2023 RLLR 140

Citation: 2023 RLLR 140
Tribunal: Refugee Protection Division
Date of Decision: December 1, 2023
Panel: Uchechi Umeh
Counsel for the Claimant(s): Awais Khan
Country: India
RPD Number: TC3-26844
Associated RPD Number(s): N/A
ATIP Number: A-2024-00768
ATIP Pages: N/A

                                      

DECISION

[1]             These are the reasons for the decision in the claim for refugee protection made by XXXX XXXX XXXX (“the claimant”) who claims to be a citizen of India and is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)^[1].

ALLEGATIONS

[2]             The claimant’s allegations are set out fully in his Basis of Claim form.^[2] To summarize, the claimant alleges that he was persecuted by Hindu Extremists and members of the BJP party in India, due to his Islamic religion and his active participation in Muslim organizations and conferences. He alleges that he has been accused of debasing the Hindu religion by XXXX XXXX and XXXX XXXX in his XXXX shop, as well as propagating an anti-Hindu agenda through his religious activities. The claimant also alleges a fear of the police and the XXXX XXXX XXXX XXXX XXXX XXXX XXXX security outfit in India. 

DETERMINATION

[3]             Based upon the totality of the oral and documentary evidence, I find that the claimant is a Convention refugee as he has a well-founded fear of persecution on the basis of his Islamic religion.

ANALYSIS

Identity

[4]             I find that the claimant’s personal identity and his national identity as a citizen of India have been established, on a balance of probabilities, by his testimony and the documentary evidence on file, including a copy of his Indian passport.^[3]

 

Nexus

[5]             The evidence supports that the claimant has been targeted because of his religion, as a Moslem in India. Therefore, I find that there is a link between the claimant’s fear of persecution and the Convention ground of religion. As such, I have assessed this claim under s.96 of the IRPA.

Credibility

[6]             When a claimant swears the truth to certain allegations, this creates a presumption that they are true, unless there is reason to doubt their truthfulness.^[4] The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.^[5] In assessing the claimant’s credibility, I have considered all the evidence, i.e., the oral testimony and documentary evidence entered as exhibits. I am also cognizant of the difficulties faced by individuals in establishing their claims, including cultural factors, the milieu of the hearing room, and the stress inherent in responding to the questions put to them.  

[7]             I have found the claimant to be a credible witness and therefore believe what he has alleged in support of his claim. He generally testified in a straightforward manner and there were no material inconsistencies in his testimony or contradictions between his testimony and the other evidence before me, that go to the heart of his claim, which were not satisfactorily explained. The claimant was able to provide the kind of details that one would expect from someone telling their own story. 

[8]             I find that, on a balance of probabilities, the claimant has established that:

·      He is a Muslim man who comes from a family of devout Muslims. 

·      His father owned and operated a XXXX shop – “XXXX XXXX XXXX”, which the claimant took over when his father died.

·      Inspired by his late father’s religious activities, the claimant, as an active Muslim, worked for the Muslim community. The claimant was not just an active Muslim who engaged in religious activities, he was a member of the XXXX XXXX XXXX and worked voluntarily at the Mosque, XXXX religious activities. 

·      In XXXX 2019, the claimant became a member of the All India Majlis-e-Ittehadul Muslimeen (AIMIM), an Indian political party dedicated to protecting and advancing the rights of Muslims and other minorities. Under the party, the claimant participated in and XXXX Islamic conferences and was subsequently appointed as the XXXX XXXX of the party’s XXXX XXXX. The news of this appointment spread in his community and the Hindu extremists in his community felt threatened by his religious activities and new position. On one of the occasions while the claimant was being attacked by Hindu extremists in his shop, one of his attackers mentioned that the claimant will carry out more work for Muslims and denigrate the Hindu faith further now that he has become the XXXX XXXX of the party unit. 

