Citation: 2022 RLLR 23
Tribunal: Refugee Protection Division
Date of Decision: November 24, 2022
Panel: Katarina Bogojevic
Counsel for the Claimant(s): Harneet Singh
Country: India
RPD Number: VC2-03987
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 (RPD) in the claim of XXXX, as citizen of India who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.[1]
DETERMINATION
[2] I find that the claimant is a Convention refugee pursuant to section 96 of the Act.
ALLEGATIONS
[3] The claimant’s allegations are contained in his Basis of Claim form.[2] The following is a brief summary:
[4] The claimant is from Kurukshetra, Haryana, where he lived with his mother. His family belongs to the Chamar caste, which is a scheduled caste in India. He met a girl named XXXX at school in 2015 and they began to date. The two kept their relationship a secret because the claimant and his family are from a lower caste than XXXX and her family. The claimant traveled to Canada in XXXX 2017 for school and maintained a long-distance relationship with XXXX. When he returned in XXXX 2017, he decided to surprise XXXX at her workplace, however her brother caught them hugging. XXXX brother and his friends beat the claimant. The next day, the claimant and his mother went to XXXX house to convince her parents to allow the two to marry. Her family verbally and physically abused the claimant and he agreed to stop seeing XXXX.
[5] On XXXX XXXX, 2017, XXXX came to the claimant’s house alleging that her brother had seen intimate photos of them on her phone and that her family had beaten her. Shortly afterwards, XXXX family and the police arrived. When they discovered the claimant and XXXX together, the claimant was taken into custody. While in custody the police beat the claimant and threatened him to stay away from XXXX and her family. The claimant was released from custody on XXXX XXXX, 2017 after his mother paid a bribe. The claimant returned to Canada on XXXX XXXX, 2017.
[6] In XXXX 2018, the claimant received a call from his mother stating that the police were looking for him; XXXX had disappeared, and they suspected that he was involved. At the start of the hearing, the claimant submitted a BOC amendment alleging that the police had started to accuse him of being anti-national and had visited his mother and relatives recently in search of him.
ANALYSIS
Identity
[7] I find that the claimant’s identity as a national of India is established on a balance of probabilities by his sworn testimony and the copy of his Indian passport in evidence.[3]
Nexus
[8] In order to satisfy the definition of a “Convention refugee” found in section 96 of the Act, a claimant must establish that he or she has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group or political opinion.
[9] In this case, I find that the claimant’s allegations have a connection to the Convention on the basis of ethnicity, as the claimant is a member of a scheduled caste, as well as political opinion, with relation to the police’s current allegation that the claimant is anti-national. As such, I have assessed his claim pursuant to section 96 of the Act.
Credibility
[10] When a claimant affirms to tell the truth, this creates a presumption that his allegations are true unless there is reason to doubt their truthfulness. In this case I have found the claimant to be a credible witness. The claimant testified in a consistent and straightforward manner. While there were some concerns with material portions of his evidence at the outset of the hearing, I find that he was able to provide reasonable explanations for my concerns. I did however find the claimant to be speculative with regards to the reasons for the police’s current search for him and their connection to XXXX and her family. I outline my findings in more detail below:
Significant Change to BOC
[11] At the start of the hearing, the claimant submitted an addendum to his BOC stating that he was now wanted by the police because of allegations that he was anti-national. He also submitted affidavits from his mother, neighbour, cousin and uncle alleging that the police had been to their homes recently in search of the claimant and that they had alleged he was anti-national.[4] This is a significant change from the claimant’s original BOC which focused on the threats that he faced due to his relationship with XXXX.
[12] I questioned the claimant about the addendum. He told me that the police first made this accusation to his mother in XXXX 2022. Prior to this, they had approached his cousin in Rajasthan in XXXX 2021 and made the same allegation. The claimant does not know why the police are making this allegation. The police do not provide much detail other than saying that they believe he is an anti-national goon and that he has been instrumental in fights and riots. The claimant is not aware if the police have filed a First Instance Report against him or whether there is a warrant for his arrest.
