2022 RLLR 99

Citation: 2022 RLLR 99 
Tribunal: Refugee Protection Division 
Date of Decision: January 28, 2022 
Panel: Allan Casimiro 
Counsel for the Claimant(s): Sarah L. Boyd 
Country: India 
RPD Number: TC0-04272 
Associated RPD Number(s): TC0-04285, TC0-04302, TC0-04303 
ATIP Number: A-2023-01023 
ATIP Pages: N/A 

REASONS FOR DECISION 
 
INTRODUCTION 
 
[1]       The claims of XXXX (the Principal Claimant – PC), her husband, XXXX (the Associate Claimant – AC), and the claims of XXXX and XXXX (‘the minor Claimants”), are joined. 

 
[2]        They claim to be citizens of India. They claim refugee protection pursuant to sections 96 and subsection 97(1) of the Immigration and Refugee Protection Act. 

 
[3]        The PC was appointed as the Designated Representative (DR) for the minor Claimants. 

 
[4]        Both adult Claimants testified at the hearing. 

 
[5]        Counsel submitted post-hearing documents and written representations under Exhibits 10 and 11 respectively. 

 
[6]        The panel also considered the Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution (Guideline 4) as it relates to the PC. 

 
ALLEGATIONS 
 
[7]        The PC’s allegations can be found in her Basis of Claim form (BOC), Exhibit 2.1, an addendum under Exhibit 5 and in testimony. The associate and minor Claimants rely on her narrative. 

 
[8]        In summary, the PC returned to India on XXXX 2019, to visit family. She stayed at her in-law’s home. 

 
[9]        The AC advised her that a friend of a friend (V) was looking for a place to stay in Chennai, for him and his wife. 

 
[10]       V came over alone to look at the place. 

 
[11]       He was subsequently arrested by the local state police. V allegedly informed the police that he had been living at the PC’s in law’s place since 2017. 

 
[12]       State police came and advised the PC that V was a very dangerous Liberation Tigers of Tamil Eelam (LTTE – a Sri Lankan militant group) agent. 

 
[13]       The police took the PC to the police station. She was put in a barred cell, alone and left overnight. 

 
[14]       The following morning, she was interrogated about her travel history, her life in the United States and connection to V. 

 
[15]       She was refused access to a lawyer and to her mother-in-law. 

 
[16]      She was kept there for several days; at one point she was sexually molested by three police officers. The assault was recorded. 

 
[17]       She was subsequently questioned by officers of the Central Bureau of Investigation (CBI). She was eventually released and told to not leave the country while at the same time keeping her passport. 

 
[18]       With the assistance of a local politician, she was able to get her passport back. Prior to the release of her passport, she was questioned once again by the CBI officer. Her mother-in-law was similarly questioned. 

 
[19]       In consultation with the AC, the PC travelled with the minor Claimants to Canada using their previously issued Canadian visas. The AC joined the family in Canada. 

 
[20]       They made a claim for refugee protection and continue to ask for Canada’s protection. 

 
DETERMINATION 
 
[21]       The panel finds the Claimants have established that they face a serious possibility of persecution in India on the basis of the adult Claimants’ perceived political opinion as supporters of the LTTE. Similarly, the minor Claimants face a serious possibility of persecution as members of the adult Claimants’ family. The panel therefore finds the Claimants are Convention refugees pursuant to sections 96 of IRPA and accept their claims. 

 
IDENTITY 
 
[22]       The Claimants’ personal and national identities as citizens of India had been established on a balance of probabilities through copies of their Indian passports under Exhibit 1. 

 
[23]       Additional identity documents were submitted under Exhibit 7. 

 
CREDIBILITY 
 
[24]      The panel finds on a balance of probabilities that the adult Claimants are credible regarding key elements of their claim. They testified in a straightforward manner regarding central elements of their claim. There were no inconsistencies or contradictions between their testimonies and their other evidence. The panel accepts on a balance of probabilities that the PC suffered harm at the hands of the Indian authorities. 

 
[25]       In India, the PC was questioned about the AC including what connections they both had with the LTTE and V. 

 
[26]      The AC, who was not present in India at the time the PC suffered harm at the hands of the Indian authorities fear that because he was involved in terms of arranging for accommodations for V that he too would be implicated as someone involved in supporting LTTE affiliated individuals. Similarly, the PC was questioned about him specifically as well. 

 
[27]       The adult Claimants fear that the minor children would also be targeted if they had left their children back in India. 

 
[28]       Counsel in her submissions note that security forces in India do not take particular care to protect children of suspects. This is evidenced by the fact that when the police came to the PC’s mother-in-law’s home on two occasions, the children were present there. 

 
[29]       Both adult Claimants fear family retaliation including to the minor children if they are wanted by the Indian authorities. 