·      The claimant XXXX an Islamic conference, outside his house on XXXX XXXX, 2020, which was attended by the management committee of the XXXX XXXX XXXX and several others. During this conference, the claimant was accosted and assaulted by armed Hindu extremists. The attack was fueled by the suspicion that the claimant was spreading hate speech against Hindu and other religions. Despite the claimant’s explanation that the purpose of the conference was to highlight the benefits of Muslim community, these extremists who identified themselves as members of the Bharatiya Janata Party (BJP) sent by the XXXX XXXX XXXX XXXX XXXX, attacked him. The claimant attempted to report this incident to the XXXX police, but was turned away, because his complaint was against the XXXX XXXX XXXX. 

·      The claimant was again assaulted by these Hindu extremists on XXXX XXXX, 2020, the first day of the Islamic Eid-ul Adha festival, on the suspicion that he XXXX XXXX XXXX during the Eid celebration and XXXX XXXX XXXX in his shop. The claimant was warned by the assailants before they left that day, to close his XXXX shop permanently. The claimant again attempted to report this incident to the police but was turned away by the police as soon as he stated the reason for his complaint, on the ground that it was a religious matter. The claimant was attacked again at his XXXX shop, and his shop vandalized, on XXXX XXXX, 2020, by these same Hindu extremists, who queried him about not closing his shop as instructed during their earlier visit. 

·      The claimant was forced to move to Mumbai city to live with his cousin XXXX XXXX, and later to New Delhi. Despite his moving, the claimant’s family was repeatedly targeted and attacked by these Hindu extremists, in their search for the claimant. The claimant himself was also targeted and attacked by Hindu extremists both in Mumbai and New Delhi. 

·      On every occasion that the claimant went to the police station to report these attacks, he was turned away because his complaint was against Hindus and members of the ruling BJP party. He was on one occasion outrightly told by the police that they cannot assist him because the BJP has influence over the police department, as the ruling party. In the one instance that the police agreed to take down his report, the police insisted that the report be made out against “unknown persons”, refusing to take any complaint made against BJP. The claimant has provided a copy of the First Information Report he filed, which was registered against unknown persons, to corroborate this allegation. 

·      While in Mumbai, the claimant was forced to report the police’s reluctance to assist him to the Mumbai Commissioner of police, yet this did not yield any positive results. Instead, the claimant has testified about how he is now being targeted by the police as a result of this report. On XXXX XXXX, 2023, two police officers visited the claimant’s home and inquired about him from his mother. During this visit, the officers expressed their displeasure with the claimant, because of his report to the Commissioner and threatened that there would be consequences. 

[9]             In support of his claim, the claimant has provided several documentary evidence,^[6] which include; documentation confirming his identity as a Muslim man and his membership at the XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, a poster of the Islamic conference that he XXXX on XXXX XXXX, 2020, a picture of his family XXXX shop, a medical note, the rental agreement for his apartment in New Delhi, A copy of the complaint to the Commissioner of police, letters of support from his friend XXXX XXXX, his cousin XXXX XXXX, his mother and his brother corroborating key aspects of his story.

[10]        Having considered the claimant’s testimony and the supporting documentation provided, I find that the claimant’s subjective fear is established, and I believe what he has alleged, on a balance of probabilities. 

Objective Basis

[11]        I find that the claimant’s fear of persecution in India is objectively well-founded.

[12]        First, the evidence corroborates the claimant’s fears relating to his Muslim identity, especially after the BJP came into power. Muslims make up roughly 14 percent of India’s population.^[7] The Constitution of India provides for freedom of conscience and the right of all individuals to freely profess, practice, and propagate religion, and it mandates a secular state, requires the state to treat all religions impartially, and prohibits discrimination based on religion.^[8] However, according to objective evidence, 13 of the 28 states in India have laws restricting religious conversions, 6 state governments have laws imposing penalties against so-called forced religious conversions, the police have made several arrests under laws that restrict religious conversion, and several state governments announced plans to strengthen existing legislation or develop new legislation restricting religious conversion. 