[13] I asked the claimant why he didn’t update his BOC back in XXXX 2022 when he first found out about the situation. He indicated that he did not know that he had to mention this to his counsel, and thought it was something he would tell me about in the hearing. Given that the claimant testified that he did not mention this to his counsel earlier, I find it reasonable that he was not advised by his counsel that this was something that he should raise as soon as possible.
[14] The claimant provided affidavits from his mother, neighbour, cousin and uncle in support of this allegation.[5] Each affidavit is consistent with the claimant’s allegations, and I have no reason to doubt the credibility of these affidavits, so I give them significant weight in establishing the claimants’ allegations. I also give the claimant’s testimony in this regard significant weight as it was detailed and consistent. He did not exaggerate his claim, but rather confirmed that this was something that came out of the blue and that the police had never previously accused him of being anti-national when they were investigating XXXX disappearance. The claimant was also able to provide specific dates of when the police visited his mother including on Diwali and his birthday.
[15] While I acknowledge that it is unclear why the police are now searching for the claimant on an entirely new basis, it would be speculative of me to set out what a “reasonable agent of persecution” should do. The Federal Court has previously found that it is an error for the Board to “speculate as to the rational actions of reasonable agents of persecution.”[6] Therefore, given all the foregoing and weighing all the evidence before me, I am satisfied on a balance of probabilities that the police are actively searching for the claimant across India and alleging that he is anti-national.
Police Search not connected to XXXX disappearance
[16] The claimant testified that he believed the current search by the police was connected to his relationship with XXXX and instigated by her family. He testified that he has no proof of this but believes that it is a matter of honour for her family and that they manipulating the police with their connections. When asked about XXXX family’s police connections, he stated that his mother learned about them from an unknown person at the jail when she came to bail the claimant out. This individual told his mother that XXXX father was a goon and people were scared of him. With regards to their political connections, he said that his mother told him about them, and she probably learned of them in the news. He did not submit any newspapers on this point into evidence. However, when the claimant spoke to XXXX about her father, she told him that he dealt with properties and never mentioned any illegal activity or connections.
[17] The claimant testified that since his detention, XXXX family had never been to his house looking for him. He explained that people of XXXX caste do not like to associate with people of his caste. He testified that the police were regularly contacting his mother regarding XXXX disappearance, however, he later stated that he assumed this, and his mother hadn’t told him anything to that effect. I find this to be speculative. Based on the evidence before me, there has been no involvement of the police or XXXX family in relation to XXXX disappearance since XXXX 2018. As such, there is insufficient credible evidence before me that the current searches by police are connected in any way to the claimant’s relationship with XXXX or her disappearance.
Documentary Evidence
[18] I have also considered the other documentary evidence the claimant submitted in support of his claim.[7] Of relevance is his Scheduled Caste Certificate, obtained by the claimant’s mother from the Court in Haryana, which confirms that he belongs to the Chamar caste which is a scheduled caste.
Subjective Fear
[19] The claimant testified that when he returned to Canada at the end of 2017, he was still on a study permit. His study permit expired on XXXX XXXX, 2019, and afterwards he applied for a study permit extension which was rejected after 5-6 months. He was not aware at the time that he could apply for refugee protection. He testified that he did not become aware until he started going to a temple in Brampton where he was advised to submit an application for refugee protection. The claimant applied for refugee protection on January 20, 2020.
[20] I find that the claimant’s actions demonstrate that he has subjective fear on a balance of probabilities as he was always actively taking steps to secure his status in Canada and applied for refugee protection shortly after he was advised to do so by individuals at his temple.
Well-Founded Fear of Persecution
[21] To be considered a Convention Refugee, the claimant must demonstrate that he has a well-founded fear of persecution which includes both subjective fear and an objective basis for that fear. Based on the claimant’s BOC, testimony, documentary evidence and the National Documentation Package for India[8], I find that the claimant does face a serious possibility of harm in India.
