Citation: 2022 RLLR 54
Tribunal: Refugee Protection Division
Date of Decision: July 6, 2022
Panel: Josée Bouchard
Counsel for the Claimant(s): Jean Cantin
Country: India
RPD Number: TC2-06248
Associated RPD Number(s): TB8-27361, TC2-06249
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision for the following claimants, the principal claimant, XXXX XXXX XXXX the file number is TC2-06248, her spouse the associate claimant, XXXX XXXX, the file number is TB8-27361, and their son the minor claimant, XXXX XXXX, file number is TC2-06249. In writing this decision I have considered and applied the Chairperson’s Guideline for Women Refugee Claimants fearing Gender-Related Persecution. I have considered the claimants’ testimonies and the other evidence in the case and I am ready to render my decision orally.
[2] The claimants’ allegations are fully set out in their Basis of Claim forms filed as Exhibits 2.1 to 2.3, and the addendum to the narrative filed as Exhibit 7.1. To summarize, the principal and associate claimants allege persecution at the hands of the authorities and drug dealers because of their real or imputed political opinion, namely as anti-drug activists who are critical of the government’s position as it relates to drug dealing. The minor claimant alleges persecution at the hands of the authorities and drug traffickers or drug dealers, because of his membership in a particular social group, namely his familial relationship with the principal and associate claimants. The claimants allege that there is no state protection for them, or an internal flight alternative. I find that the claimants are convention refugees pursuant to Section 96 of the Immigration and Refugee Protection Act. The associate and principal claimants have demonstrated a serious possibility of persecution in India by virtue of their real or perceived political opinion, as anti-drug activists who are critical of the government’s position as it relates to drug dealing.
[3] The minor claimant has demonstrated a serious possibility of persecution in India by virtue of his membership in a particular social group, namely his familial relationship to the principal and associate claimants. I find that the claimants’ personal and national identities as citizens of India have been established on a balance of probabilities, by the claimants’ testimonies, and their supporting documents; namely their passports issued by the Government of India and filed as part of Exhibit 1.
[4] I find that there is a link between what the claimants fear and the grounds enumerated in Section 96 of the Immigration and Refugee Protection Act, namely imputed or real political opinion and membership in a particular social group. Therefore, I have assessed the claimants’ claims under Section 96 of the Immigration and Refugee Protection Act. The test under Section 96 is whether there is a serious possibility of persecution should the claimants return to India, and I have found that the claimants have met that test.
[5] In terms of the claimants’ credibility I generally found the principal and associate claimants to be credible witnesses, and I therefore believe what they have alleged in their oral testimonies and Basis of Claim forms and addendum to the Basis of Claim forms. The principal and associate claimants’ evidence as it pertained to the core elements of the claims was consistent, both internally and with the documentation. The principal and associate claimants were responsive and forthright, they were able to elaborate on their narrative and gave explanations to the questions. The claimants filed documentary evidence to support their claims, which were filed as Exhibits 7.1 to 7.3 and 8. There is no reason to cast any doubt on the veracity of the documentary evidence and as such I place great weight on the evidence to support their claims. Based on the claimants’ testimonies and documentary evidence the claimants have established on a balance of probabilities the following.
[6] The claimants are of the Sikh faith. The principal and associate claimants became concerned about the number of kids from their village taking drugs. As a result, in or around 2015 the associate claimant and a circle of friends and relatives, including his cousin, XXXX, began XXXX XXXX, XXXX XXXX, and XXXX XXXX to motivate the younger generation so they would not be inclined to use drugs. The drug dealers soon started threatening the associate claimant and his group to stop doing such activities. This claim is supported by the principal and associate claimants’ credible testimonies and narrative, photos of some of the sports activities, and affidavits from the associate claimant’s mother, a neighbour, and a former municipal councillor of the village. These are entered as Exhibits 7.1 and 7.3.