 
[30]      The panel finds on a balance of probabilities that the Claimants have a subjective fear of persecution if they are returned to India. 

 
Objective evidence 
 
[31]       The panel finds that the Claimants’ subjective fear is also supported by the objective evidence. 

 
[32]       Asper Exhibit 3, Item 2.1, the law criminalizes rape against women in most cases. Despite these protections, rape is one of the fastest growing crimes in India. However, observers believe the number of rapes remain vastly underreported. 

 
[33]       It goes on to state that incidents of rape continue to be a persistent problem which includes rape by government officials. 

 
[34]       Sexual harassment is also a serious problem in India. 

 
[35]       Exhibit 3, Item 5.9 similarly states that gender-based violence against women is said to be widespread and compounded by patriarchal attitudes and gender stereotypes. 

 
[36]       Moreover, several sources describe the police as ineffective in protecting people who fear becoming victims of honour and that sources indicate that the police are reluctant to register the complaints or carry out investigations. 

 
[37]       In goes on to state that: 

 

Few police stations have specialized women’s mechanisms to address the concerns of women, including violence cases, and to provide the assistance and protection that is required during the investigation phase. Impunity for abuses committed by police officers and the need for civilian oversight was highlighted. 

[38]       In terms of the interest of authorities in combating links to terrorism, counsel’ s disclosure under Exhibit 8 demonstrates the continued interest of authorities as it relates to the LTTE specially in Tamil Nadu. An example was an article talking about the discovery of a human trafficking ring where authorities arrested an LTTE sympathiser and were looking into a possible LTTE angle given the link to the suspect. 

 
[39]       Another article talks about alleged links of two residents from Chennai to members of the LTTE. The same article indicates that the National Investigation Agency got details about the links to the LTTE when questioning the suspects. 

 
[40]       Moreover, another article suggests that the interception of a Sri Lankan boat with drugs and rifles may suggest an LTTE revival. 

 
[41]       This coupled with the discovery of a human trafficking route may add credence to the fear of some kind of an operational presence in an effort to revive the movement and possibly conduct future attacks. 

 
STATE PROTECTION 
 
[42]       In terms of state protection in this case, the agents of persecution are the Indian authorities. The panel thus finds that the presumption of state protection is rebutted. The objective documentary evidence indicates that while the government has taken some steps to combat corruption in the security forces, the police, military, and other officials have committed abuses against citizens, and a general culture of impunity exists. This is under Exhibit 3, items 2.1, and item 2.2. 

 
[43]       In addition to that objective evidence, the panel notes the reports that public officials are not regularly held accountable for human rights violations, and that despite receiving direction from the Supreme Court, states have not implemented reforms meant to reign in police abuses.i There are credible reports of corruption across all levels of government.ii As such, the panel finds adequate state protection would not be available for the Claimants. 

 
[44]       Documentary evidence regarding police co-operation among local, state, and national police is mixed. The national documentation package has several documents regarding police interaction and sharing of information. So, for example, Exhibit 3, item 10.2, states that police departments in India use communication methods such as fax, phone, e-mail, and database, and they may be used in varying degrees by various departments. However, there is little inter-police communication except for cases of major crimes like smuggling, terrorism, and high-profile organized crime. 

 
[45]       Yet, the same document also suggests that police stations across India are unconnected islands in the case of crime and criminal tracking. There is no system of effective data storage, sharing, and accessing of data. There is no single system by which police units can talk to another directly. 

 
[46]       However, the panel finds that in this case, the adult Claimants are suspected of being involved with V, who was an LTTE member and thus indirectly in support of terrorism. 

 
[47]       Similarly, the Central Bureau of Investigation had taken lead of this investigation together with the Tamil Nadu police. The CBI being a national law enforcement agency. 

 
[48]       The panel agrees with counsel’s submissions in the sense that as per Exhibit 3, Item 10.3, given the involvement of the CBI relating to a case involving a possible link to LTTE terrorism, it in effect closes the door for any IFA for the Claimants as the CBI has country wide reach. 

 
[49]       Thus, the panel finds that on a balance of probabilities, in the particular situation of the adult Claimants, the police departments may collaborate with each other, given the above. 

 
[50]       Accordingly, the panel is of the opinion that there is a serious possibility that the police in India may also go after their family including the minor Claimants to get to them. 

 
[51]       As noted above, since the agent of persecution is the state, the panel finds that there is no viable internal flight alternative for the Claimants. 

 
[52]       The panel thus finds that it would not be safe for the Claimants to relocate anywhere else in the country. 

 
CONCLUSION 
 
[53]       The panel therefore determines the adult Claimants are Convention refugees due to their imputed political opinion, and the minor claimants are Convention refugees as members of their family, as noted above. 

 
[54]       The panel therefore accepts their claims. 
 
 
(signed) Allan Casimiro 
 
January 28, 2022