2022 RLLR 98
Citation: 2022 RLLR 98
Tribunal: Refugee Protection Division
Date of Decision: May 24, 2022
Panel: Lusine Unanyan
Counsel for the Claimant(s): Harneet Singh
Country: India
RPD Number: TC0-02135
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX, citizen of India, who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act“)i.
DETERMINATION
[2] I find that the claimant is a Convention refugee pursuant to section 96 of IRPA, as he has established a serious possibility of persecution on account of his political opinion.
ALLEGATIONS
[3] The claimant’s allegations are set out in his Basis of Claim (BOC) formii and supplementary addendumiii. In short, the claimant alleges fear of the Indian government, including Congress party and the police, due to his pro-Khalistan views and support of the Shiromani Akali Dal (SAD) (Mann) party.
ANALYSIS
Identity
[4] The claimant’s identity as a citizen of India is established on balance of probabilities based on his testimony and documentation provided, including copy of a copy of his passport, and copies of his driver’s license and Aadhar cardiv.
[5] I acknowledge that when the claimant arrived in Canada, he did not have his passport. The claimant alleges that his passport was taken by the agent who facilitated his travel and that he did not have the passport when boarding the plane to Canada. He does not know how he boarded the plane but states that the agent arranged all parts of his travel. Upon considering all of the evidence, including the claimant’s testimony and copies of identification documents provided by the claimant, I am satisfied on a balance of probabilities as to the claimant’s identity.
[6] It is noted that the claimant’s father was born in Pakistan. After reviewing Pakistan citizenship rulesv, I have concluded that the claimant does not have any automatic right of citizenship in Pakistan as required under the Williams testvi, therefore the only country of reference in this claim is India.
The Claim is not Excluded under Article 1E of the Refugee Convention
[7] The claimant testified that he worked in UAE and Saudi Arabia for approximately four years. I have assessed whether the claimant is excluded under Article 1E of the Refugee Convention and considered whether the claimant has status in a country where he resided that is substantially similar to that of the country’s nationals.vii I find that the claimant’s residency status in Saudi Arabia and UAE was temporary and tied to his former employment, and he has no legal right of return. I find that the claimant does not have status in Saudi Arabia and UAE that is substantially similar to the nationals of these countries. Therefore, the Article 1E exclusion does not apply to this claim.
Nexus
[8] I find there to be a nexus between the harm the claimant fears and the Convention due to his political opinion as a support of SAD and political views in favour of a separate state of Khalistan. Accordingly, this claim has been assessed under s. 96 of IRPA.
Credibility
[9] The claimant testified at the hearing on the major elements of his claim, as presented in his narrative. His testimony with respect to the core allegations was relatively straightforward and devoid of inconsistencies or contradictions.
[10] The claimant testified that he fears harm from the Congress party and the police in India on the basis of his support for SAD (Mann) party and pro-Khalistan political views. He began actively supporting the SAD (Mann) party in 2017. He also converted to the Sikh religion around the same time. At the hearing, the claimant credibly testified about his conversion and the reasons for joining the party. I also note that the claimant’s wife was born into a Sikh family, and the claimant’ s son has been raised Sikh from birth.
[11] While in India, the claimant campaigned and canvassed votes, participated in meetings and rallies, propagated pro-Khalistan views, and otherwise discouraged others in the community from supporting other parties. The claimant has continued his support of SAD from Canada by attending events in Montreal where he resides.
[12] The claimant alleges being targeted by individuals associated with the Congress party due to his political views and activities. He alleges being attacked by unknown individuals associated with the Congress party twice, in XXXX and XXXX of 2019. The claimant alleges that the agents of persecution are still inquiring about his whereabouts from his family members and neighbours.
[13] The claimant further submits that sometime after his departure, the police began attending his family home and have alleged that they suspect him to have ties with pro-Khalistan militants. The claimant believes that the police had been co-opted into imposing false allegations against him by the Congress party members, who at the time were still in power in Punjab.
