2022 RLLR 81

Citation: 2022 RLLR 81
Tribunal: Refugee Protection Division
Date of Decision: March 9, 2022
Panel: Andrew Hwang
Counsel for the Claimant(s): Gaurav Sharma
Country: India
RPD Number: TC1-15831
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision for the claimant, XXXX XXXX XXXX XXXX, file number TC1-15831.  You are claiming to be a citizen of India and are seeking refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.  I have considered your testimony and evidence in this case and I’m ready to render my decision orally.  I find that you are a Convention refugee.

[2]       The specific allegations of your claim can be found in your Basis of Claim form in Exhibit 1.  In summary, you allege that you fear persecution by the local police because they are falsely accusing you of aiding militants after passengers from your taxi evaded capture at a checkpoint.  You believe the police are targeting you simply because you are Muslim. 

[3]       You further allege that you have received anonymous calls threatening you to not to cooperate with police at the risk of harm.  You report that people back home have said police have asked about you and would still be interested in you and believe that you will not be safe should you return to India.

[4]       Your personal identity as a citizen of India has been established by a copy of your Indian passport in Exhibit 1.

[5]       I find that there is a link between what you fear and a Convention ground, namely your imputed political opinion for false allegations of militancy links and your religion for being Muslim.

[6]       In terms of your general credibility, I find you to be a credible witness and therefore I believe what you have alleged in your oral testimony and in your Basis of Claim forms.  Your testimony was straightforward, sincere, and unembellished.  I did not find any significant or relevant discrepancies or omissions that would go to the core of the claim. 

[7]       You have established on a balance of probabilities that you are a genuine follower of the Muslim faith, that you were transporting three passengers in your taxi to Mumbai Airport and were stopped at a police check point, that two of the passengers ran and evaded police capture upon being questioned about their travel plans.  That the police arrested, beat, and falsely accused you of being linked to those passengers and militants, that police had invoked your Muslim faith as grounds of suspecting and disbelieving you, that after your release you received anonymous threatening calls warning you not to cooperate with police, that when you reported such calls the police further allege you were involved with the Islamist militant group Lashkar-e-Taiba.  That police back home have asked your family of your whereabouts and are still interested in apprehending you and that you will face risk of harm at the hands of police on false charges should you return to India. 

[8]       You provided documents that support your claim in Exhibit 5.  Letter dated XXXX XXXX, 2021, from The XXXX XXXX XXXX XXXX XXXX confirming your membership.  Medical certificate and prescription from XXXX XXXX of your hospitalization from XXXX XXXX to XXXX, 2017, after your release from police detention, and an affidavit dated XXXX XXXX, 2021, by the (inaudible) describing your experience with the police and the difficulties of being Muslim in Gujarat.  I find your corroborating evidence in support of your claim to be credible and trustworthy, as such I give these documents full weight in support of your allegations. 

[9]       I have also asked why you did not provide evidence from your family such as an affidavit from your wife and parents since you testified that they had knowledge of your experiences and helped to make the decision for you to flee the country.  You explained that you were afraid to get your family in trouble with the police if you asked them to send evidence.  I find your explanation to be reasonable and I accept it.  For the above reasons I find that you have established your subjective fear and that there is a link between what you fear and a Convention ground, specifically imputed political opinion, and religion. 

[10]     The National Documentation Package for India shows that while India is a multi-party democracy, the government led by Prime Minister Narendra Modi and his Hindu nationalist BJP party has presided over discriminatory policies and increased violence effecting the Muslim population. 

[11]     Colonial-era and other laws are increasingly invoked to penalize perceived criticism of the government by ordinary citizens.  Activists, Muslims, and members of other marginalized communities are routinely charged with sedition for criticizing the government and it’s policies.  Religious minorities are especially vulnerable to the threat of communal violence.  Muslims while less than 15 percent of the population have typically made up the majority of the victims.  Government officials can be indifferent or complicit in acts of targeting religious minorities. 

[12]     In 2019, Forbes Magazine claimed that discrimination of religious minorities in India is far reaching and deeply enshrined in law.  The article cited anti-conversion and anti-cow slaughter laws being used to discrimination against religious minorities or to justify extrajudicial killings, violence, and forced conversions of non-Hindus to Hinduism. 

[13]     Hindu nationalist groups increased feelings of freedom under the present government has led to an increase in violence and intimidation vis-à-vis the Muslim minority and to the establishment of a majoritarian Hindu discourse.  Hindu nationalist groups have increased their influence while the government has done little to avoid the spread of vigilante violence.  As episodes of mob violence and lynching of Muslims has intensified, the government’s reaction has been half hearted, societal violence based on religion and cast on religiously associated groups continue to be a serious concern.  

[14]     As such, I find that your subjective fear has an objective basis and that you have a well-founded fear of persecution.

[15]     States are presumed to be capable of protecting its’ citizens.  To rebut this presumption there must be clear and convincing evidence that state protection is inadequate.  A study of the perceptions and experiences of policing in India of Muslim citizens present a picture characterized by discrimination, various degrees of harassment, as well as coercive containments of Muslim neighbours and activities. 

[16]     Muslim citizens in the study conveyed a pervasive sense of actively practiced discrimination, victimization, and coercive targeting by the police based on their distinct identity as Muslims.  They feel they are both individually and in groups under constant suspicion of supporting anti-national activities, surveilled, and subject to higher levels of intrusive policing.  Some of the key findings include police target and victimized Muslims based on their identity revealing a distinct bias. 

[17]     Police perceived Muslim concentrated neighbourhoods are subversive and criminalized holding the community constantly suspect.  Muslim areas are surrounded by police stations to keep tabs on the community but also as markers of an unofficial boundary between Muslims and other areas.  There is ample documentation establishing police bias against Muslims. 

[18]     Numerous judicial commissions and civil society reports demonstrate targeted discrimination against Muslims by police in the context of communal violence and the last two decades of process as punishment in terror prosecution.  In another study about half of the police personnel reported that Muslims are likely to be naturally prone towards committing violence.  Having considered your religious profile, the police as agents of persecution, your experience in detention on false allegations, the response of the police to reported threats, and the country conditions documentation, I find that you have on a balance of probabilities rebutted the presumption with clear and convincing evidence.  I therefore find that state protection in India is inadequate and would not be reasonably forthcoming to you.

[19]     I’ve also considered whether a viable Internal Flight Alternative exists for you and find that there is a serious possibility of persecution throughout India.  The rise in Hindu nationalism in India has fostered a climate of hate and discrimination against Muslims and other minority communities leading to an increase in violent attacks against them in many parts of the country. 

[20]     The state of violence against Muslims was happening in part because there is a ruling political party and a set of militant Hindu groups like the RSS, Bajrang Dal, and Vishwa Hindu Parishad, who are operating in society to defend conservative Hindu norms.  The federal government and state governments are turning a blind eye to these acts of violence or enabling them that directly undermines the rule of law. 

[21]     You have been accused of links to militants by Gujarat Police and our now alleged to be aiding Lashkar-e-Taiba.  This will increase the likelihood of being targeted by police wherever you may relocate in the country.  As such I find on a balance of probabilities that you will not be safe anywhere in India.  For this reason I find there is no viable Internal Flight Alternative.

[22]     Based on the totality of the evidence, I find that you are a Convention refugee as you face a serious possibility of persecution in your country, and therefore I accept your claim.

——— REASONS CONCLUDED ———