Citation: 2022 RLLR 66
Tribunal: Refugee Protection Division
Date of Decision: April 22, 2022
Panel: Gregory Israelstam
Counsel for the Claimant(s): Luisi Walid El Haj
Country: India
RPD Number: TC2-02835
Associated RPD Number(s): TC2-02836, TC2-02837
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: These are the reasons for the decision under the Immigration and Refugee Protection Act concerning XXXX XXXX XXXX, XXXX XXXXandXXXX XXXX XXXX.
[2] XXXX XXXX XXXX, his spouse XXXX XXXX and their son XXXX XXXX seek protection pursuant to Section 96 of the Immigration and Refugee Protection Act. Their claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules.
[3] At the hearing, XXXX XXXX XXXX acted as the designated representative for XXXX XXXX, who was a minor at the time of the claim and the time of the hearing.
[4] The allegations of the claim can be found in the claimants’ Basis of Claim forms and in the testimony of the two (2) adult claimants. The claimants allege that they fear persecution on the basis of political opinion at the hands of state authorities in India. The claimants allege that should they return to India, they would be subject to harassment, detention, false accusations and mistreatment by the police because the claimants are viewed as militant extremists for their support for Sikh Independence.
[5] All three (3) claimants have established a serious possibility of persecution on the Convention Ground of political opinion should they return to India pursuant to Section 96 of the Immigration and Refugee Protection Act. And therefore, all three (3) claimants are Convention refugees.
[6] At the outset of the hearing, I identified credibility as the primary matter for the hearing to focus on for the claimants. Credibility was an issue in so far as it related to the question of whether the claimants genuinely feared persecution in India.
[7] With respect to identity, on file at Exhibit 1 is a certified copy of the claimants’ passports from India. Through these documents and their testimony, the claimants have established their personal identities and their citizenship of India.
[8] With respect to credibility, claimants testifying under oath or affirmation are presumed to be telling the truth unless there are valid reasons to reject the testimony. In this case, I find no such valid reason which would lead me to dismiss the presumption of truthfulness. Both adult claimants were forthright and spontaneous in their testimony. Both were able to describe in considerable detail the history of harassment faced by the claimants prior to their decision to leave India. Where the claimants were not certain of an answer, the claimants did not attempt to embellish or exaggerate.
[9] The claimants submitted a number of documents tending to corroborate their allegations, including medical records showing the claimants were treated for injuries consistent with the claimants’ descriptions of mistreatment at the hands of the police. Other documents included confirmation of XXXX XXXX support of the S-A-D-A political party as well as affidavits from people who were aware of the claimants’ history in India. The claimants testified that they are supporters of the S-A-D-A party, a party devoted to the establishment of an independent Sikh homeland.
[10] XXXX XXXX testified that after the state election in XXXX 2017, during which the SADA candidate lost, the claimants’ home was vandalized. XXXX XXXX testified that he organized a rally later that year during which he gave speeches about Sikh history as well as denouncing the police and government for not doing enough about the drug problem in the region. The claimants testified that after this, the police began to demand that XXXX XXXX report to the local police station, where he was questioned, verbally and physically abused, accused of supporting militant Sikh separatists and accused of being involved in criminality. XXXX XXXX testified that the first time he was detained by police, he was only released the next day after the payment of a XXXX XXXX XXXX-rupee bribe.
[11] Both in their testimony and in their Basis of Claim forms, the claimants described a number of other incidents over the next eight (8) months where XXXX XXXX was called to the police station or arrested and held for questioning. During these detentions, XXXX did testify that he was verbally and physically abused and accused of being a militant or a criminal.
[12] A notable incident occurred in XXXX 2017 when the claimants attempted to visit relatives in Jammu and Kashmir. The claimants testified that they were stopped at a checkpoint, detained for a day and mistreated. One (1) of the claimants was sexually assaulted, and electric shocks were applied to the other claimant.
[13] As noted, I have seen nothing on file or in the claimant’s testimony that would lead me to reject the presumption that the claimants are telling the truth. I find on a balance of probabilities that the claimants did support the S-A-D-A political party, that they became targets of police and that they have been subject to harassment, detention, and mistreatment since then.
[14] I find on a balance of probabilities that the police continue to search for the claimants and that the claimants do have a fear of persecution at the hands of the police in India.
[15] Having found the claimants to have a fear of persecution, I turn to the question of whether this fear has an objective basis.
[16] Country condition reports in both Exhibit 3, the National Documentation Package for India, as well as those provided by the claimant in Exhibit 4, establish that the government of India is becoming increasingly concerned with Sikh separatists. Those who advocate for the Sikh homeland may be subject to official scrutiny or be labelled as anti-nationals. There are credible reports in country condition documentation that Sikh activists have been subject to arrest and mistreatment.
[17] I find that the claimants have established on a balance of probabilities that they would face persecution should they return to India. The claimants, therefore, have established that they face a serious possibility of persecution.
[18] With respect to the internal flight alternative, as the state is the agent of persecution and has control over all of India’s territory, I find that the claimants do not have a reasonable internal flight alternative within India where they could escape persecution.
[19 For similar reasons, I find that the claimants could not reasonably expect state protection. The claimants testified that they did seek assistance from the district commissioner and their member of the legislative assembly but that the harassment continued until they left India. I find that the claimants have established that the state is unable or unwilling to protect them against persecution.
[20] Based on the evidence before me and the testimony of the claimants, I conclude that all three (3) claimants have established a serious possibility of persecution on the Convention Ground of political opinion if they were to return to India.
[21] All three (3) claimants are, therefore, Convention refugees pursuant to Section 96 of the Immigration and Refugee Protection Act. And all three (3) claims for protection are accepted.
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