[7] In XXXX of 2017, the associate claimant and his cousin, XXXX, were going to a relative’s house in Kartarpur, on bike. About six (6) or seven (7) unknown individuals believed to be drug dealers attacked. The associate claimant and his cousin were rescued by local villagers who rushed them to the hospital. The associate claimant tried to file a complaint with the police but because of lack of evidence the police did not pursue the matter further. A few months later the associate claimant’s cousin succumbed to his injuries. The associate claimant explains that he could not get the death certificate for his cousin as XXXX’s father has passed away and his brother lives in the United States. Instead, the associate claimant was able to file a photo of XXXX on the day of his cremation. I find this explanation reasonable in the circumstances. The claim is supported by the principal and associate claimants’ credible testimonies and narrative, the medical report attesting to the associate claimant’s injuries and treatment, affidavits from the associate claimant’s mother, neighbour, and former municipal councillor, and a photo of XXXX on the day of his cremation. These are filed as Exhibits 7.1 and 7.2. The drug dealers hired a man to kill or attack the associate claimant. The associate claimant filed a complaint to XXXX XXXX XXXX of police in Jalandhar City in XXXX 2017. Police arrested someone in connection to the complaint, but he was soon released.
[8] The associate claimant testified that the drug lords have close ties to the authorities and as such have power over the police. In XXXX 2018 the associate claimant went into hiding in Mumbai, first with a friend who came from his village. With intimidation of the friend’s family in their hometown, the police discovered the whereabouts of the associate claimant. After about five (5) days the associate claimant left his friend’s house in fear of being attacked, and hid in various Sikh temples. The associate claimant fled India with the assistance of an agent in XXXX of 2018. This claim is supported by the principal and associate claimants’ credible testimonies and narrative, chat messages between the person who hired the man to kill the associate claimant and a friend of his cousin’s, and affidavits from the associate claimant’s mother and a former municipal councillor. These are all filed as Exhibits 7.1 and 8.
[9] In XXXX 2019 the police attended twice at the principal and associate claimants’ residence, looking for the associate claimant. The principal claimant was mistreated by police. In XXXX 2019 the police raided the claimants’ residence and took the principal claimant and her son, the minor claimant, into detention. They were both mistreated by the authorities. Once released, the principal claimant sought medical attention. The principal and minor claimant fled India shortly thereafter. The principal claimant did not have time to get a visa for her younger child, her daughter. The daughter remains in India and is being taken care of by relatives. The claim is supported by the associate and principal claimants’ credible testimonies and narrative, the medical report attesting to the principal claimant’s injuries and treatment, and affidavits from the associate claimant’s mother, a neighbour, and a former municipal councillor, all filed as Exhibit 7.1.
[10] In Canada, the associate claimant continues to transfer money to assist children in his village in India. The associate claimant filed an affidavit from his mother stating that the police are still looking for them and the latest they came to look for him was in XXXX of 2022. This claim is supported by the associate and principal claimants’ credible testimonies and narrative, the associate claimant’s mother’s affidavit, and proof of money transfer to the recipient from the claimant’s village. These are filed as Exhibits 7.1 and 7.2.
[11] I find that the claimants’ subjective fear is established by the claimants’ credible testimonies and overall evidence, and I believe that the claimants have alleged on the balance of probabilities. I turn now to the objective basis.
[12] The National Documentation Package for India dated June 30th, 2022 at Exhibit 3, supports the claimants’ evidence about their subjective fear of arrest, detention, and mistreatment by the police and drug dealers because of the claimants’ alleged anti-drug activism against the government’s position about drug dealing. The National Documentation Package for India confirms that political and human rights activists or those perceived to be such as the claimants, are often harassed and arrested for their political opinion. The United States Department of State Report on Human Rights for 2021 at Exhibit 3, item 2.1 notes that, “Individuals routinely criticized the government publicly and privately via online platforms; television, radio, or in print media. The government increasingly harassed, arrested, and prosecuted rights defenders, activists, journalists, students, academics, and others critical of the government or its policies”.
[13] The World Report 2022 on India, at Exhibit 3, item 2.3 also notes that, “Critics of the BJP party, including activists, journalists, peaceful protestors, and even poets, actors, and businesses increasingly risked politically motivated harassment, prosecutions, and tax raises. Authorities shut down rights groups using foreign funding regulations or allegations of financial irregularities”. The National Documentation Package for India also discusses prevalence of drug dealing in India. The United States Overseas Security Advisory Council at Exhibit 3, item 7.1 notes that, “India is the leading generic drug manufacturer in the world. Drug traffickers exploit their commercial infrastructure to market dangerous synthetic drugs in the United States or elsewhere”.
