2023 RLLR 141

Citation: 2023 RLLR 141
Tribunal: Refugee Protection Division
Date of Decision: December 14, 2023
Panel: Uchechi Umeh
Counsel for the Claimant(s): Harit Kumar Kapahi
Country: India
RPD Number: TC3-36077
Associated RPD Number(s): TC3-36078
ATIP Number: A-2024-00768
ATIP Pages: N/A

                                      

DECISION

 

[1]             This is the decision of the Refugee Protection Division (RPD) in the claims for refugee protection made by XXXX (the “Principal Claimant” or the “PC”) and his wife XXXX (the “Associate Claimant” or the “AC”). The claimants allege that they are citizens of India and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1] 

[2]             These claims were heard jointly pursuant to Rule 55(1) of the Refugee Protection Division Rules.[2]

 

GUIDELINE CONSIDERATION 

 

[3]             In assessing these claims, I have considered and applied the Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, to ensure that appropriate accommodations were made in questioning the claimants, in the overall hearing process, and in substantively assessing the claims.

ALLEGATIONS

 

[4]             The claimants’ allegations are fully set out in their Basis of Claim (BOC) forms.[3]  In summary, the claimants allege that they fear persecution at the hands of the police in India, BJP members, their Sarpanch and Bajrang Dal goons. The PC alleges that the risk of harm that they face is because of the claimants’ support for the Sikh community and because the PC had decided to give his plot of land near the Gurdwara to the Sikh community. As a result of all these, the claimants have been wrongly accused of being supporters of Sikh militants.

[5]             The claimants also allege a fear of harm from the International Sikh Youth Federation (ISYF), who threatened the claimants with dangerous consequences, if the PC reneged on his decision to donate his land to the Sikh community.

DETERMINATION

 

[6]             Based upon the totality of the oral and documentary evidence, I find that the claimants are Convention refugees as they have established a well-founded fear of persecution on the basis of their perceived political opinion. 

ANALYSIS

Identity

 

[7]             I find that the claimants’ personal and national identities as citizens of India have been established, on a balance of probabilities, by their testimony and the documentary evidence on file, including copies of their Indian passports.[4] 

 

Nexus

 

[8]             The evidence supports that the claimants have been targeted because of their perceived political opinion as Sikh militant supporters. Therefore, I find that there is a link between the claimants’ fear of persecution and the Convention ground of political opinion. As such, I have assessed this claim under s.96 of the IRPA.

Credibility

 

[9]             When a claimant affirms to tell the truth, this creates a presumption that his allegations are true, unless there is reason to doubt their truthfulness.  The claimants’ testimonies were generally consistent with the other evidence before me and so I find them to be credible witnesses. There were no material inconsistencies in their testimony or contradictions between their testimony and the other evidence before me, that go to the heart of their claims. 

[10]        I had some concerns about some minor inconsistencies between the claimants’ oral testimony in the hearing and some details in their BOC, and an omission in the PC’s testimony, which is addressed below. However, I find that these concerns do not go to the heart of the claims, and the concerns do not cumulatively serve to impugn the overall credibility of the claims, given the other evidence before me.

[11]        I find, on a balance of probabilities, that the claimants have established the material aspects of their allegations as highlighted below.

 

The Claimants have Established that they Support the Sikh Community

 

[12]        The claimants testified that though they are both Hindus, born into Hindu families, they believe in and respect every religion and they both follow mainly the Sikh religion. The PC testified that they often go to the Gurdwara 3-4 times a week and continue to do so even here in Canada. The PC also testified that he always donates whenever the leaders of the Gurdwara come to him for donations and so he had a good relationship with them. The claimants have provided a support letter from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX in XXXX, confirming their relationship with and support of the Sikh community.

[13]        The PC testified that he was approached by the XXXX XXXX XXXX XXXX XXXX on XXXX XXXX, 2022, to donate a plot of land that he owns near XXXX XXXX XXXX XXXX, XXXX, Yamuna Nagar, Haryana, to the Sikh community. The PC testified that he decided to give his land to the Sikh community for their religious practices, after giving the matter some thought. The letter from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX in XXXX, corroborates this allegation as well. The claimants have provided the land documents as proof of the PC’s ownership of the land in question.  

[14]        I have assessed the claimants’ evidence regarding their support for the Sikh community. I find their testimony in this regard to be credible and consistent with the other evidence before me. I have also reviewed the supporting letter and land documents and I find no prima facie issues with them. Therefore, given that both documents are probative, I have assigned them full weight in establishing the claimants’ allegations, on a balance of probabilities.

 

The Claimants have Established that they faced Persecution because of their Support for the Sikh Community

 

[15]        The PC testified that he was visited and threatened with death by the Sarpanch, Bajrang Dal goons and some BJP members at their residence on XXXX XXXX, 2022, shortly after his decision to give his land to the Sikh community became public. He was accused of “being a traitor of Hindu community, opposing the Hindu faith, and supporting the Sikh community”.

