Citation: 2022 RLLR 24
Tribunal: Refugee Protection Division
Date of Decision: October 11, 2022
Panel: Kevin Kim
Counsel for the Claimant(s): Deepak Pawar
Country: India
RPD Number: VC2-04045
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX as a citizen of India who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”)[i].
ALLEGATIONS
[2] The specific details of the claimant’s allegations are contained in his Basis of Claim (BOC) form and the narrative therein.[ii] The claimant fears persecution in India based on his imputed political opinion because the police in India allege that the claimant is affiliated with Khalistani extremists.
[3] The claimant is a 38-year-old Sikh Indian man who is a public supporter for the establishment of Khalistan, or a separate Sikh state. The claimant intermittently worked as a XXXX XXXX in the United Arab Emirates from 2005 to 2018. During his time in the Emirates, the claimant was issued temporary work visas from his employer, and had no permanent status or residency in the Emirates.
[4] In XXXX 2015, a violent incident between terrorists and the Punjab police took place in the claimant’s home village. The claimant stated that the police arrested the claimant, who was not involved in the incident, as the police were aware of the claimant’s work history in the Emirates. The claimant stated that since the Emirates is an Islamic nation, the police suspected that the claimant was involved in the attack. In custody, the claimant was beaten and had his fingerprints, photographs, and signatures taken by the police. The claimant was kept in custody for three days and was able to be released after the claimant’s family provided the police with a bribe.
[5] Following this incident, the claimant returned to Dubai and resumed his work as XXXX XXXX XXXX. In XXXX 2016, the claimant returned to India to visit his family. The claimant indicated that although he returned to India despite the incident in XXXX 2015 as he thought that the incident with the police was an isolated incident, and that the police would have had arrested the individuals responsible for the terrorist attack. The claimant indicated that he thought all suspicion surrounding him would have been cleared at that point.
[6] However, in XXXX 2016, the claimant was arrested by the police again. The police detained the claimant from his home and made allegations that the claimant was assisting Sikh militants and that he was traveling to Pakistan using fake identity documents. The police further alleged that the claimant was assisting the Sikh militants financially. The police took the claimant’s fingerprints, photographs, and signatures again. The claimant’s family provided the police with another bribe, and the claimant was able to be released. Upon release, the claimant was instructed to report to the police before he travels out of India and again when he returns.
[7] In XXXX 2016, the claimant returned to the Emirates to resume his employment. When in the Emirates, the claimant began to grow fearful of his eventual return to India as the nature of his employment in the Emirates was temporary. The claimant feared that should his employment be terminated in the Emirates, he would have to return to India as his status in the Emirates was dependent on his employment. The claimant contacted an agent in India, who began to prepare a Canadian visa for the claimant.
[8] In XXXX 2018, the claimant was informed by his agent that in order to finalize his visa application, he would have to return to India. In the same month, the claimant traveled back to India and provided his agent with his passport, photographs, and payment in order to secure his visa. Upon return, the claimant presented himself at the police station as the police demanded.
[9] On XXXX XXXX, 2018, the claimant was summoned to the police station. The police instructed the claimant that he will be sent to Pakistan to join a militant group, and to send all information he receives back to the Punjab police. The claimant reported this to the district commissioner in Kapurthala on XXXX XXXX, 2018, who promised the claimant that he would investigate the matter.
[10] On XXXX XXXX, 2018, the police attended the claimant’s home while the claimant was not present. The police stated that the claimant was making false allegations against them, and proceeded to threaten the claimant’s wife in order to locate the claimant. When the claimant discovered that the police had attended his home, the claimant fled to his uncle’s home in Delhi in order to hide. The claimant also contacted his agent who provided him with other hiding locations within Delhi. Eventually, the claimant fled India in XXXX 2018.
[11] The claimant indicated that approximately five months after arriving in Canada, he has become a public supporter of Khalistan. The claimant stated that he has participated in pro-Khalistan rallies and referendums since his arrival in Canada.
DETERMINATION
[12] I find that the claimant is a Convention refugee pursuant to section 96 of the Act.
ANALYSIS
Identity
[13] I find that the claimant’s personal identity and his identity as a citizen of India has been established on a balance of probabilities by the claimant’s testimony and a copy of his Indian passport on file.[iii]
Nexus
[14] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds enumerated under section 96 of the IRPA: race, religion, nationality, membership in a particular social group or political opinion.
[15] In this case, I find that the claimant’s allegations establish a nexus to the Convention ground of political opinion, real or imputed, as the police allege that the claimant is affiliated with Khalistani militants. Therefore, I will assess this claim under section 96 of the Act.
Credibility
[16] 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.[iv] The presumption of truthfulness does not apply to inferences or speculation.