[14] “Indian law enforcement officials have made arrests for trafficking heroin near the Nepal border, with a believed terrorism nexus. Illegal drugs are commonly used and are widely available. Foreign criminal elements have distributed methamphetamine widely in New Delhi and increasingly elsewhere throughout India”. The Asian Centre for Human Rights at Exhibit 3, item 10.8 notes that, “We are not oblivious to the fact that police in India has to perform a difficult and delicate task, particularly when there are many hardcore criminals like extremist terrorist drug pedallers, smugglers, who have organized gangs that have taken strong roots in the society. Such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following the rule of law. We are of the view that it would be useful and effective to structure appropriate guidelines to restore faith of the people in the police force. In a society governed by the rule of law it is imperative that extrajudicial killings are properly and independently investigated so that justice may be done”.
[15] I find that the claimants’ subjective fear of being arrested, detained, and abused should they return to India is supported by the objective country condition evidence. When making a refugee claim a claimant must establish on a balance of probabilities that adequate state protection is not available. There is a presumption that state protection is available and the onus is on the claimant to provide clear and convincing evidence to rebut such presumption. I accept that the associate claimant complained to the authorities at least twice about the threats from the drug dealers. I also accept that in the first instance the police refused to investigate for lack of evidence and in the second instance the man hired to attack or kill the associate claimant, was arrested but released the same day and there was no further outcome.
[16] The objective country condition reports note, more specifically the United Kingdom Home Office Report at Exhibit 3, item 10.10, that, “Citizens often face substantial obstacles including demands for bribes, in getting the police to file a First Information Report, which is necessary to trigger an investigation for an alleged crime. Corruption within the police force remains a problem”. The same report adds that, “Police services are undermined by inadequate training and equipment, limited resources, political influence, and corruption. Police 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. There are legal remedies for severe police misconduct and corruption, although some victims may be reluctant to report police violations due to fear of retribution”.
[17] Considering the inadequacy of police services in India, I find that protection would not be reasonably forthcoming in the case of the claimants and there is no adequate state protection available in India for them. I turn now to whether or not there’s an internal flight alternative for the claimants. I raised the issue of an internal flight alternative at the beginning of the hearing and identified Jaipur or New Delhi as the possible internal flight alternative cities. I also canvassed the issue during the hearing. The onus is on the claimants to produce sufficient credible evidence to establish that they face a serious possibility of persecution or a personal risk of torture, or risk to their life, or a risk of cruel and unusual treatment or punishment in the proposed internal flight alternatives. The claimants must establish that the agents of persecution have the means and motivation to harm them in the internal flight alternative. The panel finds that the claimants have met this burden of proof. The panel accepts that although the police have not issued a warrant for the claimants’ arrest or a First Information Report against them, the police are still looking for the claimants; in particular the associate claimant. The panel accept that the associate claimant fled his own town in Jalandhar to live in hiding in Mumbai, a city that is more than 1,500 kilometres away.
[18] The panel accepts that the police, through intimidation of relatives of the person the associate claimant stayed with, soon discovered his location in Mumbai. The panel accepts that the associate claimant had to continue living in hiding by staying in Sikh temples instead of renting a place where he would have to divulge his identity. The panel also accept that as of XXXX 2022, the police were still looking for the claimants. The panel accept that if the claimants were to return to India to live either in Jaipur or New Delhi, they would have to live in hiding. The Federal Court in Murillo Taborda v. Canada 2013 FC 954 [sic] has held that, “An internal flight alternative is not viable if the claimant must live in hiding in the internal flight alternative for fear of being discovered by the agent of persecution”. The panel finds that the claimants would be forced to live in hiding should they return to India to live either in New Delhi or Jaipur.
[19] The Federal Court in Abbas against Canada 2019 FC 1576 has also noted that, “The size of the internal flight alternative may be misleading where there are family networks and connections that would facilitate an easier access of locating the claimants”, such as is the case in the claimants’ circumstances. The claimants filed affidavits from the associate claimant’s mother, a neighbour, and a former municipal councillor who could be pressured to provide the claimants’ whereabouts should they return to India. The panel also notes that the associate claimant’s location in Mumbai was discovered by intimidation of the family of the friend with whom the associate claimant stayed.
[20] The Federal Court in Emuze v. Canada 2021 FC 894 also recognizes that the Refugee Protection Division must consider the fact that an agent of persecution found the claimant in another city. I accept that when the associate claimant moved to Mumbai his location was discovered.
