2023 RLLR 142

Citation: 2023 RLLR 142
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2023
Panel: Ted Bethune
Counsel for the Claimant(s): Luciano G. Del Negro
Country: India
RPD Number: TC3-37312
Associated RPD Number(s): TC3-37313
ATIP Number: A-2024-00768
ATIP Pages: N/A

                                      

DECISION

 

[1]             MEMBER:  This is the decision for XXXX XXXX XXXX, file number TC3-37312, hereafter the principal claimant, and XXXX XXXX XXXX, File Number TC3-37313, hereafter the associate claimant.  I have considered your testimony and the other evidence in the case and I am ready to render my decision orally.  You claim to be citizens of India and are claiming refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act.

 

[2]             I find that you are Convention refugees for the following reasons.  The allegations of your claims can be found in your Basis of Claim forms.  In short, you alleged persecution from the Indian government and community for your political opinion in support of Khalistan and due to your association with a former employee of the principal claimant.  You alleged that the principal claimant hired a young man, hereafter I will refer to as employee, to assist on his XXXX.  On XXXX XXXX, 2015, the employee told the principal claimant he needed to visit his sick father, and the principal claimant allowed him to leave.  You alleged on XXXX XXXX, 2015, a police officer came to make inquiries of the principal claimant and began making allegations that the principal claimant was working with Khalistani militants and told the principal claimant that a partner of his had been arrested in Kashmir and then identified the employee with a different name, telling the principal claimant the employee had been killed.

 

[3]             The principal claimant was then taken to the police station.  You alleged that, at the police station, the principal claimant was beaten and tortured, while further accusations of his involvement with Khalistani militants were made.  XXXX XXXX XXXX XXXX XXXX later, the principal claimant was released with the help of influential people and the payment of a bribe.  The principal claimant was then treated medically and then claimants fled to Canada on XXXX XXXX, 2015.  You alleged that you attempted to obtain legal status in Canada receiving two (2) visas, but were unable to obtain permanent residence and eventually sought refugee status.  You alleged that, in 2022, you became supporters of Khalistan including voting in the XXXX XXXX, 2023, Khalistan Referendum in Canada, with your family in India being questioned about your activities.  You alleged that there is no state protection for you or an Internal Fight Alternative anywhere in India.

 

[4]             Your personal identities as citizens of India have been established by your testimony and the supporting documents filed in Exhibit 1, specifically your valid Indian passports, Canadian visas, and U.S. visas.  I, therefore, find on a balance of probabilities that your identities and country of reference have been established.  I find that there is a link between what you fear and one (1) of the five (5) Convention grounds because of your political opinion in support of an independent state of Khalistan.  As I have made my decision based upon your political opinion in support of Khalistan as expressed in Canada, I find it unnecessary to consider your claim as it relates to your former employee or events you experienced in India and I make no finding in that regard.  I find on a balance of probabilities, based on your testimony and the supporting documents filed, that there is a serious possibility of persecution from the Indian community and government based on your political opinion.

 

[5]             Sworn testimony is presumed to be credible unless there is a valid reason to doubt it.  I am cognisant of the difficulties faced by individuals in establishing their claims including differing levels of education, testifying through an interpreter, cultural factors, and the milieu of the hearing room.  Overall, I have found you to be credible.  I found your testimony to be generally consistent with the evidence and your narrative.  You testified in reasonable detail about your growing interest in Khalistan including that you used to attend meetings held at your Gurdwara in British Columbia, which discussed Khalistan.  You were each able to tell me about specific meetings you attended, why the dates of those meetings were important, and the topics discussed during speeches of specific individuals at those meetings.  You were also able to tell me about conversations you have both had with friends and strangers about Khalistan both in India and here in Canada including how your friends in India have expressed support, but feared doing so publicly due to the Indian government’s treatment of Khalistan supporters.  You further told me about events you have previously attended in Canada and events you have planned for the coming year with specific details of your involvement.  I also found your explanation of Khalistan as independent of the laws and government of Hindus to be commensurate with your stated level of involvement in the Khalistan movement.  I found you did not exaggerate your level of knowledge or activities, but were honest about the limit of your knowledge and memory, which I found added to the credibility of your sworn testimony.

 

[6]             I did consider that you arrived in Canada in 2015, but did not claim refugee status until 2021.  I note that you also failed to produce any documentation regarding legal status or application for such in Canada despite the Board’s October 17, 2023, order that you do so.  You testified that you understood you did have legal status in Canada until 2021, but that you were completely dependent on your agent due to being illiterate and that you asked your daughter to obtain the documents, but that she was unable to do so because the agent and your former lawyer did not answer your daughter’s calls.  I reject this explanation as you delayed claiming refugee status for more than six (6) years in Canada and these documents should have been available through the Canadian government directly.  I do draw a negative credibility inference.  However, given your level of education and stated dependence on your agent, I do not find that the negative credibility inference is sufficient to rebut the presumption of truth of your otherwise credible sworn testimony.