[13]        The objective evidence demonstrates that there is an increasing rise of communal violence against minority religions, including Muslims, with no sign of things getting better. Attacks on members of religious minority communities, including killings, assaults, and intimidation, occurred throughout the year in India.^[9] These included incidents of “cow vigilantism” against non-Hindus, based on allegations of cow slaughter or trade in beef.^[10] According to the objective evidence:

 

In Hinduism, the cow is considered sacred. Article 48 of India’s constitution directs the state to “take steps . . . prohibiting the slaughter of cows and calves.” Twenty of the country’s 28 states criminalize cow slaughter in various forms through meat policies banning the import/export and sale of cattle. These laws are often applied against religious minorities, including Christian, Muslim, Dalit, and other indigenous communities whose religious beliefs do not prohibit the eating of beef.^[11]  

[14]        In recent years, the BJP-led government has challenged the secular principles of the constitution by implementing laws and policies at the national and state levels promoting Hindu nationalism, thereby posing severe challenges to freedom of religion or belief and related rights. Throughout 2020, the national and state governments’ perpetration and tolerance of these systematic, ongoing, and egregious violations led to increasing repression of religious freedom and a growing climate of hostility and violence toward religious minorities, human rights advocates, and others speaking out against such violations.^[12]

[15]        Supporting a finding that the violence against Muslims has escalated in recent years, the United States Commission on International Religious Freedom report from April 2023 documents the BJP’s promotion of Hindu nationalist policies that have resulted in the systemic, ongoing, and egregious violations of religious freedoms in India.^[13] Protests in New Delhi in February 2020 resulted in the worst Hindu-Muslim violence in several decades. Hindu nationalists and mobs sympathetic to the cause operated with impunity, violently attacking Muslims, attacking mosques, and destroying homes and businesses in Muslim majority neighbourhoods.^[14] 

[16]        Violence targeting Muslims has occurred throughout India.^[15] Sources describe officials of Hindu nationalist political parties making inflammatory public remarks or social media posts against Muslims.^[16] There is also evidence that laws banning cow slaughter have created openings for Hindu extremist groups who target Muslims.^[17] Overall, I find that Hindu nationalist politics and views are generally widespread in India, with a serious possibility for communal violence directed towards Muslims. 

[17]        The claimant has also provided country condition documentation which further corroborates all of this information.^[18]

[18]        In consideration of all the evidence before me, I find that on a balance of probabilities, the claimant has established an objective basis for his fear in India. As the claimant has established his subjective fear and an objective basis for that fear, I find that he has established a well-founded fear of persecution, on a balance of probabilities. 

State Protection

[19]        Claimants are expected to exhaust all recourses of protection before making a claim, except in situations where the agents of the state are themselves the source of persecution.^[19] Claimants cannot be expected to risk their lives in seeking ineffective protection.^[20]

[20]        Firstly, I note that the claimant attempted to seek protection from the police on several occasions, however, the police refused to help, making it clear that they will not receive or follow up on any reports against Hindus or members of the ruling BJP party. There are several reports in the NDP which detail how the police abuse their powers and are partisan in the execution of their duties, favoring influential persons and those in power.^[21]Access to justice, particularly in dealing with police is a common complaint, although people’s experiences vary greatly from state to state, and within states. DFAT assesses that corruption remains a part of daily life across India, with facilitation payments and bribes being common practice, particularly at the local level.^[22]

[21]        The documentary evidence establishes that the state has failed to provide adequate protection against risks to the safety of Muslims in India, arising from widespread Islamophobia by nationalist extremist groups. For example, a recent Human Rights Watch paper examines the link between the criminalization of slaughtering of cows and the repression of Muslims and the Hindu nationalist political movement, and the failure of local authorities to enforce constitutional and international human rights obligations to protect Muslims.^[23]

[22]        Secondly, I note that the state itself is among the claimant’s agents of persecution, considering that the claimant has been threatened by police officers with consequences for reporting their refusal to assist him to the Commissioner of police.  

