Citation: 2022 RLLR 21
Tribunal: Refugee Protection Division
Date of Decision: July 27, 2022
Panel: Alannah Hatch
Counsel for the Claimant(s): Gaurav Sharma
Country: India
RPD Number: VC2-00904
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
REASONS FOR DECISION
[1] This is the decision of the Refugee Protection Division in the claims of XXXX XXXX (the “principal claimant”), XXXX XXXX (the “associate claimant”) and XXXX XXXX (the “minor claimant”). The claimants are citizens of India and are seeking refugee protection pursuant to subsections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).
[2] The principal claimant was appointed the Designated Representative for the minor claimant at the outset of the hearing.
ALLEGATIONS
[3] The details of the claimants’ allegations are fully set out in the Basis of Claim (BOC) forms and were supplemented by a BOC addendum and oral testimony.[1] In summary, the claimants fear persecution in India from goons associated with the Congress political party because the principal claimant is a supporter of the XXXX XXXX XXXX XXXX XXXX political party. In addition, the claimants fear the police because they have accused the principal claimant of financially supporting terrorists and because they believe the police work at the behest of the Congress party.
DETERMINATION
[4] I find that the claimants are Convention refugees as they have a well-founded fear of persecution for at least one Convention ground, namely membership in a particular social group, as the claimants are members of the “Backward Caste“ XXXX, also known as Dalits. I therefore have not assessed the claimants’ allegations regarding their fears of Congress party goons or the police.
ANALYSIS
Identity
[5] The Claimants’ identities as nationals of India are established on a balance of probabilities by the sworn statements in their BOC forms and the copies of their Republic of India passports.[2]
Nexus
[6] I find that there is a nexus between the claimants’ allegations and the Convention ground of membership in a particular social group because the claimants are members of the XXXX Caste, or Dalits.
Credibility
[7] The Federal Court has held in Maldonado that when a claimant swears to the truth of certain allegations, it creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.[3] The presumption of truthfulness does not apply to inferences or speculation.
[8] In this case, I have no reason to doubt the truthfulness of the claimants. The principal claimant testified in a straightforward manner and gave detailed answers to my questions about how he was treated as a Dalit in his village of XXXX, Punjab. The principal claimant provided spontaneous testimony about Dalits being forbidden to build a sports field in XXXX solely because they were Dalit, and how Dalits were not allowed to mingle with others in the community during celebrations because they were Dalit. Both the associate claimant and principal claimant testified about how they were treated at school due to being Dalit. The associate claimant testified other students refused to play with her and she was treated differently by teachers because she was Dalit. In addition, the claimants provided corroborating evidence including a “Backward Caste Certificate for the principal claimant’s father, indicating he is from the XXXX XXXX.[4]
[9] I find that the claimants have established on a balance of probabilities that they are Dalits. I asked the principal claimant why he did not have a Certificate in his own name, and he testified that they issued only one certificate for the family, and that both of his parents were of the XXXX XXXX. The associate claimant testified she did not have a certificate; however, I accept on a balance of probabilities that she is of the same XXXX XXXX based on her credible testimony.
Well-Founded Fear of Persecution and Risk of Harm
[10] I find that the claimants’ subjective fear is objectively well-founded.
[11] Regarding Dalits, Minority Rights Group International states the following:
Amidst India’s cultural traditions is a rigid caste structure, a continuing symbol of identification and social stratification. 16.6 per cent of the total population of India consists of the scheduled castes which includes ‘Dalits’ also known as Harijans, or ‘Untouchables’. The Indian Constitution requires the government to define a list or schedule of the lowest castes in need of compensatory programmes…
Dalits in rural areas suffer from entrenched caste discrimination, including ‘untouchability’, violence and harassment. Violence against Dalits is widespread, driven by the persistent effects of India’s caste system and the lack of justice for victims.
