Citation: 2022 RLLR 58
Tribunal: Refugee Protection Division
Date of Decision: October 7, 2022
Panel: Moyosore Sadiq-Soneye
Counsel for the Claimant(s): Meryem Haddad
Country: India
RPD Number: TC2-20551
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision of the Refugee Protection Division in the claim of XXXX who claims to be a citizen of India and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
ALLEGATIONS
[2] The allegations are fully set out in the claimant’s Basis of Claim form (BOC) located in exhibit 1. In summary, the claimant is a 51year old Sikh XXXX who fears persecution at the hands of the Punjab police on the basis of an imputed political opinion. The claimant alleges that he was unlawfully arrested twice by Punjab police officers (police), who took his fingerprints, photos, and signatures on blank papers while the claimant was in custody. The police allegedly falsely accused the claimant of being a militant and a mediator between Muslim and Sikh militants.
DETERMINATION
[3] Having considered all of the evidence, including the claimant’ s testimony, the panel finds that the claimant has established a well-founded fear of persecution based on a Convention ground. The panel concludes that the claimant is a “Convention refugee” as per section 96 of the IRPA.
ANALYSIS
Identity
[4] The claimant established his personal identity and nationality on a balance of probabilities, through his testimony and a copy of his Indian Passport.[2]
Nexus
[5] The claimant allegedly fears for his life due to an imputed political opinion of being a militant. As such, his claim has been analyzed pursuant to section 96 of the IRPA.
Credibility
[6] In assessing the credibility of the evidence presented by the claimant in support of his refugee claim, the panel is guided by the principles established in the Federal Court of Appeal’s decision of Maldonado.[3] The principle asserted in Maldonado is that “when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness.” The claimant testified in a spontaneous, persuasive, and straightforward manner and there were no major inconsistencies in his evidence that were not reasonably explained. The claimant’s testimony was relevant and probative toward establishing his credibility.
[7] The claimant testified that he is a XXXX and XXXX in Punjab. The claimant testified that he assisted a young man (F.K) to gain employment at the place that he worked, and he also provided shelter for him between XXXX to XXXX 2014. The claimant testified that F.K’s friends often visited F.K at the claimant’s place even though the claimant did not know them personally. The Punjab Police alleges that F.K was linked with militants. The claimant testified that he has been unlawfully arrested twice, tortured, and falsely accused of being a militant by the Punjab police. The claimant testified that the Punjab police had to be bribed heavily before they released him and that they took his photograph, fingerprints, and signature on blank sheets of paper. The claimant testified that asides the two unlawful arrests, the Punjab police often harassed and raided his house and questioned him about militants. The claimant testified that the Punjab police claimed that the militants in their custody admitted links with the claimant, and that the militants in their custody, who were F.K’s friends had the claimant’s name in their diaries because they visit F.K at his home.
[8] The claimant testified that he has no links to militants, and he is nota militant. The claimant testified that he became a target of the Punjab police because he provided shelter to F.K, and welcomed F.K’s friends as guests. The Punjab police officers claim that F.K and his friends are militants. The claimant testified that the Punjab police became more aggressive with him when they discovered that he consulted an advocate for legal recourse. The claimant testified that the Punjab police physically assaulted him and asked him about the location where militants keep their weapons and where F.K and friends are located, and they assaulted him because he did not know and could not provide the answers that the Punjab police wanted. The claimant testified that the police harassed and exploited his relatives in Chandigarh. The claimant testified that the Punjab police believe that he is a militant aiding the militants in India while he is abroad and that they continue to harass his relatives about when he would return.
Delay In Claiming
[9] The claimant arrived in Canada in XXXX 2014, and he sought refugee protection in May 2019. The claimant explained that he delayed seeking protection because the agent that assisted him in fleeing India, told him he should only speak with a particular set of people and agents. He explained that he trusted the agent and paid for the services of the agents, who then delayed and threatened him multiple times. The agency never got the work permit that they promised to assist him with, and they deceived and defrauded him. The claimant provided a copy of an article corroborating that the agency had defrauded many people, the article is located in exhibit 5. The panel is empathetic about the deceit and exploitation that the claimant faced at the hands of these agents. However, the panel finds that the explanation is not reasonable because he faced a risk of getting remove to a country that he feared and because waiting almost five years for uncooperative agents is not reasonable. The panel finds that it is reasonable to expect that the claimant should have sought out alternative professional immigration advice to avoid the risk of being removed. The panel draws an adverse finding in this regard. However, this adverse finding does not outweigh the cumulative credible evidence in this claim.