[17] In this case, I have no reasons to doubt the truthfulness of the claimant. He testified in a straightforward and consistent manner, and answered all questions asked to him spontaneously. He did not appear to exaggerate or embellish his testimony.
[18] Furthermore, the claimant submitted documentary evidence in support of his claim. The documents form parts of Exhibit 4, and contain the following:
- Corroborative affidavits from the claimant’s wife, father, uncle in Delhi, and village decision-maker, all with accompanying identity documents;
- Medical report detailing the nature of the injuries and treatment given to the claimant in November 2015;
- The claimant’s Khalistan Referendum voter registration card; and
- Photographs of the claimant during a pro-Khalistan rally and photographs of the claimant’s activities in a Sikh temple in Canada.
[19] I have no reasons to doubt the genuineness of these documents and I accept them as genuine. As these documents relate to the central elements of the claimant’s allegations, being that the Punjab police have targeted the claimant by alleging the claimant is affiliated with Khalistani terrorists, I assign significant weight to these documents in establishing the claimant’s allegations as true.
[20] Based on the claimant’s straightforward testimony coupled with the documentary evidence noted above, I find the claimant to be a credible witness and accept the claimant’s allegations in support of his claim to be true.
Well-Founded Fear of Persecution
[21] Based on the claimant’s testimony and the objective country conditions evidence as set out in the National Documentation Package (NDP), I find that the claimant has a well-founded fear of persecution from the police in India based on his imputed political opinion.
[22] The claimant has suffered harm from the police due to his imputed political opinion as the Punjab police falsely alleged that the claimant was affiliated with Khalistani militants. The claimant indicated that these are false allegations, and that he has only begun to support the establishment of Khalistan after his arrival in Canada.
[23] Country conditions documents in the NDP for India confirms that police corruption is widespread and that the police have broad arrest and detention rights. A report by the UK’s Home Office[v] reports:
The USSD HR Report 2017 noted that ‘Police may detain an individual without charge for up to 30 days, although an arrested person must be brought before a judge within 24 hours of arrest. Lengthy arbitrary detention remained a significant problem due to overburdened and under resourced court systems and a lack of legal safeguards. Arraignment of detainees must occur within 24 hours unless authorities hold the suspect under a preventive detention law.
[24] A report by the US Department of State[vi] states the following regarding the prevalence of in-custody treatment:
Significant human rights issues included: unlawful and arbitrary killings, including extrajudicial killings perpetrated by police; torture and cases of cruel, inhuman, or degrading treatment or punishment by some police and prison officials; arbitrary arrest and detention by government authorities; harsh and life-threatening prison conditions.
… There were reports of abuse in prisons at the hands of guards and inmates, as well as reports that police raped female and male detainees.
[25] Further, an RIR by the IRB[vii] on the treatment of perceived separatists or Khalistan supporters in and outside of the state of Punjab states the following:
… the World Sikh Organization of Canada, an organization promoting the interests of Canadian Sikhs, stated that the “government, civil society and media vilify Sikhs advocating for Khalistan as extremists and militants by default” … the government is “hostile” to separatist movements.
According to sources, the police “keep track of” or “monitor” Khalistan supporters… security services are more likely to focus on Sikh separatists because they represent “a perceived political threat to the unity of India”… Khalistan activists who participate in activities such as demonstrations, meetings or posting on social media will be monitored… individuals who move to another city will continue to be tracked since that information will be shared.
According to the WSO representative, “suspected supporters of Khalistan are not safe outside of Punjab, anywhere in India”. The same source added that “no Sikh can openly be an advocate for or support the creation of Khalistan” and doing so results in harassment by police, false cases and also hatred of those who do not support Khalistan”; the government portrays anyone supporting separatism as “an extremist or terrorist and as an ‘anti-national’ that can be legitimately targeted for violence”.
[26] I find that the claimant is an individual who has been falsely alleged and implicated by the police to be affiliated with extremists due to the claimant’s frequent travel between India and the Emirates. Given the objective evidence listed above, which indicates that police in India act with impunity towards perceived Khalistan supporters, I find that the claimant would face a serious possibility of persecution should he return to India.
State Protection
[27] In all refugee claims, the state is presumed to be capable of protecting their citizens unless there is clear and convincing evidence to the contrary. A claimant who alleges that state protection is not available must persuade the Board, on a balance of probabilities, that the state would be unable or unwilling to offer protection.
[28] Since the state is the agent of persecution in this case, I find, on a balance of probabilities, that the claimant will not be able to access adequate state protection in his home country and that the presumption of state protection has been rebutted. I find that state protection would not be reasonably forthcoming for the claimant as the police are accusing the claimant of collaborating with militants, which resulted in the arrest, detention, and abuse of the claimant.
Internal Flight Alternative
[29] The question then becomes whether the claimant could find safety in an internal flight alternative (IFA). At the outset of the hearing, I proposed Mumbai and Delhi as possible IFA locations.