[21] The principal claimant testified that the claimants could not relocate to another part of India because they would have to register their identity to obtain lodging, employment, or access other services, which would lead the police to contact the local authorities who are still looking for the claimants. I note that there are several means for the police to locate the claimants anywhere in India. The objective country condition reports, more specifically, Human Rights Watch at Exhibit 3, item 3.22, discusses the government’s mandatory biometric identification project, Aadhar. “It is a large-scale collection of personal and biometric data which is linked to a range of services”. In other words, a person requires the Aadhar card to access several government services. Human Rights Watch notes that it raises, “Serious concerns about violations of the right to privacy. There are legitimate concerns about privacy, surveillance, or just misuse of personal information and the government should address these problems instead of coercing people to enrol and link existing services to Aadhar”. The Immigration and Refugee Board of Canada’s Response to Information Request dated May 14th, 2019 and available at Exhibit 3, item 14.8, describes the tenant registration and verification process in India. It notes that, “Such process aims at detecting criminal background and maintaining a database of people living in a particular area”. It adds 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”. It also notes that, “Tenant registration or verification with local authorities is mandatory. Officers in different states can communicate with each other if they wish to locate someone”.
[22] In addition, a May 26th, 2021 Immigration and Refugee Board of Canada report at Exhibit 3, item 10.13, discusses police databases and criminal tracking. It describes the Crime and Criminal Tracking Network and Systems, or CCTNS, “Launched in 2009 as a system with the aim of establishing seamless connectivity among 15,000 police stations across the country, CCTNS entails digitization of data related to First Information Reports, registered cases investigated, and charge sheets filed in all police stations, to develop a national database of crime and criminals”.
[23] It adds that, “Since 2015 the scope of the CCTNS project was extended beyond establishing a national database of crime or criminal records, to the establishment of an interoperable criminal justice system by integrating data from prisons, courts, prosecution, forensics, police, and fingerprints”. The same report confirms that, “The National Crime Record Bureau is implementing the CCTNS; as of October 31st, 2020 connectivity was available at 15,620 police stations out of 16,098 police stations, so more than 95 percent in India. Since the launch of the digital portal in 2017, CCTNS enables not only searches for criminals but also suspects. The CCTNS records data not only from First Information Reports but also from the daily recording of events taking place at the police station”.
[24] Two (2) recent Refugee Appeal Division decisions have found a serious possibility of persecution throughout India, when police are motivated to search for a claimant via various database. In one case, X (Re) 2019 CanLII 133689 at paragraph 20, the Refugee Appeal Division noted that overall the research information in the most recent NDP or National Documentation Package, “Suggests that tenant verification requirements in India could lead to the police in one of the proposed internal flight alternative cities communicating and cross-checking information with the Punjabi police and that this process appears to be supported by a digital portal”. In a second decision in X (Re) 2019 CanLII 133689 at paragraph 20 [sic], the Refugee Appeal Division noted again, “Taking into account the context of refugee determination and on the basis of the current state of the National Documentation Package information, I am prepared to find that there is a reasonable chance that police from Indian states sometimes include in the police national database persons they have interest in who have as yet no criminal record or formal accusations, and that this would as a result come to the attention of the Mumbai or Delhi police through a tenant verification check of the CCTNS”.
[25] In addition, the evidence supports the proposition that the Punjab police is motivated to pursue the claimants anywhere in India. The evidence establishes that the police enquired about the claimant’s whereabouts with the principal claimant as early as XXXX 2022. I find that the authorities in India still have the motivation to locate the claimants. In conclusion, the police still have the motivation to locate the claimants and there are several possible ways in which the police could come to know of the claimants’ location in any of the internal flight alternative cities; either through the tenant registration and verification process, the mandatory biometrics project, the CCTNS system, or simply through contacts with family and acquaintances. Accordingly, I find that there is no internal flight alternative for the claimants in their particular circumstances.
[26] And now, Madam Interpreter, will be the conclusion. For the decision, based on the totality of the evidence and for the reasons outlined above, I find that the claimants are convention refugees pursuant to Section 96 of the Immigration and Refugee Protection Act. The principal and associate claimants face a serious possibility of persecution in India because of their imputed or real political opinion as anti-drug activists against the government’s position on drug dealing. The minor claimant faces a serious possibility of persecution in India because of his membership in a particular social group, namely his familial relationship with the associate and principal claimants. I accept their claims.
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