[10] Apart from his oral testimony, the claimant has also submitted corroborating documentary evidence to support his claim. This evidence is part of Exhibit 4. The panel has no reason to doubt the genuineness of these documents and accepts them as genuine and the panel assigns the documents high weight due to their probative value and relevance. Exhibit 4 contains but is not limited to the following documents:
- Affidavit from the claimant’s wife: corroborating the claimant’s allegation of unlawful arrest, continuous harassment of the claimant and his, wife and relatives by the Punjab and Chandigarh police and a continuing interest in the claimant by the Punjab police. the affidavit also corroborates the claimant’s intention to seek legal resolution by consulting an advocate. The affidavit also states that the Punjab police have now claimed that the claimant must be a militant that is assisting other militants from outside India.
- Affidavit from the claimant’s aunt: corroborating the claimant’s allegations, including the claimant’s move to Chandigarh to avoid harassment from the Punjab police and the Chandigarh police’ search for the claimant.
- Affidavit from the Sarpanch: corroborating the details of the two unlawful arrests of the claimant by the Punjab police. The bribe paid for the release, the false accusations that the claimant is linked to militancy and the continuing interest in the claimant by the Punjab police.
- Flyers and posters that corroborate that the claimant is a XXXX.
[11] Given that there are no serious credibility issues with respect to the claimant’s allegations, coupled with the documentary evidence set out above, the panel finds on a balance of probabilities that the claimant has been falsely accused by the Punjab police of being a militant because he provided shelter to a suspected militant, F.K. and for hosting F.K’s friends who are suspected to be militants too. The panel finds that the claimant has established his subjective fear of persecution based on a perceived political opinion as a militant.
Objective Evidence
[12] The claimant has established his subjective fear and the panel finds that the subjective fear is objectively well founded by the documents in the National Documentation Package (NDP) located in exhibit 3.
[13] The National Documentation Package (NDP) corroborates police abuse being a significant human rights concern in India. Item 2.1 of the NDP, The US Department of State report refers to extrajudicial killings, torture, arbitrary arrest, and detention by police, as well as widespread corruption and impunity. Item 10.1 of the NDP states that the police use Torture to punish, to gather information or to coerce confessions with impunity. Those seeking accountability for police abuse often face intimidation and threats. In item 2.1 of the NDP there are reports about security forces torturing, raping, and mistreating insurgents, and alleged terrorists in custody, as well as reports of government agents committing extrajudicial killings of suspected criminal and insurgents. Item 4.9 of the NDP reports that Punjab police believes that militancy is returning to the state. Item 12.4 reports that Sikh youths were arrested by Punjab police for allegedly attempting to revive militancy in Punjab. The same item 4.9 of the NDP further reports that there has been regular arrest of alleged terrorists often based on false charges and the arrests are used as a tool to silence or harass political opponents.
[14] Item 1.4 of the NDP states that certain individuals are often charged with terrorism related cases which can result in being detained for years before being released due to a lack of evidence. Item 4.9 of the NDP reports that there are several notable examples of everyday people who are suspected of associating with Sikh militants and being arrested under ostensible and unverifiable evidence. There are some accused that are sentenced to prolonged sentences including life in prison.
[15] Item 10.1 of the NDP corroborates the allegation of the police not following proper arrests procedures, which makes suspects more vulnerable to abuse and cover up of police mistreatment.
There has been failure to hold police accountable for custodial deaths as internai departmental inquiries to examine wrongdoing rarely find the police culpable. This same item of the NDP supports the allegation that families of victims of police mistreatments leading to custodial deaths, seeking justice often face intimidation and threats. There is information about the persistence of custodial torture and ill-treatment by the police. While there is legislation in place on how lawful arrests should be made, the lack of training and police reforms leads to disregard of the legislation by the police.[4] There are also instances where police officiais are said to intentionally give false evidence and lay false charges against a suspect. Item 10.7 of the NDP gave instances of where terror cases have resulted in acquittais, where the court concluded that false charges were levelled against suspects.
[16] The panel finds that the claimant’s subjective fear is objectively well-founded, and that on a balance of probabilities the claimant faces a serious possibility of persecution in India based on an imputed political opinion.
