2022 RLLR 45

Citation: 2022 RLLR 45
Tribunal: Refugee Protection Division
Date of Decision: November 23, 2022
Panel: Vicki Macdonald
Counsel for the Claimant(s): Gaurav Sharma
Country: India
RPD Number: TC2-14154
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1]       MEMBER: So this is a decision in TC2-14154. In deciding this claim, I have taken into consideration the claimant’s testimony, the totality of other evidence in this case. Additionally, I considered the social and cultural context, difficulties which claimants may face in obtaining documents, the milieu of the hearing room and the stress of responding to oral questions, all at arriving at my finding.

Preliminary Matters

[2]       The Panel conducted a capacity assessment at the outside of the hearing. The claimant was found capable of understanding the seriousness of the hearing and the Panel determined he was not a vulnerable person. The Panel proceeded with the hearing without any other concerns for the claimant’s ability to understand and, therefore, the Panel did not need to designate him a vulnerable person nor assign a representative to him.

DETERMINATION

[3]       I find that you face a serious possibility of persecution in India based on imputed political opinion. I, therefore, find that you are a Convention refugee under section 96 of the Immigration and Refugee Protection Act, the IRPA. The Panel notes that there is also a dual nexus to membership in a particular social group, those with mental health disorders. Although this nexus exists, it will not form the bulk of the analysis as the claimant’s imputed political opinion will be discussed at length and is the basis on which this finding is made.

Identity

[4]       I find that you have established your personal and national identity on a balance of probabilities through your oral testimony and the submission of your Indian passport at Exhibit 1.

ALLEGATIONS

[5]       You allege the following. That you operated and owned a XXXX XXXX business and rented the second floor of your family home to two (2) individuals. That you began renting to VK (ph) and RK (ph) in XXXX 2018. That you completed the mandatory police verification check on them by submitting their identity documents to the Delhi police. That in XXXX 2018, following the arrest of several college students, the Delhi police mandated that landlords resubmit tenant information for their verification. That you were on a trip to the USA at this time, but when you returned in XXXX 2018, you complied with this requirement. That on XXXX XXXX 2018, you resubmitted the same forms and information for VK and RK to the police. That on XXXX XXXX 2018, both Delhi police and Jammu and Kashmir state police came to the residence and you were required to let them into the unit. That they alleged to have found anti-national materials within that unit. That the police detained you for questioning for XXXX (XXXX) days until XXXX XXXX 2018. That the police interrogated you about the tenants, accused you of supporting their plot against India, accused you of being an anti-nationalist or militant, and that they subjected you to severe violence and made threat against your life. That you were hospitalized for XXXX (XXXX) days after your release. That you went into hiding XXXX (XXXX) XXXX XXXX XXXX hours away from your home, after both a lawyer and your family told you they were unable to help you, and another visit to the police station as required by the conditions put on you at your release. That you secured a Canadian visa and travelled to the USA before coming to Canada. That the police continued to question and harass your family, neighbours and municipal councillor giving explicit instructions to locate and alert them to your return.

Credibility and Fact Finding

[6]       In terms of general credibility, I found you were a credible witness and I, therefore, believe what you have alleged in your oral testimony and in your Basis of Claim form. I found that you were spontaneous and detailed and that there were no contradictions in your testimony which go to the core of the claim. You established your credible testimony when you spoke about your fear of the police in an unembellished manner. I find the following documents support your allegations. The affidavit at Exhibit 4 from your parents supports the allegations of your arrest and the police continued interest in you. The letter from the advocate at Exhibit 4 which supports your allegations of seeking assistance, being denied assistance and the advice given to leave India. The medical letters from the Montreal-based hospital and support services at Exhibit 4 which supports your allegations regarding your mental health. The proof of Indian — of your Indian business at Exhibit 4 which supports the allegations that you were the renter of the premises and that this was the business you operated by yourself. The news article at Exhibit 5 which supports the allegation that the Delhi police forced landlords to resubmit tenant information starting in XXXX 2018. The letter from the municipal councillor at Exhibit 4 which supports the allegation of his involvement in your release from detention and the police continued interest in you. I have no reason to doubt the voracity of these documents and, therefore, assign them full weigh.