[16]        On XXXX XXXX, 2022, the PC attempted to file a complaint against the Sarpanch and the goons but was detained by the police. He was assaulted by the police and accused of having links to Khalistani militants and instigating violence between Hindus and Sikhs. The PC testified that he was only released after the payment of a bribe by his father, under the condition that he was not to leave the city without the permission of the police. The PC also testified that before he was released, he was threatened by the police officer who detained him – XXXX. XXXX promised to file fabricated charges of anti-national activities against the PC, if the PC took any further actions against the Sarpanch and any Hindu organization. 

[17]        The PC testified that he was visited on XXXX XXXX, 2022, by members of the International Sikh Youth Federation (ISYF) and threatened with dangerous consequences, if he changed his mind about donating his land to the Gurdwara. The PC testified that following the advice from his lawyer, he submitted a complaint to the Superintendent of Police, Yamunanagar about this, but no action was taken. The claimants provided a copy of the PC’s complaint to the Superintendent of Police dated XXXX XXXX, 2022, and a supporting letter from their lawyer, as corroborative evidence.

[18]        The PC testified that he visited his uncle in Amritsar, Punjab. And on XXXX XXXX, 2023, the police came to his house looking for him. The AC was arrested by the police during this visit and taken to the police station. She was questioned about the PC’s location, assaulted, and accused of knowing where “Khalistan insurgents” were hiding. During the PC’s narration of this incident in the hearing, he mentioned that the AC was “tortured” while in detention. When asked to explain what he meant by that, the PC testified that the police slapped her and pulled her hair. The PC was asked if that was all they did, and he said yes. When the PC was asked why they had included in their narrative that the AC was raped by XXXX, he responded by stating that that was why he said she was tortured. 

[19]        In my initial assessment of the PC’s response, I did not find that it sufficiently explained the omission, given that the PC was asked severally if anything else was done to the AC and he did not mention the sexual assault. However, I have considered a trauma-informed approach to the analysis, and I have considered the guidance in Guideline 4, which states that sometimes trauma or its aftereffects may reasonably explain a perceived discrepancy in claimants’ testimonies. Given the traumatic nature of the incident in question, it is reasonable to expect that the claimants may shy away from spontaneously recounting it. I have also considered the other evidence in support of this allegation – the AC’s XXXX XXXX report after the incident, as confirmation, on a balance of probabilities, that this allegation is credible. 

[20]        The PC also testified that the Haryana police contacted the police in Amritsar, with the details of his location gotten from the AC. The Amritsar police visited the PC’s uncle’s house, questioned the PC about his travel to Amritsar without informing the Haryana police, before arresting him on the charge of having ties to extremists. The PC was later released, after his uncle paid a bribe to the police. The claimants have provided a letter of support from the PC’s uncle, which corroborates this allegation.

[21]        The PC testified that on XXXX XXXX, 2023, XXXX called the AC to come and spend some time with him and she refused. The PC testified that following the AC’s refusal to comply with the request, XXXX then told them to come to the police station for questioning on XXXX XXXX, 2023. The claimants consulted their lawyer and were advised that it was best to move to a different location to avoid the police, given the wide powers of the police under the law, to arrest and detain suspects. The claimants moved to Delhi on XXXX XXXX, 2023, to stay with a friend there. While in Delhi, the claimants learned that the police were actively looking for them and the PC was being accused of belonging to the proscribed International Sikh Youth Federation (ISYF), and so they decided to leave India. 

[22]        Since coming to Canada, the claimants have learned from their relatives and friends in India, that the police in India and the other agents of persecution are still searching for them and so they decided to put in a claim for protection.

[23]        In support of these allegations, the claimants have also provided a letter of support from the PC’s friend in Delhi, who the claimants stayed with before leaving India; and letters of support from the claimants’ neighbor and the PC’s father, corroborating the allegations above and the continued police search for the claimants. I have assessed the documentary evidence provided to corroborate these allegations and I find them to be credible and probative, on a balance of probabilities, and so I have assigned them full weight.

[24]        I accept the claimants’ allegations as credible, on a balance of probabilities. And I find that the claimants have established that they both faced persecution in India because of their support for the Sikh community, which was perceived as an anti-Hindu stance and support for Sikh militancy.

Well-Founded Fear of Persecution

 

[25]        I find that the country documentation supports the claimants’ subjective fear as being objectively well-founded, on a balance of probabilities.

[26]        Firstly, 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.[5] This information corroborates the PC’s testimony about the treatment meted out to him when he attempted to report the threat from his oppressors, the Sarpanch, Bajrang Dal goons and BJP members. Access to justice, particularly in dealing with police is a common complaint in India, 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.[6]

[27]        Secondly, information in the National Documentation Package (NDP) for India[7] confirms that police abuse is a major human rights concern in India. The US Department of State report in the NDP refers to extrajudicial killings, torture, arbitrary arrests, and detention by the police as well as widespread corruption and impunity. According to objective evidence, torture is used by the police to punish or to gather information or coerce confessions, with impunity.[8] An Associate Professor quoted in a Response to Information Request,[9] talks about the treatment of suspected Khalistan supporters outside of Punjab and it states that those who support an independent state of Khalistan can, in many cases, face severe persecution not just in Punjab but in all the states. The same source indicated that Khalistan supporters are often arrested by the police and intelligence agencies and, in many cases, falsely implicated in criminal cases which take years to resolve. This objective evidence corroborates the PC allegation that he was threatened with fabricated charges by XXXX, if he made any further moves to report the Sarpanch. 