[30] Once the issue of an IFA has been raised, the onus is on the claimant to show that he or she does not have an IFA.[viii] To find a viable IFA, I must be satisfied that there is no serious possibility of the claimants being persecuted or, on the balance of probabilities, being subjected personally to a danger of torture or a risk to life or cruel and unusual punishment in the proposed IFA. Furthermore, the conditions in that part of the country are such that it would be reasonable in all the circumstances, including those particular to the claimants, to seek refuge there.
[31] I find that the police still have continuing motivation to seek the claimant in India. It is the claimant’s testimony, which I find to be true, that the police continue to visit the claimant’s village and home in search of the claimant. Given the police’s continued efforts to visit the claimant’s home in search of the claimant despite the passage of time from the initial incident in XXXX 2015, I find that the police are still motivated to seek the claimant.
[32] The question then becomes whether the police would have the means to locate the claimant in India should he return. Based on the objective evidence in the NDP, I find that the police would have the means to locate the claimant in India.
[33] The objective evidence shows that anyone moving to another part of the country from their regular area of residence will have to undergo a background check when filling out an application for tenancy or lease. According to a Response to Information Request by the IRB,[ix] “sources describe tenant registration [or verification] as mandatory”, and that “tenant verification aims to detect criminal background, if any, and maintain a database on people living in a particular area”. The report further states that “through police verification, the history of any tenant can be verified whether the person had any criminal involvement or absconding from other states’ police”.
[34] As part of the background checks used in verifying tenants, Indian authorities have access to a nationwide database known as the Crime and Criminal Tracking Network and Systems (CCTNS), which contains information on crime and criminals, police daily diary and general diary entries, as well as Integrated Investigation Forms (IIF).[x] It also interconnects police stations across the country.
[35] According to an RIR, 97 percent of India’s police stations are connected to the system. The CCTNS is also deployed in 95 percent of police stations nationwide; 81 percent of the data from police stations across India is synched with the CCTNS on the same day. Punjab, meanwhile, is among the states which report the most access to functioning CCTNS.[xi]
[36] The claimant indicated that he was never presented with any formal paperwork from the police or has been informed by the police that an FIR has been lodged against him. However, according to an RIR[xii] by the IRB, the police “keep track of or monitor Khalistan supporters” and that the “security forces are more likely to focus on Sikh separatists because they represent a perceived political threat to the unity of India”. The same RIR further mentions that individuals who move to another city will continue to be tracked since that information will be shared.
[37] According to a researcher who studies digital policing in India, only a portion of the CCTNS records data come from FIRs; in addition, the system also captures the “‘daily diary’ or the ‘general diary’ (an account of the daily functioning of the police station).”[xiii] Given such evidence, I find on a balance of probabilities that the claimant’s encounters with the police in XXXX 2015, XXXX 2016, and XXXX 2018 were recorded as part of the police’s daily or general diary, meaning they have a record of his stay there. As such, I find that it is more likely than not that the claimant’s name would notify Punjab police should the claimant go through the tenant verification process in the proposed IFA locations.
[38] Given the mandatory nature of tenant verification checks in India, coupled with the fact that personal information of Khalistan supporters, real or imputed, are tracked even to different cities, I find, on a balance of probabilities, that the police in India would have the means to locate the claimant in the proposed IFA cities.
[39] Ultimately, I find that the IFA test fails on the first prong, and I find that no viable IFA exists for the claimant.
CONCLUSION
[40] For the foregoing reasons, I find that the claimant is a Convention refugee pursuant to section 96 of the Act and I accept his claim.
(signed) Kevin Kim
October 11, 2022
[i] Immigration and Refugee Protection Act,S.C. 2001, c. 27.
[ii] Exhibit 2.
[iii] Exhibit 1.
[iv] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302
[v] 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.
[vi] Exhibit 3. 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.
[vii] Exhibit 3. National Documentation Package, India, 30 June 2022, tab 12.8: Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them; treatment of Sikhs outside t.. Immigration and Refugee Board of Canada. 30 May 2022. IND201037.E.
[viii] Rasaratnam, [1992] 1 F.C. 706 (C.A.).
[ix] 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.
[x] Exhibit 3. National Documentation Package, India, 29 April 2022, tab 10.6: 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… Immigration and Refugee Board of Canada. 25 June 2018. IND106120.E.
[xi] Exhibit 3. National Documentation Package, India, 29 April 2022, tab 10.13: 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). Immigration and Refugee Board of Canada. 26 May 2021. IND200626.E.
[xii] Exhibit 3. National Documentation Package, India, 30 June 2022, tab 12.8: Situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them; treatment of Sikhs outside t.. Immigration and Refugee Board of Canada. 30 May 2022. IND201037.E.
[xiii] Ibid.