[14] Apart from oral testimony, the claimant has presented corroborating evidence to support his claims, namely a copy of his party membership card, an affidavit from his mother and a letter from the SAD party, both of which provide generally consistent information to the allegations advanced by the claimant. A medical note was also provided, which outlined the medical treatments received by the claimant following the alleged attacksviii. I accord weight to these documents in supporting the claimant’s allegations.
Summary of findings
[15] Taking into account the totality of the evidence, I find that the claimant has established, on a balance of probabilities, that he is a supporter of the SAD party, that he holds political views that support secession of Khalistan, and that he engages in social and political events and activities demonstrating this support. I accept that he would continue to openly express these views if he were to return to India.
[16] I accept, on a balance of probabilities, that due to his political opinion and activities, he suffered attacks by individuals associated with the Congress party, who in turn may have co opted the local police into targeting him by falsely accusing him to be involved with militants.
[17] I find that the claimant has established his subjective fear of persecution on a balance of probabilities.
The claimant ‘s journey to Canada not sufficient to outweigh credibility
[18] I acknowledge that the claimant arrived in Canada nine months after leaving India and appeared to have a convoluted account of his travels when questioned by CBSA. The claimant submits that his passport was taken by the agent who arranged all parts of his travel journey throughout the nine months. At the hearing, the claimant was questioned extensively in regards to his travel journey and surrounding circumstances. I have considered all of the evidence, including the claimant’s testimony. While the reasons behind the unusual travel route are not known, I accept on a balance of probabilities, that the claimant engaged the services of the agent to flee India, and that his travel journey was directed by the agent.
[19] Furthermore, the claimant testified to having spent over six months in Mexico, on his way to Canada. He testified that the goal was to reach Canada, and that he did not know why the agent chose to have him stay in Mexico for those months. He testified to being kept in the dark as to the travel arrangements and status of his travel documents, including a Canadian visa.
[20] I have some concerns about the claimant’s testimony about the months he spent in Mexico, which was vague and lacked clarity. The fact that the claimant was less than clear about his time in Mexico does raise some concerns about the overall credibility of his testimony. However, when this is weighed against the credible evidence going to the core aspects of his claim, I find it insufficient to rebut the presumption of truthfulness with respect to his core allegations and subjective fear.
Well-Founded Fear of Persecution
[21] In order to be considered a Convention Refugee, the claimant must demonstrate that he has a well-founded fear of persecution, which includes both a subjective fear and an objective basis for that fear. Based on his evidence and the country condition documents, I find that the claimant has a well-founded fear of persecution for the following reasons.
[22] As previously stated, the claimant alleged that the police were co-opted into targeting him by Congress party members, as the Congress party was in power at the time of the events. It should be noted that as per RPD disclosed Times of India news articleix, the Congress party is no longer in power, and the AAP won the elections in March 2022. At the hearing, the claimant was asked why he believed he would still be at risk given the change in power. He testified that despite the change in the ruling party in Punjab, police still oppose SAD, so they would continue to target him due to his ongoing support of SAD. There is no objective evidence before me to support the claimant’s proposition, either from the claimant and his counsel, or from the India National Documentation Package (NDP). Therefore, I am notable to give weight to the claimant’s speculation in this regard. However, I find that the claimant still faces a serious risk of persecution based on his political views, for the following reasons.
[23] The claimant fears that, if he returns, he will face persecution at the hands of the Indian government due to his political views and activities.
[24] The reports in the National Documentation Package (NDP) for India note that politically, India is becoming significantly less tolerant of any expression of political dissent or criticism. A Human Rights Watch report notes that the government has been increasingly harassing, arresting, and prosecuting critics in recent years, and that authorities are bringing politically motivated cases against critics and opponentsx. Furthermore, a report on the situation of Sikhs notes that suspected Khalistan supporters are subjected to increased detention and can, in many cases, face severe persecution throughout India. The report states: “While ‘simple support of Khalistan is technically legal in India’, in practice suspected Khalistan supporters are ‘harassed by police and intelligence agencies. And, in many cases, falsely implicated in criminal cases, which take years to resolve’.”xi
[25] Another Response to Information Request reports that individuals who support or advocate for Khalistan are monitored, “often included on police lists for heightened scrutiny,” and charged in terrorism-related cases, which can result in being detained for years before being released due to lack of evidencexii. There are further reports in the NDP that Indian authorities may place Sikh political figures or activists in “preventative” custody or detention in order to suppress perceived conflict or disturbances, such as during times leading up to major events or ralliesxiii.
