds on a balance of probabilities that the claimant has been targeted by the Punjabi police at the behest of the family of XXXX XXXX XXXX who feels dishonored by the claimant’s pre-marital relationship with their daughter that resulted in an aborted pregnancy.
[26] According to Subsection 97(1)(b) of the IRPA, a person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
- to a risk to their life or to a risk of cruel and unusual treatment or punishment if
- the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
- the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
- the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
- the risk is not caused by the inability of that country to provide adequate health or medical care.[ix]
[27] The risk to life, a risk of cruel and unusual treatment or punishment, or death faced by the claimants is captured by subsection 97(1)(b) of the IRPA.
[28] The initial basis for the risk arose from the claimant’s pre-marital relationship family with XXXX XXXX XXXX whose family seek revenge against the claimant for dishonoring them.
[29] The claimant has established on a balance of probability that he is personally at risk. The panel finds that the assault on the claimant in XXXX 2016 by two men who were instructed by XXXX to kill him, and the application of acid on the claimant’s hand XXXX XXXX XXXX XXXX XXXX XXXX XXXX, indicates a high degree of the risk identified above.
[30] Objective evidence corroborates the claimant’s subjective fear of honor killing. It is reported that “‘Honour killings’ do take place in India in cases of alleged adultery, premarital relationships, rape or falling in love against family wishes”.[x] Between 2014 and 2016, India’s Supreme Court registered 288 cases of such killings.[xi] A report by the Law Commission of India indicates that honour-based violence are under-reported, and honour-related murders are often reported as suicides or as accidents. It is reported that the harmful traditional practise has remained persistent in the country.[xii]
[31] Further objective evidence supports the claimant’s fear of how the Indian police treat suspects. The prevalence of corruption within the Indian police and the judicial system is highlighted with bribery reported to be prevalent.[xiii] It is reported that unwarranted arrests and maltreatment during police detentions are regular occurrences in India.[xiv] All this documentary evidence serves as an objective basis for the claimant’s fear and corroborates his allegations.
[32] The panel finds that risk is not faced generally by other individuals in or from that country, as per section (97)(1)(b)(ii). The panel finds that the claimant has been targeted by XXXX XXXX XXXX family who has blamed the claimant for tarnishing the reputation of their family, socially and politically. They have gone further by influencing the Punjab police to seek the whereabout of the claimant. The panel finds that these circumstances change the nature of the claimant’s risk from a generalized risk of indiscriminate crime or police harassment to a non-generalized risk particular to him.
[33] Likewise, the panel finds that the risk faced by the claimant is neither inherent or incidental to lawful sanctions, as per section (97)(1)(b)(iii) since there is no evidence that he has committed a crime for which he is legally wanted, nor the risk the claimant faces caused by the inability of the country of reference to provide adequate health or medical care, as per section (97)(1)(b)(iv).
[34] Based on the evidence before the panel, as well as the credible evidence of the claimant that he has been targeted by the police at the behest of XXXX brother and father, the panel finds that the claimant has established the objective basis of his claim and has further established on a balance of probabilities, that the risk he faces is one that is personal to him, and it is not a risk faced generally by the population of India.
State Protection
[35] The panel finds there is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection.
[36] States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.[xv]
[37] The claimant testified that the Punjabi police have been to his parents’ home to inquire about his whereabouts. He testified that he cannot live anywhere in India safely due to the quest by the family of XXXX to redeem their family dignity by killing him for impregnating their daughter, and their involvement of the Punjabi police in seeking his whereabouts. The claimant’s parents attested in an affidavit, that the Punjab police are seeking the whereabout of the claimant under the influence of XXXX family. The panel has no evidence to indicate that the police search for the claimant, is consequent to his being charged with an offence relating to his relationship with XXXX.
[38] Objective evidence indicates that the police, just like the judicial system, is riddled with corruption, with bribes and irregular payments exchanging hands in return for influencing the redress system and obtaining favourable court decisions.[xvi] It is reported that widespread human right abuses are conducted with impunity by the police. It is further reported these abuses include arbitrary detention, torture, kidnappings, and extra-judicial killings.[xvii]
[39] Given the claimant’s testimony, and the attestation from his parent, the panel concludes that on a balance of probabilities, the claimant faces persecution in the hands of the Punjabi police as agents of the state, at the behest of the family of XXXX XXXX XXXX.
[40] The panel finds that the presumption of state protection is rebutted in this case. Since the state through the Punjabi police is an agent of persecution, the panel finds that it would be objectively unreasonable for the claimant to seek the protection of the state considering his particular circumstances.
Internal Flight Alternative
[41] For a viable IFA to exist, two things must be the case. First, the claimants must not face a serious possibility of persecution or, on a balance of probabilities, a danger of torture, risk to life or risk of cruel and unusual punishment in the proposed IFA location. Second, it must not be objectively unreasonable in all the circumstances for the claimant to seek refuge there. Once an IFA has been proposed, the onus is on the claimant to establish that the proposed IFA is not viable. The standard of objective unreasonableness for a proposed IFA is high and requires proof of adverse conditions which would jeopardize the life and safety of the claimant in travelling to and in living in the proposed IFA location.[xviii]
[42] The panel considered whether a viable internal flight alternative exists for the claimant in Dharamshala, Jaipur and New Delhi.
[43] The panel finds that the claimant has established that on a balance of probabilities, he faces serious possibility of persecution in the proposed IFA.
First Prong: Is it safe for the claimant to relocate in India?