[23]        Based on all the evidence before me, I find that, on a balance of probabilities, the claimant has rebutted the presumption of state protection with clear and convincing

[23]     evidence that adequate state protection would not be reasonably available to him, in his

[23]     particular circumstances.

Internal Flight Alternative

[24]        The test for an internal flight alternative (IFA) is two-fold, as set out by the Federal Court of Appeal in the case of Rasaratnam.^[24] First, I must find that the claimant would be safe in this city, and secondly that it would be reasonable to expect that the claimant relocates there. In order to render an IFA not viable, I must reject one of these prongs. 

[25]        I find that, on a balance of probabilities, the test for an IFA fails on the first prong in the present case.  

[26]        Although I acknowledge that India is a large multicultural country made up of more than 1.3 billion people, and that Muslims make up about 14% of the population, I find that the evidence establishes that the new trend of vigilante violence targeting Muslims with impunity, currently exists in all parts of the country.

[27]        I acknowledge that the courts have held that a claimant cannot rely solely on country condition evidence to establish his claim^[25]. It is not enough for the claimant to show that he will be unsafe throughout India, by just establishing that he is Muslim and therefore will be targeted. I note that there are still Muslims living safely in India. However, the claimant has established that he has in fact attempted to relocate from Hyderabad, where the issues started, to Mumbai and then new Delhi. However, in those places, he was also targeted and attacked by Hindu extremists. I have also considered the claimant’s profile as a known religious and political activist, and I find that this will make it hard for him to settle safely into another location undetected. Even though the claimant can reasonably be expected to give up his XXXX shop business to protect his life, it would be unreasonable to expect that the claimant gives up his religion or political beliefs, to avoid persecution. 

[28]        Based on all of the evidence before me, I find on a balance of probabilities, that the claimant does not have a viable internal flight alternative available to him in India

CONCLUSION

[29]        Based on the totality of the evidence, I find that the claimant has established a serious possibility of persecution should he return to India. Therefore, I find that the claimant is a Convention refugee on the ground of his religious belief and practice, and I accept his claim. 

 

——— REASONS CONCLUDED ———

 

 

^[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).

^[2] Exhibit 2. 

^[3] Exhibit 1.

^[4] Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. 

^[5] Orelien, Joseph v. M.E.I. (F.C.A., no. A-993-90), Heald, Mahoney, Stone, November 22, 1991. 

^[6] Exhibits 5.1, 5.2 and 6.2.

^[7] Exhibit 3, National Documentation Package (NDP) for India, July 7, 2023, item 12.15. 

^[8] Ibid, item 12.1.

^[9] Ibid.

^[10] Ibid, p.32.

^[11] NDP, item 12. 20. 

^[12] Ibid., item 12.14

^[13] Ibid., item 12.2

^[14] Ibid.

^[15] Ibid., item 12.10.

^[16] Ibid., items 12.1, 12.2 and 12.15.

^[17] NDP, items 2.6, 12.7 and 13.11.

^[18] Exhibit 5.2.

^[19] Chaves, Alejandro Jose Martinez v. M.C.I. (F.C., no. IMM-603-04), Tremblay-Lamer, February 8, 2005; 2005 FC

193; see also Lopez Gonzalez, Jaqueline v. M.C.I. (F.C., no. IMM-5321-10), Rennie, May 24, 2011; 2011 FC 59.

^[20] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

^[21] Ibid, items 10.14 and 10.8.

^[22] Ibid, item 1.5.

^[23] NDP, item 13.11. 

^[24] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).

^[25] Nagy v Canada (Citizenship and Immigration), 2013 FC 640 at paras 68-69, 229 ACWS (3d) 530; Horvath v Canada (Citizenship and Immigration), 2016 FC 792 at paras 22 to 26, 268 ACWS (3d) 416; and Tamas v Canada (Citizenship and Immigration), 2012 FC 1361 at paras 68-72, 225 ACWS (3d) 200