 

[7]             Finally, you have also provided documentary evidence of your support of Khalistan as contained in Exhibit 7.  This includes affidavits from the associate claimant’s brother and the claimant’s home village panchayat, which talked about the conversations the claimants have had with them about Khalistan and Indian police involvement, questioning about the claimant’s Khalistan activities abroad, as well as numerous pictures of you attending Khalistan events including holding Khalistan flags and the principal claimant’s Punjab Referendum Khalistan Voter Registration Card.  I found this evidence to be consistent with your testimony and the other evidence in the case, and I found that this added to the credibility of your sworn testimony.  After reviewing the entirety of the evidence including your testimony and the documentary evidence, I find on a balance of probabilities that you have each established your political opinion in support of an independent state of Khalistan, and I am, therefore, satisfied that there is a serious possibility that you would face persecution at the hands of either the Indian government or your community should you return to India.  I find that you have established your subjective fear.

 

[8]             I further find on a balance of probabilities that you have an objective basis for your fear because of the documented conditions for India as per the evidence in Exhibit 3, the National Documentation Package for India.  Item 12.8 reads the government, civil society and media vilify Sikhs advocating for Khalistan as extremists and militants by default.  The Emeritus professor noted that the government is hostile to separatist movements.  The same source further noted that the societal view of Khalistan activists from the Hindu population is one (1) of suspicion.  And while some Sikhs are sympathetic, many view Khalistan activists as problematic.  It continues.  Khalistan activists are tracked through social media, with police and intelligence forces having vast and sophisticated IT cells, which devote considerable resources to tracking Khalistan supporters and also create false accounts and content in order to lure individuals to express support for Khalistan, so they can also be tracked.  It cites an example of a man whose son was studying in Canada said he was called to a police station to provide his son’s passport number due to a social media post related to referendum 2020 his son had liked.  The man also said that he paid a bribe to officials in order to close the chapter.

 

[9]             Item 12.8 continues.  Intelligence and law enforcement agencies including those in Punjab are controlled by the central government, which views Khalistan supporters very suspiciously.  The same source also stated that the police will not say that they have arrested someone for supporting Khalistan, rather that the arrest is attributed to illegal activities or supporting militants such as putting up pro-Khalistan posters, having weapons, or providing shelter to militants.  The police will blame Khalistan activists for crimes in which they cannot find the perpetrator.  Similarly, the WSO representative stated that perceived Khalistan supporters are often implicated in false cases and police forces harass Khalistan activists and their family and friends.  It additionally states suspected supporters of Khalistan are not safe outside of Punjab anywhere in India.  The same source added that no Sikh can openly be an advocate for or support the creation of Khalistan and doing so results in harassment by the police, false cases, and also hatred of those who do not support Khalistan.  The government portrays anyone supporting separatism as an extremist or terrorist and as an anti-national that can be legitimately targeted for violence.  The associate professor stated that Sikhs who display separatist beliefs face persecution by government authorities and possible retribution from the majority community outside of Punjab.

 

[10]        Finally, it adds, if an individual is outside of Punjab and their support of Khalistan becomes known, there is little doubt they would face discrimination, harassment, or worse.  The Emeritus professor stated that the society outside of Punjab is more hostile to Sikhs in general and that, if the beliefs of a Khalistan activist outside of Punjab were to become known, they would be in danger of violence from local people.  I find on a balance of probabilities that your subjective fear has an objective basis.  Therefore, I find you each to have a well-founded fear of persecution due to your political opinion in support of Khalistan.

 

[11]        As cited above, the central government of India is noted as tracking and luring individuals into expressing their political opinion in support of Khalistan to allow them be tracked and the government portrays those who support such separatism as extremists or terrorists and anti-nationals that can be legitimately targeted for violence.  As further cited above, the police themselves are noted as arresting such supporters for false cases or when they cannot find the perpetrator for a crime and otherwise harassing such individuals, their families, and friends.  I, therefore, find that there is clear and convincing evidence that state protection would not be available to you.

 

[12]        At the outset of the hearing, I did raise potential Internal Flight Alternatives of Ludhiana, Delhi, and Mumbai.  However, the objective evidence states that the central government in India tracks Khalistan activists and then portrays such individuals as legitimate targets for violence, that police and intelligence forces have fast and sophisticated IT cells, which devote considerable resources to trapping Khalistan supporters, and also that such individuals may be in danger from local people outside of the state of Punjab.  I, therefore, find that there is nowhere in India where you would not face a serious possibility of persecution due to your political opinion in support of Khalistan.  As the test for an Internal Fight Alternative fails on the first prong, I find that there is no viable Internal Fight Alternative for you.

 

[13]        Based on the totality of the evidence, I find you to have a serious possibility of persecution in India due to your political opinion in support of Khalistan and, therefore, to be Convention refugees.  Your claims are, therefore, accepted.

 

——— REASONS CONCLUDED ———