State Protection
[17] In all refugee claims, a state is presumed to be capable of protecting its citizens unless there is clear and convincing evidence to the contrary. The claimant has been arrested, harassed, falsely accused, and tortured on false accusations of being linked to militancy by the Punjab Police. The Punjab Police force is the agent of persecution. The claimant tried to seek legal recourse and resolution to the Punjab police officers’ harassment and raids by speaking to an Advocate and the Punjab police discovered this and arrested the claimant a second time. The Punjab police were more aggressive with him and falsely accused him of being a militant and attempting to make false complaints against the Punjab police.
[18] Where agents of the state are the persecutors, claimant’s efforts to seek state protection need not exhaust all avenues of recourse. As set out above, there is objective country evidence indicating a lack of professionalism, high level of abuse and misconduct, and severe corruption and impunity issues within the police forces in India.[5] Further, Item 1.5 of the NDP also confirms that corruption is widespread among all levels of government in India and corruption remains a part of daily life across India with facilitation payments and bribes common, particularly at the local level.[6] Item 4.9 of the NDP reports states that the Punjab police continues to violate the human rights of Sikhs by arresting Sikh youths illegitimately and labelling them with blanket term ‘dangerous terrorist’. As a result, there is an unwillingness to protect citizens against police misconduct generally. The panel finds that it would be objectively unreasonable for the claimant to seek the protection of the state considering their particular circumstances. As a result, the panel finds that the claimant has rebutted the presumption of state protection.
Internal Flight Alternative (IFA)
[19] The panel identified Kolkata and Mumbai as IFAs at the beginning of the hearing. For a refugee claim to succeed, the claimant has the burden to establish that there is no viable internal flight alternative (“IFA”) within his country of nationality. The test for an IFA was articulated by the Federal Court of Appeal in Rasaratnam.[7] For a claim to succeed, claimant bears the burden of satisfying the panel, on a balance of probabilities, that a proposed IFA:
- is not safe from a serious possibility of persecution or from being personally subject to a danger of torture, a risk to life or a risk of cruel and unusual treatment or punishment; or,
- is objectively unreasonable or unduly harsh in all the circumstances, including those particular to the claimant.
[20] The Punjab Police force is the agent of persecution, and the panel has considered whether the Punjab police in India has the means and motivation to track down the claimant in Mumbai and Kolkata. According to the Associate Professor in item 12.8 of the NDP, security services are more likely to focus on separatists or militants because they represent a “perceived political threat to the unity of India.” In item 12.8, a WSO representative states that terrorists are seen as anti national can be legitimately targeted for violence. The objective evidence shows that the police as government authorities have the means to pursue the claimant throughout India.
[21] The claimant testified that he is famous because of his XXXX and XXXX and that in Canada some people recognize him and ask for selfies, thus he would be at risk of being recognized anywhere in India. He testified that he would be easily recognized in other parts oflndia due to his popularity in the Punjab. The claimant testified that after his release from the second unlawful arrest and detention by the Punjab police, he fled to his relatives’ place in Chandigarh. During his time in Chandigarh the Punjab police harassed his wife and relatives leading them to tell them where the claimant was in Chandigarh. The Chandigarh police raided his relatives’ place and arrested his relatives in Chandigarh based on the information they got from his relatives in the Punjab. The claimant has shown that the Punjab police have continuing interest in him by periodically inquiring about him from his relatives. The claimant testified that the Punjab police inquired about him from his wife and relatives as recently as last month.
[22] The Crime and Criminal Tracking Network and Systems (CCTNS) is a database with information on crime and criminals to interconnect police stations across the country.[8] The aim of the CCTNS is to create a nationwide network that integrates data and records of crime, but it appears to still be a work in progress. According to the June 2018 RIR, while 94% of police stations across India have CCTNS hardware, there are varying levels of implementation of the CCTNS in different states and large disparity in efficiency between police stations.[9] The one area where there appears to be the most robust inter-state police communication is in respect of major crimes like terrorism.[10] Similarly, surveillance schemes implemented in India are particularly focused on terrorism.[11] The police falsely accuse the claimant of being linked to militants and terrorists and so the panel finds on a balance of probabilities that the claimant is considered a persan of interest to the Punjab police. The panel finds that there is a high possibility that the Punjab may use the inter-state police communication in regard to the claimant because the false accusation is in regard to major and serious crimes like terrorism, and militancy.
