2023 RLLR 124
Citation: 2023 RLLR 124
Tribunal: Refugee Protection Division
Date of Decision: December 5, 2023
Panel: Asheka Tasnim
Counsel for the Claimant(s): Omar Rios Garcia
Country: India
RPD Number: TC3-16048
Associated RPD Number(s): N/A
ATIP Number: A-2024-00768
ATIP Pages: 000021-000028
DECISION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXXX, the claimant, as a citizen of India who is claiming refugee protection pursuant to section 96 and section 97(1) of the Immigration and Refugee Protection Act (IRPA).1
[2] The panel considered the Chairman ‘s Guideline 4: Gender Considerations in Proceedings before the Immigration and Refugee Board2 when writing this decision to reflect the intersectionality of the claimant being a member of a scheduled caste, a female, and the claimant’ s testimony of having experienced cumulative discriminatory treatment.
ALLEGATIONS
[3] The specifics of the claim are set out in claimant’s Basis of Claim (BOC) form, as amended.3 In summary, the claimant alleges that she fears persecution in India on the basis of her scheduled caste if she were to return. The claimant is of the Chamar caste, which is a Dalit sect, and faces discrimination in India on this basis.
DETERMINATION
[4] The panel finds the claimant is a Convention refugee pursuant to section 96 of IRPA.
ANALYSIS
Identity
[5] The panel finds that the claimant has established her personal identity and country of citizenship, on a balance of probabilities, by her testimony and a copy of her passport.4
Nexus
[6] In order to satisfy the definition of a “Convention refugee”, per section 96 of IRPA, a claimant must establish that he or she has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group, or political opinion. The panel finds the claimant’s allegations have a nexus, or connection, to the Convention ground of a particular social group. Therefore, this claim is assessed under section 96 of the IRPA.
Credibility
[7] In claims before the RPD, sworn testimony is presumed true unless there is valid reason to doubt its truthfulness.5 The panel is mindful of the many difficulties faced by the claimant in establishing a claim, including nervousness, cultural factors, and the difficulties inherent in responding to questions through an interpreter. Moreover, a judgment as to the credibility and probative value of the evidence must be made with regard to the totality of the evidence, including what is known about the conditions and laws of the claimant’s country. The determination as to whether a claimant’s evidence is credible is made on balance of probabilities.
[8] The panel finds there are some credibility concerns and inconsistencies with respect to the claimant’s testimony and her documents. That said, the panel finds that the claimant has provided reasonable explanations for some of the credibility concerns that exist on the face of the claim and that any remaining inconsistencies do not crucially undermine the claimant’ s central allegation. The panel finds the claimant credible, on a balance of probabilities, with respect to the allegations that she is from the Dalit caste. The panel has considered the claimant’s residual profile as scheduled caste will expose her to discrimination that will amount to persecution if she were to return to India.
[9] The claimant has provided her scheduled caste certificate6 in support of her claim. The panel assigns this document full evidentiary weight. The panel finds on a balance of probabilities that the claimant is of the Dalit caste, and as such, is a member of a particular social group.
[10] In addition to providing a scheduled caste certificate, which establishes the claimant belongs to the Chamar caste (Dalit), the claimant testified about her cumulative experience in India due to her ascribed caste. The claimant spoke about her negative experiences in school, including being humiliated, bullied, and assaulted by students of higher caste. The claimant testified that when she sought help, teaching authorities and the system justified the scheduled caste hierarchy. The claimant testified that lower caste students would be segregated from the higher caste students and would have to sit on the floor, and that she was personally compared to the shoes of the higher caste students. The claimant became quite emotional when describing the verbal harassment she experienced. The claimant also detailed the challenges she faced with finding a job and accommodation during her student life in India due to her belonging to the Chamar caste. The claimant mentioned that her relationship with a higher caste boy eventually ended as his family was not accepting of “mixed blood”.
[11] The panel finds on a balance of probabilities, based on the claimant’ s testimony and supporting document, the claimant has established she is Dalit and experienced discrimination that amounted to persecution because of her caste while living in India. Additionally, the panel finds on a balance of probabilities, the claimant has established her subjective fear of persecution if she were to return to India.
Well-Founded Fear of Persecution
[12] People from scheduled castes are also referred to as Dalits, the term the claimant used to self-identify. Perthe National Documentation Package (NDP), Dalit means “broken” or “oppressed” and Dalits were formerly referred to as “untouchables”.7 The caste system comes out of Hindu tradition and Dalits are those who fell outside the caste system. Despite being a Hindu tradition, other religions like Islam, Sikhism and Christianity, follow a caste system in India.8 Dalits have historically been associated with work that is seen as less desirable; “including work involving cleaning or waste, and traditional taboos existed against members of the four castes touching them”.9
[13] Objective evidence says that Dalits suffer some of the worst persecution in India. Discrimination against Dalits or scheduled castes permeates throughout every facet of life: education, housing, employment and access to health care and other services. Dalits have more limited employment options and face discrimination in employment. They have limited access to education and experience segregation and discrimination in schools. Dalits are often forced to live in separate slums or ghettos and face discrimination accessing housing.10 Dalits who are able to break caste-based barriers are prone to severe punishment from dominant castes, including economic boycotts and physical violence.11 The claimant herself has detailed her struggles with securing a job once her caste became public knowledge, including an instance where she was fired from her job after two weeks when recognized by students from her school.