[28]        The NDP, also confirms that Indian authorities consider Khalistan supporters as terrorists. This view is rooted in the long-standing tension between the Indian authorities and supporters of an independent Khalistan state. According to the NDP, the Times of India reported that in September 2021, the Punjab Police arrested three individuals just for being in possession of “numerous secessionist pamphlets promoting ‘Referendum 2020’ activities” in Khanna; four US-based individuals were also arrested, as well as an additional individual from Khanna.[10] The Response to Information Report goes ahead to state that the police “keep track of” or “monitor” Khalistan supporters.[11] According to an Associate Professor, security services are more likely to focus on Sikh separatists because they represent “a perceived political threat to the unity of India”. 

[29]        Given that the claimants have established their active support of the Sikh community, which has been misinterpreted as support for Sikh militancy, and the objective country evidence demonstrating the persecution of suspected and actual Khalistan supporters, I find that their fear of persecution at the hands of Indian authorities is backed by objective evidence. 

[30]        Therefore, based on all this objective evidence, I find that the claimants have a well-founded fear of persecution.

State Protection

 

[31]        I have considered whether state protection would be available to the claimants if they returned to India, and I have concluded that it would not, for the following reasons.

[32]        The information in the objective evidence outlined above, particularly Item 12.8, demonstrates that state authorities are themselves responsible for falsely accusing Sikhs of being militants and for arbitrarily arresting, detaining, and persecuting individuals who are suspected or actual supporters of the Khalistan. From the claimants’ testimonies and documentary evidence, they have established that they have already been subjected to this treatment. Both claimants have faced persecution and are being sought after by the police in Haryana, due to their perceived support for Sikh militants.

[33]        I find that it has been established that the police are one of the agents of persecution in this case. Given that the claimants had previously been illegally arrested, assaulted, and detained by police, I find that the presumption of state protection has been rebutted in this case. Furthermore, the actions of the police in Amritsar, by illegally arresting the PC while in Punjab on the urging of the Haryana police, proves that the actions of the police are a concerted effort on the part of the state agents, to persecute the claimants.

[34]        Further evidence of a failure of state protection in this case are the reported failed attempts by the claimants to seek police protection. The claimants have established that they reported the other agents of persecution – the Sarpanch, BJP members, and Bajrang Dal goons and the ISYF, at the Yamunanagar police station on XXXX XXXX, 2022, and through the PC’s complaint to the Superintendent of Police, without results. 

[35]        Therefore, based on the claimants’ personal circumstances as well as the objective evidence, I find that the presumption of state protection has been rebutted, and it has been established that adequate state protection is not available to the claimants in India.

Internal Flight Alternative

 

[36]        Finally, I have considered whether a viable internal flight alternative exists for the claimants, as this was raised at the hearing. This means considering if there is another part of India where the claimants could live safely. At the start of the hearing, Mumbai, Bangalore, and New Delhi were proposed as potential IFA locations. 

[37]        Objective evidence establishes that the treatment of supporters of Sikh militants is consistent throughout India. Hence, as perceived supporters, it is clear that there would be no safe location for the claimants anywhere in India, from the India police who are actively searching for them. 

[38]        Also, I have found that the state is one of the agents of persecution as the claimants have established that the police in India are actively searching for them, as alleged supporters of militants. The claimants have provided evidence to show that the police continue to harass their family and friends in a bid to get the claimants’ whereabouts. I find that this will prove a veritable means for the police to locate the claimants, were they to return to India. The police have already demonstrated their willingness to pursue the claimants outside of Haryana, through the earlier tracking and arrest of the PC in Amritsar. I further find that XXXX’s interest in the AC, and his anger at her for refusing to give in to his request, act as further motivation that will fuel the continued search for the claimants, using resources at the police disposal.

[39]        As such, I find that the claimants would face a serious possibility of persecution throughout the country and therefore there is no viable internal flight alternative for them. 

CONCLUSION

 

[40]        Based on the totality of the evidence, I find that the claimants are Convention refugees on the ground of their perceived political opinion, and I accept their claims.

 

——— REASONS CONCLUDED ———

 

 

[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27. 

[2] Immigration and Refugee Board, Refugee Protection Division Rules, SOR 2012/256.

[3] Exhibits 2.1 and 2.2.

[4] Exhibit 1.

[5] Exhibit 3: National Documentation Package (NDP) for India – July 7, 2023, version, items 10.14 and 10.8.

[6] NDP, item 1.5.

[7] NDP for India – July 7, 2023, version.

[8] NDP, Item 2.1.

[9] NDP, at Item 12.8.

[10] Ibid.

[11] Ibid.