[23] The panel has observed that the objective documentary evidence differs on the extent to which the CCTNS is accessible to and used by police across India. However, there is sufficient evidence contained within the NDP to establish that the CCTNS exists in at least some police stations in the states of Mumbai and Kolkata, where the proposed IFAs are located.[12] The NDP also gives some indication that during tenant verifications, tenant information forms are used by police superintendents to inquire in other states as to the criminal history of the tenant and that, while slow, according to some sources responses to these inquiries are generally eventually received.[13] Tenant verifications are routinely conducted for the purpose of confirming that tenants are not wanted criminals, terrorists, or fugitives from the law.[14] The panel finds that the police have the means and ability to find the claimant anywhere in India.
[24] Given that the claimant has established that the Punjab police have both the means and motivation to pursue him in the IFAs proposed, the panel finds, on a balance of probabilities, that there is a serious possibility of persecution in the proposed IFAs because the claimant is perceived to be a militant who is aiding his co-militants from outside India. The Punjab police continue to harass his family and relatives to inquire about him. The Panel finds that the claimant has established that he faces a serious possibility of persecution throughout India and that there is therefore no viable internal flight alternative for him. Since the first prong of the analysis has not been met, there is no need to assess the second prong.
CONCLUSION
[25] Having considered all the evidence, the panel concludes that the claimant has established that he would face a serious possibility of persecution on a Convention ground should he return to India as set out in section 96 of IRPA. His refugee claim is therefore accepted.
(signed) Moyosore Sadiq-Soneye
October 7, 2022
[1] Immigration and Refugee Protection Act, S.C.2001, c. 27.
[2] Exhibit 1.
[3] Maldonado, Pedro Enrique Juarez v. M Cl. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
[4] Exhibit 3: National Documentation Package, India, 30 June 2022, tab 10.1: “Sound by Brotherhood”: India’s Failure to End Killings in Police Custody. Human Rights Watch. Jayshree Bajoria. 19 December 2016.
[5] Exhibit 3: National Documentation Package, India, 30 June 2022, tab 2.1: India. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021.
National Documentation Package, India, 30 June 2022, tab 9.8: Transparency of Information about Arrests and Detentions. Implementation of Section 41C of the Code of Criminal Procedure, I 973: A Scoping Study of Compliance across 23 States and the UT of Delhi. Commonwealth Human Rights Initiative. 22 June 2016. &
National Documentation Package, India, 30 June 2022, tab 9.9: Extrajudicial detention, including instances of torture by authorities; state response and recourse available to victims; documents issued to persons detained or interrogated by police (2016-April 2018). Immigration and Refugee Board of Canada. 24 May 2018. IND106099.E.
[6] Exhibit 3 – NDP, India, 30 June 2022, Tab 1.5: DFAT Country Information Report: India, Australia. Department of
Foreign Affairs and Trade, 10 December 2020.
[7] Rasaratnam v Canada (MEI), [1992] 1 FC 706 (FCA).
[8] Exhibit 3, NDP, item l 0.6: Surveillance by state authorities; communication between police officers across the country, including the use of CCTNS (IND106120.E)
[9] Exhibit 3, NDP, item 10.6: Surveillance by state authorities; communication between police officers across the country, including the use of CCTNS (IND106120.E)
[10] Exhibit 3, NDP, item 10.2: Communication between police officers across the country (IND 105494.E), May 2016.
[11] Exhibit 3, NDP, item 10.6: Surveillance by state authorities; communication between police officers across the country, including the use of CCTNS (IN Dl 06120.E)
[12] Exhibit 3-NDP, India, 16 April 2021, item 10.13: Police databases and criminal tracking, including relationship with the Aadhaar systems and tenant verification; capacity to track persons through these systems (2019-June 2020), Immigration and Refugee Board of Canada, IND200259.E. I0. I
[13] Exhibit 3-National Documentation Package, India, 16 April 2021, tab 14.8: Requirements and procedures for tenant registration (or tenant verification), including implementation, particularly in Delhi, Mumbai, Kolkata, and Bengaluru (2016-May 2019), Immigration and Refugee Board of Canada, 14 May 2019, INDI06289.E.
[14] Exhibit 3: National Documentation Package, India, 16 April 2021, tab 14.8: Requirements and procedures for tenant registration (or tenant verification), including implementation, particularly in Delhi, Mumbai, Kolkata, and Bengaluru (2016-May 2019), Immigration and Refugee Board of Canada, 14 May 2019, INDI06289.E.