[44] The claimant was asked if he has been to Dharamshala, Jaipur or New Delhi before. He testified that he had been to New Delhi when the agent facilitated his exit from India. He was asked if either of the IFAs would be a safe location for him. The claimant testified that he fears that the XXXX family and the police will find him anywhere in India.
[45] To assess whether the claimant would be at risk of harm in the IFA location, the panel considered whether the evidence indicates that the family of XXXX XXXX XXXX have the motivation and interest to continue pursuing the claimant.
[46] The claimant was asked by why he believes that the XXXX brother and family would still be interested in harming him after more than three years, he testified that his parents told him the agents of harm went looking for him about three months ago. The claimant testified that XXXX family are politically active and influential. The claimant did not provide any evidence to establish how XXXX family would be able to influence the Youth Congress and the Congress Party in Dharamshala, Jaipur or New Delhi to harm him.
[47] The panel further considered whether the agents of persecution have the means to locate the claimant. The claimant testified that if he were to move to any of the proposed IFAs, he would have to submit identifications before he is able to rent an accommodation and that such identification would be subjected to verification with the police in Punjab. He further testified that as soon as the local police receives information about his whereabout, XXXX family would be aware of his location. He stated that XXXX family would then utilise their connections with the Youth Congress and the National Congress Party to influence the police to arrest the claimant wherever he is.
[48] The panel accepts the claimant’s allegations that he has been targeted by Punjabi police at the behest of XXXX family. Although the claimant did not provide any evidence to establish that he is legally and officially wanted by the police, the panel is mindful of objective evidence that “police authorities in India are able to track and locate persons of interest, depending on the heinousness of the crime and the pressure received from political authorities”.[xix] It is reported that the police in India are susceptible to endemic corruption which results in the undue influence of the police by those able to afford bribes that may be demanded.[xx] Even though the tenant registration system is noted as limited in its effectiveness, it is reported that it can be used to verify the history of any tenant “whether the person had any criminal involvement or absconding from other states”[xxi].
[49] Based on the testimony that XXXX family together have been seeking the claimant’s whereabout to redeem the perceived tarnished image of their family, the objective evidence already cited about honor killings in India, and the allegations that the Punjab police are seeking to know the claimant’s whereabout at the behest of XXXX family, the panel finds that on a balance of probabilities, XXXX family have sufficient interest and motivation to continue to seek the claimant’s whereabout in India.
[50] Furthermore, the panel finds on a balance of probabilities that if the claimant’s identity is verified through the tenant registration system with the Punjab police, the Punjab police under obligation to XXXX family may divulge knowledge of the claimant’s location in India, thereby providing a means for XXXX family as agents of persecution to locate and harm the claimant in the proposed IFAs.
[51] Based on the evidence before it, the panel finds that the claimant has provided sufficient evidence to demonstrate that the agents of persecution are motivated and have the capacity to locate and harm him in the proposed IFA. Accordingly, the panel finds that the claimant does face a serious possibility of persecution in India.
[52] Given the findings on the first prong of the IFA test, the panel finds that there is no viable internal flight alternative for the claimant within his country, and there is no need to examine the second prong of the IFA test.
CONCLUSION
[53] Considering the preceding, the panel concludes that the claimant has established that he is a person in need of protection, pursuant to section 97(1)(b) of the IRPA. The panel therefore accepts his claim.
(signed) Olukunle Ojeleye
September 27, 2022
[i] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[ii] Exhibit 4.
[iii] Exhibit 2.
[iv] Exhibit 1.
[v] Exhibit 5.
[vi] Kang, Hardip Kaur v. M.C.I. (F.C., no. IMM-775-05), Martineau, August 17, 2005; 2005 FC 1128, at
para 10.
[vii] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.)
[viii] Exhibits 5.
[ix] Immigration and Refugee Protection Act, S.C. 2001.
[x] Exhibit 3, National Documentation Package, India, 30 June 2022, item 1.5. DFAT Country Information Report: India. Australia. Department of Foreign Affairs and Trade. 10 December 2020.
[xi] Exhibit 3, National Documentation Package, India, 30 June 2022, tab 5.10: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016-May 2020). Immigration and Refugee Board of Canada. 4 June 2020. IND200256.E..
[xii] Exhibit 3, National Documentation Package, India, 30 June 2022, tab 2.11: Compilation on India. Office of the United Nations High Commissioner for Human Rights. 22 February 2017. A/HRC/WG.6/27/IND/2.
[xiii] Exhibit 3, National Documentation Package, India, 30 June 2022, item 1.5.
[xiv] Exhibit 3, National Documentation Package, India, 30 June 2022, item 10.10. Country Policy and Information Note. India: Actors of Protection. Version 1.0. United Kingdom. Home Office. January 2019.
[xv] Ward [1993] 2 S.C.R. 689
[xvi] Ibid
[xvii] Exhibit 3, National Documentation Package, India, 30 June 2022, tab 10.10: Country Policy and Information Note. India: Actors of Protection. Version 1.0. United Kingdom. Home Office. January 2019.
[xviii] Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164, Court of Appeal.
[xix] Exhibit 3, National Documentation Package, India, 30 June 2022, tab 10.13: Databases, including the tenant registration (or tenant verification) system, the Crime and Criminal Tracking Network and Systems (CCTNS), and POLNET; police access to these databases and their ability to track individuals; cases of individuals … Immigration and Refugee Board of Canada. 7 June 2022. IND201036.E..
[xx] Exhibit 3, National Documentation Package, India, 30 June 2022, item 1.5. DFAT Country Information Report: India. Australia. Department of Foreign Affairs and Trade. 10 December 2020.
[xxi] Ibid.