[7]       The Panel questioned the claimant on his delay in leaving India, as well as his time in the USA prior to coming to Canada and his delay in claiming once arrived in Canada. The Panel asked why he decided to apply for a Canadian visa and remain in India well in danger, rather than use the valid US based visa to immediately flee. The claimant provided the explanation that in speaking with this friend in California, that he was told that he could only stay for six (6) months in the US without leaving again. That they had discussed that if he had a Canadian visa, he could, essentially, shuttle back and forth between the US and Canada and continue to be safe for at least another period of six (6) months within Canada while matters calmed down in India, if necessary. The claimant also explained that neither he, nor his friend, were certain if he could apply for a Canadian visa while visiting the USA. So he went into hiding XXXX (XXXX) XXXX XXXX XXXX hours from his home in India while waiting for that visa. The Panel finds this is a reasonable explanation and that the claimant took significant steps to maintain his safety and that this supports his subjective fear.

[8]       The Panel also asked why, after the Canadian visa was issued in XXXX 2019, he remained in India until XXXX XXXX, 2019. The claimant explained that the agent he employed held onto his passport until he was paid in full and the payment was not received until early XXXX 2019. He then explained that when he gave his last payment installment, that he received his passport and the agent arranged his flight to the US. Again, the Panel accepts that this is a reasonable explanation. The Panel asked why the claimant did not make a refugee claim while in the USA for XXXX (XXXX) months prior to coming to Canada. He explained that as President Trump had been in power at that time, that he and community members discussed whether he could make a claim or not. He explained that they felt that the USA was now supportive of claims from India and that he feared being returned to India as a result. The Panel finds that this is well-documented fear and accepts this as a reasonable explanation. The Panel asked why he waited XXXX (XXXX) months, from arriving in Canada, to make his claim. Again, the claimant provided a reasonable explanation in saying that he sought advice from community members in Montreal and looked for Counsel to represent his interest during that time. The Panel accepts this response. Therefore, the Panel does not make any findings which impact the claimant’s subjective fear. I find your subjective fear is established by your credible testimony and I believe what you have alleged on a balance of probabilities.

Objective Basis

[9]       I have assessed the National Documentation Package and found that the objective basis for your fear is well established. The National Documentation Package widely acknowledges the police in India are often viewed as a corrupt organization and that they engage in torture, extrajudicial detention and extrajudicial murder. Items 2.1 highlights this, as does Item 10.5. 10.5 states that although there are mechanisms in place to denounce police actions or abuse, that those mechanisms are ineffective or non-operational at best. Item 12.8 highlights that the police and security organizations will harass and implicate those that they suspect of participating in anti-national or anti-Indian unity activities. And in many cases, falsely implicate those people in criminal cases which take years to resolve. The Panel also notes, although it is not determinative, that the NDP highlights the stigma attached to mental health disorders and the lack of available care for individuals such as the claimant. This is discussed at length in Item 1.14 which is a UK Home Office report. Therefore, the objective basis for this claim is established and the claimant has credibly established his well-founded fear of persecution.

State Protection

[10]     As the agent of persecution in this claim is the police, the Panel finds it would be unreasonable for the claimant to approach the agent of persecution for his – for assistance. Therefore, the presumption of state protection is rebutted.

Internal Flight Alternative

[11]     I have considered whether the claimant would be able to safely live anywhere else in India. On the evidence before me, I find the test fail in the first prong and the claimant would not be safe in either Bengaluru, Mumbai or Hyderabad, which were the proposed internal flight alternatives. The police have shown their continued motivation and ability to locate the claimant through their dual interests and interconnection of the Delhi police and the Jammu and Kashmir police. They have done so by visiting his family members over the last three (3) years. Given the ongoing harassment of the claimant’s family by the police, the claimant will be unable to disclose his whereabouts to his immediate ouldd be unreasonable for the claimant’s family to place their own lives in danger by either denying knowledge of his whereabouts or by deliberately misleading police. To require the claimant to return and not disclose his location to his family will be tantamount to requiring him to hide in the IFAs. And the federal court has stated in both Zamora Huerta, Z-A-M-O-R-A, second name H-U-E-R-T-A, and in Ali, A-L-I, that this is an unreasonable burden to place on the claimant. As a result, the test fails and there is no internal flight alternative available to the claimant.

CONCLUSION

[12]     Based on the totality of the evidence before me, I conclude that the claimant is a Convention refugee pursuant to section 96 of the IRPA based on his imputed political opinion. His claim is, therefore, accepted.

——— REASONS CONCLUDED ———