The constitutionally guaranteed affirmative action policies have had some positive impact in increasing the representation of Dalits in educational institutions, governmental jobs and elected positions. Notwithstanding this improvement, Dalits continue to remain the most underprivileged class of Indian society: the stigma they face remains evident to this day. Dalits in general continue to survive under inhumane, degrading conditions.[5]
[12] The International Dalit Solidarity Network states:
[u]ntouchability practices in India remain widespread in both urban and rural settings. These include dominant castes not touching Dalits, not letting them use the same mugs, utensils etc., not entering Dalit houses, not allowing their children to play with Dalits or to be in a relationship with a Dalit. There are thousands of variations of untouchability practices and the severity and prevalence vary depending on location.[6]
[13] The Navsarjan Trust also states that untouchability “is present in nearly every sphere of life and practiced in an infinite number of forms”. Examples include Dalits being refused entry to barber shops or temples, being forbidden to use wells, and Dalit children may be asked to clean the toilets and to eat separately at schools.[7]
[14] The treatment of Dalits has not improved in recent years. The 2015 National Dalit Movement for Justice report[8] provides a list of “new forms of atrocities” against Dalits that were proposed additions to the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 (“POA Act”). At the time, the POA Act had 22 offences listed as atrocities
which include forcing to drink or eat any inedible or obnoxious substance; dumping excreta; parading naked; occupying or cultivating any SC’s land; forcing or intimidating to vote or to vote to a particular candidate; instituting false, malicious or vexatious suit; insulting or intimidating to humiliate in any place within public view; exploiting a woman sexually; and mischief by fire or any explosive substance to cause damage to any SC’s property; etc.
[15] The National Dalit Movement for Justice report, however, states:
numerous new forms of caste-based atrocities have been identified in …(and) perpetrated in both rural and urban regions. These forms are widespread and systemic in nature. The POA Amendments Bill introduced in the Lok Sabha in 2014 and pending before the Parliament has identified and included these additional forms of atrocities.
[16] The new forms of atrocities listed in the POA Amendments Bill are extensive and numerous and divided into five categories. As an example, the first category of proposed amendments to the POA Act are offences related to assault on dignity such as:
putting inedible or obnoxious substance into the mouth; garlanding with footwear, removing clothes, tonsuring of head, removing moustaches, painting face or body; compelling to dispose or carry human or animal carcasses, compelling to dig graves; manual scavenging; disrespecting any late persons held in high esteem to SCs/STs; attempting to promote feelings of enmity and hatred against SCs/ STs; and imposing social or economic boycott.
[17] As the Navsarjan Trust, supra, succinctly relates, the objective evidence unanimously demonstrates that untouchability is “practiced in an infinite number of forms” which are rightfully labelled ‘atrocious’.
[18] I find Dalits face systemic serious violations of their fundamental rights that amount to persecution. I find the claimants have established on a balance of probabilities that they have experienced discrimination since childhood as Dalits. I find there is a serious possibility the claimants will face continued discrimination as Dalits if they were to return to India and that the treatment cumulatively amounts to persecution.
State Protection
[19] There is a presumption that, unless in complete breakdown, states are capable of protecting their citizens. I find that that the claimants have rebutted the presumption of state protection and I find there is no adequate state protection for the claimants.
[20] The Australian DFAT, quoted in the UK Home Office Country Policy and Information Note, reports:
Registration, investigation and prosecution of cases may be affected by bias in relation to the class, caste, ethnicity and religion of a victim or offender. Ethnic and religious minorities complain that police lack sensitivity, suspicions about which sometimes lead to communal violence. Local sources report that police, along with other agencies including the courts, public servants, judiciary and prosecutors, have an inherent bias when dealing with Dalit victims of crime in particular.[9]
[21] In the most recent “Status of Policing in India Report”, 32 percent of those interviewed in conflict-affected regions believed the police would favour an upper caste person in a criminal investigation over a Dalit.[10]
[22] The Australian DFAT country report indicates:
corrupt practices such as facilitation payments and bribes persist in India, with corruption particularly prevalent in the judiciary, police, public services and public procurement sectors…Since 2014, India has consistently ranked low on the (World Justice Project Rule of Law) indices measuring absence of corruption across government. Similarly, India ranked 80 out of 198 countries on Transparency International’s Corruption Index, 2019 (down from 78th place in 2018).[11]
[23] I find that the claimants have established on a balance of probabilities that adequate state protection for them in India is not available because the police, judiciary and other government agencies are reported to be not only corrupt, but also biased against Dalits.