Dalit Status
[22] In reviewing the country condition documents in the NDP, it is clear that despite the fact that the Indian Constitution specifically prohibits discrimination on the grounds of caste, there are a number of troubling issues faced by members of the Dalit caste in India.[9] Dalits were historically associated with work seen as less desirable, including work involving cleaning or waste, and traditional taboos existed against members of the four castes touching them. Many Dalits continue to work in occupations that include scavenging, street cleaning and handling of human or animal waste, corpses or carcasses.[10] The evidence outlines that violence and discrimination against Dalits continues. Dalits have more limited educational and employment opportunities and face discrimination in health care and access to other essential services.[11]
[23] Untouchability 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.[12]
[24] The claimant testified that he and his family have suffered serious and continued discrimination because of their Dalit status. His father used to work as a farmer but was never paid full price for his crops. This led him to seek other employment however he was frequently dismissed for minor mistakes. The claimants’ father has been living and working in Italy since 2010 due to his inability to maintain employment in India because of his Caste. The claimant testified that he was discriminated against in school. The teacher would force children from lower castes to sit in the back seat, they were not allowed to travel in the school bus, play school sports, or drink from the same water cooler as higher caste students. The family had to buy groceries from a different store and attend a different temple because of their caste.
Honour Crimes
[25] The objective evidence supports that honour-based crimes are a problem in India, particularly in the provinces of Haryana, Punjab and Uttar Pradesh. The term “honour killing” or “honour crime” is used to describe incidents of violence and harassment caused to a couple who are together against the wishes of the community or family members. Such crimes can be linked to unapproved relationships.[13] Caste based violence additionally continues to persist in India, and unions between Dalit and non-Dalit individuals are some of the least socially accepted, especially where the male comes from an inferior or less dominant social group. They can give rise to serious violence including lynching and killings by family members or vigilante groups.[14]
Police Corruption
[26] The objective evidence also supports that there is widespread corruption in India.[15] Officials frequently engage in corrupt practices with impunity.[16] Police officers routinely demonstrate brutal behaviour, including torture and extrajudicial killings with impunity.[17] Additionally, police effectiveness is undermined by inadequate training and equipment, and limited resources. Investigations are seriously hampered by some police officers refusing to register victims’ complaints, poor quality of investigations, insufficient training and legal knowledge, inadequate and outdated forensic and cyber infrastructure and a lack of public trust.[18] A report from the Swadhikar – the National Dalit Movement for Justice suggests that police are accomplices in violence against Dalits through custodial torture and deaths, encounter deaths, raids of Dalit homes, and false arrets of Dalits among others. It recounts the story of a Dalit man who was abducted by police, tortured, abused using derogatory caste names and had a false charge filed against him.[19]
[27] The objective evidence demonstrates that Dalits face serious violations of their fundamental rights that amount to persecution. These violations extend to all parts of their lives, including their relationships. The claimant has established on a balance of probabilities that he has experienced discrimination and harm due to his Dalit status throughout his childhood and most recently with regards to his relationship with a girl from a higher caste. Additionally, I find that the claimant has credibly established that he is being targeted by the police because of the belief that he is anti-national. While it is unclear why the police are suggesting this, the objective evidence corroborates the prevalence of police corruption as well as violence when it comes to Dalit individuals involved with the justice system. Given all of the foregoing, I find that the claimant would face a serious possibility of persecution in India.
State Protection
[28] There is a presumption that countries can protect their citizens. The claimant bears the burden of rebutting that presumption with clear and convincing evidence. I find that there is clear and convincing evidence that adequate state protection is not available to the claimant in this case given the state is one of the agents of persecution.
Internal Flight Alternative
[29] I have considered whether the claimant has an internal flight alternative (“IFA”) in India and have concluded that he does not. To find a viable IFA, I must be satisfied that (1) there is no 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) that conditions in that part of the country are such that it would be reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.
First Prong: Risk in the IFA
[30] On the evidence before me, I find that 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 anywhere in India.