[26] Furthermore, there are numerous reports in the NDP of Sikh and pro-Khalistan activists being implicated in false cases or arrested on trumped up charges. The United States Department of State Report indicates that police in India arbitrarily arrest persons sometimes without registering their arrests. A person may be detained for up to a year without charge or trial if the police consider the persona “security risk”.xiv
[27] I find that the above cited objective evidence establishes that SAD members and those who are considered to support an independent Khalistan face serious human rights abuses that amount to persecution at the hands of the Indian government. The claimant has been attacked by political opponents and individuals working for the Congress party. Accordingly, I find that there is an objective basis to the claimant’s allegations and accept, on a balance of probabilities, that the claimant has a well-founded fear of persecution in India.
State Protection
[28] Except in situations where the state is in complete breakdown, states are presumed capable of protecting their citizens. In this case, the agents of persecution are a political party (Congress) and police. The claimant attempted to seek assistance from the police following the second attack in 2019, and the police did not assist him.
[29] Given the identity and profile of the agents of persecution, I find that state protection would not be reasonably forthcoming. Accordingly, I find that the presumption of state protection has been rebutted.
Internal Flight Alternative
[30] Internal flight alternative (IFA) has been considered and was raised with the claimant at the hearing. Mumbai and Bengaluru were proposed to the claimant as possible IFA locations.
[31] Once the issue of an IFA has been raised, the onus is on the claimant to show that he or she does not have an IFA. To find a viable IFA, I must be satisfied that there is no serious possibility of the claimant being persecuted or, on the balance of probabilities, being subjected personally to a danger of torture or a risk to life or cruel and unusual punishment in the proposed IFA. Furthermore, the conditions in that part of the country must be such that it would be reasonable in all the circumstances, including those particular to the claimant, to seek refuge there.
[32] On the evidence before me, I find that there is a serious possibility of persecution for the claimant throughout India for the following reasons.
IFA – first prong
[33] The first question is whether the claimant would be safe in proposed IFAs. When asked whether he could live safely in either of the IFA locations, the claimant said that because of the nature of his political beliefs, he could not be safe anywhere in India.
[34] The claimant has testified that he would continue to support AD should he return to India.
[35] The documentary evidence demonstrates that the risk of persecution comes from the authorities themselves and is consistent throughout India. Sikhs who publicly express support for Khalistan are not safe throughout India.
[36] The RIR on the situation of Sikhs who support Khalistan outside of the state of Punjab confirms that vocal advocates for Khalistan outside of the state of Punjab are subject to attention by authorities, may face severe persecution, as well as harassment by police and false implications in criminal cases that take years to resolve. It also describes various arrests of Khalistan sympathizers in various states other than Punjabxv. Accordingly, I find that if the claimant was to relocate to the IFA, he would not be able to express his support for Khalistan in a peaceful, democratic manner, without facing a serious risk of persecution.
[37] Given the claimant’s political views and support of SAD, I find that he would face a serious possibility of persecution throughout India. While the claimant may not be targeted immediately upon relocation, if the claimant were to remain a public supporter of SAD as he had indicated, he would face more than a mere possibility of persecution at the hands of the authorities and other political opponents on an ongoing basis.
[38] Therefore, I find that the claimant faces a serious risk of persecution throughout India and that no viable IFA exists for him due to his political beliefs.
CONCLUSION
[39] Having considered all of the evidence before me, I find that the claimant has established that he would face a serious possibility of persecution in India on a Convention ground. Accordingly, I find the claimant to be a Convention refugee pursuant to section 96 of IRPA and accept his claim.
(signed) Lusine Unanyan
May 24, 2022