[14] Untouchability practices in India remain widespread in both urban and rural settings. These include dominant castes not touching Dalits, not letting them use the same mugs, utensils etc., not entering Dalit houses, not allowing their children to play with Dalits or to be in a relationship with a Dalit. There are thousands of variations of untouchability practices and the severity and prevalence vary depending on location. Dalits are systematically paid less, ordered to do the most menial work, and rarely promoted. Even at school, Dalit children may be asked to clean toilets and to eat separately. As an instrument of casteism, Untouchability also serves to instill caste status to Dalit children from the moment they are born. Kachro (filth), Melo (dirty), Dhudiyo (dusty), Gandy (mad), Ghelo (stupid), Punjo (waste) are just some of the names given to Dalit boys in Gujarat. Of course, names with similar meanings are given to Dalit girls too. This shows the debilitating effect of Untouchability, as it becomes a conscious act of cooperation between two individuals of distinct caste or subcaste identity. The person treated as untouchable submits himself or herself to untouchability practices because of a generational integrated belief that it is right, justified, religious and natural.12 The claimant mentioned that she sought assistance from teachers for the harassment she experienced at school, but the claimant was reminded of the caste system, and no help was forthcoming.
[15] In 2021, 50,900 cases of crimes against Dalits were reported which is an increase of 1.2% from the previous year.13 Dalits face a higher risk of violence in the case of women and girls.14 Dalit women are often victims of rape or threats of rape and are disproportionately victimized compared with other caste affiliations according to official crime statistics. Members of dominant castes are known to use sexual violence against Dalit women and girls as a political tool for punishment, humiliation, and assertion of power.15
[16] While there are legal mechanisms in place to protect Dalits, their implementation is weak and inconsistent.16 Authorities have failed to adequately investigate or punish perpetrators of violence based on caste and hate crimes against Dalits and other religious minorities are committed with impunity.17 “[D]espite the depth of legislation against discrimination and atrocities on the basis of caste, implementation is severely lacking and impunity in cases related to caste is more the norm than the exception.”18
[17] Sources report that police, along with other agencies including the courts, public servants, judiciary, and prosecutors, have an inherent bias when dealing with Dalit victims of crime in particular.19 The claimant testified that her family had inquired to a police officer if support could be obtained for the claimant, and was told by the police officer that complaining about school and workplace issues was not going to help as girls get married and do not join the workforce. The objective evidence supports the claimant’s subjective fears presented before the board.
[18] In consideration of the objective evidence in the NDP and the claimant’s testimony, the panel finds that societal attitudes towards Dalit caste has not changed in India, in that the claimant will continue to experience discrimination that amounts to persecution because of her caste if she were to return to India.
State Protection
[19] While there is a presumption of state protection, this presumption can be rebutted with clear and convincing evidence that state protection will not be forthcoming to a claimant.20 After considering the objective evidence discussed above and the testimony, the panel finds on a balance of probabilities that adequate protection would not be available to the claimant in India.
Internal Flight Alternative
[20] The panel identified Delhi and Mumbai as possible IFAs at the outset of the hearing.
[21] The two-pronged test for an IFA is well-established. The panel must be satisfied, on the balance of probabilities, that:
a) the claimant would not be subject personally to a danger of torture or to a risk of life or a risk of cruel and unusual punishment, or face a serious possibility of persecution in the proposed internal flight alternative; and
b) that conditions in that part of the country are such that it would be objectively reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.21
First Prong
[22] The panel finds that the claimant does not have a viable IFA. Given the claimant is a member of a scheduled caste, and has experienced systemic discrimination, there remains a serious possibility of persecution in Delhi and Mumbai.
[23] As noted above, Dalits face systemic discrimination in all areas of life, and are also at an increased risk of violence. Although the evidence suggests that the issues facing Dalits are more
prevalent in rural areas,22 Dalits are inherently disadvantaged in society by birth countywide and may not be able to secure housing or employment in major urban areas. These issues are still significant in urban areas and caste-based crimes occur across the country.23
[24] Using a forward-facing risk assessment, the panel finds on a balance of probabilities that the claimant would face persecution anywhere in India. As such, the first prong of the IFA test has not been met.
Second Prong
[25] Since the first prong of the IFA has not been met, and both prongs must be met for IFA to be viable, it is not necessary for the panel to proceed with the analysis of the second prong.
CONCLUSION
[26] The panel concludes that the claimant is a Convention refugee pursuant to s. 96 of the IRPA because she faces a serious possibility of persecution based on her identity as a member of the Dalit caste.
[27] Thereby, the claim is accepted.
——— REASONS CONCLUDED ———
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27
2 Chairman’s Guideline 4: Gender Considerations in Proceedings before the Immigration and Refugee Board
(effective October 31, 2023)
3 Exhibit 2 and Exhibit 6
4 Exhibit 1
5 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C, 302 (C.A.); 31 N.R. 34 (F.C.A.).
6 Exhibit 4
7 Exhibit 3, Item 13.4
8 Ibid, items 13.4 and 13.8
9 Ibid, Item 1.5
10 Ibid, Item 13.4
11 Ibid
12 Ibid, item 13.4
13 Ibid, Item 2.3
14 Ibid
15 Exhibit 3, Item 13.4
16 Ibid, Item 1.5
17 Ibid, Item 2.2
18 Ibid, Item 13.4
19 Ibid, Item 13.4
20 Canada (Attorney General) v. Ward,[1993] 2 S.C.R. 689,103 D.L.R. (4th) I, 20 Imm. L.R. (2d) 85.
21 Rasaratnam v. Canada (Minister of Employment and Immigration), [l 992] I F.C. 706 (C.A.)
22 Exhibit 3, Item 2.1
23 Exhibit 3, Item 2.2 and 13.4