- Means and Motivation of the Agents of Persecution
[31] There is insufficient credible evidence before me that either XXXX family or the police have continued to pursue the claimant in relation to XXXX disappearance since XXXX 2018. However, I do find that the police have demonstrated recent and continued means and motivation to pursue the claimant outside of their jurisdiction based on the belief that the claimant is anti-national. Starting at the end of 2021 and continuing to just a month prior to the hearing, the police have approached the claimant’s mother and neighbour in Kurukshetra, his cousin in Rajasthan state and his uncle in Maharashtra state. Further, the claimant explained that it was the local police who visited his cousin in Rajasthan and his uncle in Maharashtra, indicating that information about the claimant has been passed along to different police forces across the country. Given the foregoing, I find that there is a serious possibility that the claimant’s information is contained in national police databases and that the police across India are searching for the claimant.
- Dalit Status
[32] On the evidence before me, I find that there is a serious possibility of the claimant being persecuted because of his Dalit status. DFAT notes that Dalits in India face a high risk of official and societal discrimination including social segregation, exclusion, and compromised access to education and healthcare.[20] Violence against Dalits also continues, including killings, mob violence, assaults, and intimidation.[21] Further the objective evidence suggests that Dalits would have significant difficulty relocating to urban areas and are often denied accommodation and employment. A social network would be essential in finding employment and housing.[22]
[33] While cities provide some limited level of anonymity, social networks would be essential in finding employment and housing in urban areas.[23] 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.[24] “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.[25] While the claimant has family outside of his village, including an uncle in Mahrashtra state where one of the proposed IFAs is located, the claimant would be unable to access these social networks due to the fact that the police are monitoring his relatives in search of him.
[34] For the foregoing reasons I find that the claimant has demonstrated that the police have the means and motivation to pursue him to various parts of India. Further, I find that the claimant has demonstrated that he would face a serious possibility of persecution due to his Dalit status in other parts of India. As such, I do not need to consider the second prong of the test and find that there is no viable IFA for the claimant.
CONCLUSION
[35] For the forgoing reasons, I find that the claimant is a Convention refugee. The claim is therefore accepted.
(signed) Katarina Bogojevic
November 24, 2022
[1] Immigration and Refugee Protection Act,S.C. 2001, c. 27.
[2] Exhibit 2.
[3] Exhibit 1.
[4] Exhibit 5.
[5] Exhibit 5.
[6] Hernandez Cortez v Canada (Citizenship and Immgiration), 2021 FC 1392 (CanLII); Senadheerage v Canada (Citizenship and Immgiration), 2020 FC 968 (CanLII).
[7] Exhibit 5.
[8] Exhibit 3.
[9] National Documentation Package, India, 30 June 2022, tab 2.1: India. Country Reports on Human Rights Practices for 2021. United States. Department of State. 12 April 2022.
[10] 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.
[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] 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.
[13] 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.
[14] National Documentation Package, India, 30 June 2022, tab 12.5: Situation of inter-religious and inter-caste couples, including treatment by society and authorities; situation of children from such marriages (2017-May 2019). Immigration and Refugee Board of Canada. 16 May 2019. IND106276.E.
[15] National Documentation Package, India, 30 June 2022, tab 2.1: India. Country Reports on Human Rights Practices for 2021. United States. Department of State. 12 April 2022.
[16] National Documentation Package, India, 30 June 2022, tab 2.1: India. Country Reports on Human Rights Practices for 2021. United States. Department of State. 12 April 2022.
[17] 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.
[18] 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.
[19] 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.
[20] 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.
[21] 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.
[22] National Documentation Package, India, 30 June 2022, tab 13.8: Application of the caste system outside of Hinduism; treatment of lower castes by society and the authorities; availability of state protection for lower castes; ability of lower castes to relocate and access housing, employment, education … Immigration and Refugee Board of Canada. 16 June 2020. IND200260.E.
[23] 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.
[24] 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.
[25] National Documentation Package, India, 30 June 2022, tab 13.10: India. World Directory of Minorities and Indigenous Peoples. Minority Rights Group International. June 2020.