2022 RLLR 83

Citation: 2022 RLLR 83 
Tribunal: Refugee Protection Division 
Date of Decision: January 20, 2022 
Panel: Devin Macdonald 
Counsel for the Claimant(s): Tony Manglaviti 
Country: India 
RPD Number: TC1-12746 
Associated RPD Number(s): N/A 
ATIP Number: A-2023-01023 
ATIP Pages: N/A 

DECISION 

[1]      MEMBER: XXXX XXXX, the claimant, alleges to be a citizen of India and claims protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act.  

[2]      The details of the claimant’s allegations are set out in his Basis of Claim narrative, found at Exhibit 2, as well as the updated narrative, which is found at Exhibit 6. In short, the claimant alleges that he fears persecution by authorities in India because of his political participation in the Shiromani Akali Dal party, his opposition to a member of the legislative assembly, and because of his support for an independent Khalistan. He alleged that authorities perceive him to be supportive of Khalistani militants. The claimant alleges that he was politically active in India and always supported an independent Khalistan. He alleges that he previously supported the Congress Party starting in 2007 because he felt the Shiromani Akali Dal, the Dal Party, did not keep their promises when they were elected, and the claimants alleges he had conflicts within the Congress Party with a member of a legislative assembly for his constituency for similar regions, which is the MLA was not keeping campaign promises. The claimant indicated that he was briefly detained by police on three occasions and intimidated. However, those detention did not result in a subjective fear, which made India.  

[3]      The claimant alleges that he visited Canada in XXXX 2008 to attend a family birthday party and then extended his visit with the intention of obtaining a work permit on his brother-in-law’s advice. The claimant alleges that while in Canada, he attended a gurdwara, where he discussed issues with other attendees, including the Sikh Referendum 2020 and the Shiromani Akali Dal (Mann) party. The claimant alleges that he had subsequent conversations with his brother, which resulted in his brother shifting support from Congress to Shiromani Akali Dal (Mann) party. The claimant alleges that authorities detained his brother and accused the claimant of supporting Khalistani militarism from Canada. The claimant alleges that his wife suffered abuse from Indian authorities, the details of which will not be repeated here, and that she is now required to report to the police once a month. He alleges that he has lost contact with his brother since XXXX 2021, when his brother was attempting to relocate within India with the aid of a smuggler.  

[4]      The Panel finds the claimant is a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act. The claimant has established his personal and national identity on a balance of probabilities. The Minister provided a copy of the claimant’s passport issued by the Republic of India and seized by Canadian immigration authorities. The claimant’s testimony regarding his personal details was consistent with the details in the identity documents provided.  

[5]      The claimant’s fears stem from his political participation and his support for a political goal. As such, the Panel finds the claimant’s alleged fear has a nexus to the Convention ground, political opinion.  

[6]      The Panel finds that, on a balance of probabilities, the claimant is a credible witness. The Panel notes throughout the hearing, there were questions that had to be repeated to the claimant multiple times before he answered them directly, and the Panel finds that the claimant not directly answering questions until they were repeated multiple times was more a result of confusion than it was an attempt to mislead the Panel. The claimant’s testimony was materially consistent with this Basis of Claim form. There were some inconsistencies, which the claimant did correct at his first opportunity when he was testifying. Again, the Panel does accept the claimant’s explanation with these inconsistencies as that he misspoke or made a mistake, rather than that he was intending to mislead the Panel.  

[7]      The claimant did describe his political involvement and his support for the Congress Party in a fluid and consistent manner. He provided details about why he supported the Panel (sic) at first and why he became unsatisfied with the party. He also described his political involvement with the Shiromani Akali Dal (Mann) party and his support for an independent Khalistan in a rational and fluid manner. He had knowledge of the Mann Party, including its origins and its policy positions. The Panel finds that the claimant’s testimony in this regard weighs in favour of finding him to be a credible witness and a genuine supporter of an independent Khalistan.  