Internal Flight Alternative (IFA)
[24] The Federal Court of Appeal in Rasaratnam,[12] developed a two-prong test when assessing IFA, which entails a consideration of two matters: (1) whether there is a serious possibility of the claimant being persecuted or, on the balance of probabilities, in danger of torture or subjected to a risk to life or cruel and unusual treatment or punishment in the IFA and (2) whether conditions in the IFA are such that it would be reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there. The onus is on the claimants to demonstrate they do not have a viable IFA.
[25] Based on the evidence before me, I find that the claimants would face a serious possibility of persecution throughout India and there is no IFA available to them.
[26] The persecution suffered by Dalits is widespread and systematic and occurs in both rural and urban areas. I note that the objective evidence, reviewed above, regarding the persecutory treatment of Dalits in India is not location specific. While cities provide some limited level of anonymity, social networks would be essential in finding employment and housing in urban areas.[13] Those without social networks would face high discrimination in jobs and housing and often end up at the bottom of the social hierarchy. Although Dalits are reported to have increasing opportunities in cities, including a system of quotas to ensure employment of Dalits in certain sectors such as educational institutions and the federal public service, the quota system can generate hostility towards Dalits.[14] “Severe inequalities persist, however, with Dalits making up a large proportion of those engaged in the urban informal labour sector as domestic workers, rickshaw-pullers, street vendors and other poorly paid sectors”.[15]
[27] There is no evidence before me to indicate that the claimants have a social network in the proposed IFAs of Delhi or Mumbai.
[28] I find that the claimants face a serious possibility of persecution in either Delhi or Mumbai because they are Dalits and as such the IFA fails on the first prong of the Rasaratnam test. I find that there is no IFA available to the claimants.
CONCLUSION
[29] When I consider the claimants’ personal profiles, the objective country evidence, the lack of state protection and lack of a viable IFA, I find that the claimants are Convention refugees and I accept their claims.
(signed) Alannah Hatch
July 27, 2022
[1] Exhibits 2.1, 2.2, 2.3 and 4.
[2] Exhibit 1.
[3] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302
[4] Exhibit 5.
[5] National Documentation Package, India, 30 June 2022, tab 13.10: India. World Directory of Minorities and Indigenous Peoples. Minority Rights Group International. June 2020.
[6] National Documentation Package, India, 30 June 2022, tab 13.4: Treatment of Dalits by society and authorities; availability of state protection (2016-January 2020). Immigration and Refugee Board of Canada. 9 January 2020. IND106277.E.
[7] Ibid.
[8] National Documentation Package, India, 30 June 2022, tab 13.6: Chapter 2: Nature and extent of caste based atrocities. Chapter 3: Response of enforcement authorities: Police. Chapter 4: Response of the Judiciary. Equity Watch 2015: Access to Justice for Dalits in India. Swadhikar – National Dalit Movement for Justice. Nalori Dhammei Chakma. 2015.
[9] 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.
[10] National Documentation Package, India, 30 June 2022, tab 10.11: Status of Policing in India Report, Volume I 2020-2021: Policing in Conflict-Affected Regions. Common Cause; Centre for the Study of Developing Societies. 2021.
[11] National Documentation Package, India, 30 June 2022, tab 1.5: DFAT Country Information Report: India. Australia. Department of Foreign Affairs and Trade. 10 December 2020.
[12] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
[13] National Documentation Package, India, 30 June 2022, tab 13.4: Treatment of Dalits by society and authorities; availability of state protection (2016-January 2020). Immigration and Refugee Board of Canada. 9 January 2020. IND106277.E.
[14] Ibid.
[15] National Documentation Package, India, 30 June 2022, tab 13.10: India. World Directory of Minorities and Indigenous Peoples. Minority Rights Group International. June 2020.