[8]      The claim provided corroborating documents in the form of affidavits from family members, his mother and his sister. He provided also affidavits from a friend and village XXXX. The claimant’s testimony was consistent with those documents and those documents were consistent with the allegations, and the Panel has no valid reason to doubt their authenticity. Now, the Panel notes that the locations that the affidavits were reportedly notarized in is consistent with the allegations. Specifically, the affidavit from his sister is notarized in XXXX, and the claimant had alleged that his sister traveled from Canada to XXXX in XXXX district in order to provide support to the claimant’s wife. As such, the Panel gives the documents weight and establishing the claimant’s allegations.  

[9]      Based on the totality of the documents in the claimant’s testimony, the Panel finds, on a balance of probabilities, that the claimant is an advocate it for an independent Khalistan, and as a result, he is a person of interest to authorities in India. As such, he has established a subjective fear of return to India.  

[10]      The country documentation on India is in line with the claimant’s allegations and establishes an objective basis for the claimant’s subjective here. Item 12.8, found in Exhibit 3, which is the National Documentation Package for India, states that simple support of Khalistan is not illegal in India, but in practice, suspected Khalistan supporters are harassed by police and intelligence agencies, and in many cases, falsely implicated in criminal cases, which can take years to resolve. The same document provides examples of individual similarly situated to the claimant. For instance, three Sikh youths were sentenced to life imprisonment for possessing pro-Khalistan literature. Item 4.10 of Exhibit 3 indicates that while Shiromani Akali Dal (Mann), referred to Amritsar in that document, is considered to be a regional party in Punjab. It’s also active outside of Punjab, and individuals who advocate for Khalistan are monitored and they’re often included on police lists for heightened security and often charged in terrorism-related cases, which can result in being detained for years before being released due to a lack of evidence. Active members of that party have been taken into custody or preventative detention prior to major events or rallies and held through various lengths of time ranging from one to seven days. Another Response to Information Request reports that Shiromani Akali Dal (Mann) members have been charged with dozens of sedation (sic) cases for publicly calling for a Sikh independent state. Additionally in line with the claimant’s allegations, the United Kingdom Home Office Report states that Sikh supporters of Khalistan are viewed as enemies by Hindu nationalists, who are supported (sic) to subject Sikhs to harassment and pressure them to reject religious practices and beliefs. So, the evidence cited above provides an objective basis for the claimant’s fear of return in India as a Sikh man with a track record of support for Khalistan and a Shiromani Akali Dal (Mann), and as well as someone with accusations of participation and Khalistani militancy from Indian authorities. As such, the Panel finds that the claim is well-founded.  

[11]      In any claim for protection, the responsibility to provide international protection only becomes engaged when national state protection is unavailable. So, absent a situation demonstrating a complete breakdown of the government apparatus, the state is presumed capable for protecting its citizens. In the present case, the Panel finds that adequate state protection is unavailable to the claimant in India from persecution from Indian authorities, including members of the police force in India. The Panel finds that it is unreasonable to expect the claimant to approach the state for protection. The state would be unwilling or unable to provide adequate protection to the claimant because it is the state itself that the claimant fears. As such, the Panel finds that the claimant has rebutted the presumption of state protection in his circumstances.  

[12]      A claimant must establish that they face persecution or harm throughout their country of nationality. In the present case, the Panel finds that an internal flight alternative does not exist for the claimant in India. The Panel’s conclusion is based on the credible evidence of the claimant establishing that he is a supporter of Khalistan and the country documentation in the National Documentation Package at Item 12.8, which states that supporters and perceived supporters us of Khalistan may be subject to persecution by Indian authorities throughout India. So, based on the foregoing analysis, the Panel has determined that the claimant has established that he faces a serious possibility of persecution on a Convention ground if he returns to India.  

[13]       The Panel therefore concludes that claimant is a Convention refugee under s. 96 of the Immigration and Refugee Protection Act. The claim is accepted. That concludes the reasons.  

——— REASONS CONCLUDED ———