2023 RLLR 146

Citation: 2023 RLLR 146
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2023
Panel: Katarina Bogojevic
Counsel for the Claimant(s): Francois Ouimet
Country: India
RPD Number: VC3-02922
Associated RPD Number(s): N/A
ATIP Number: A-2024-00768
ATIP Pages: N/A

                                      

DECISION

[1]                                          This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX as a citizen of India who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”).[1]

DETERMINATION

[2]                                          I find that the claimant is a person in need of protection pursuant to subsection 97(1) of the Act as he has established, on a balance of probabilities, that he would face a risk to his life or a risk of cruel and unusual punishment in India.  

[3]                                          There was an update to the National Documentation Package for India on November 30, 2023, shortly after the conclusion of the hearing on this matter and prior to the finalization of this decision. I have compared the updated NDP to the one that was available at the time of the hearing and have not found any evidence which would contradict the objective evidence in the previous version as it relates to the matters relevant to this decision. As such, I have relied on the July 7, 2023 version of the NDP as it was the one available to the parties at the time of the hearing.  

ALLEGATIONS

[4]                                          The claimant’s allegations are contained in his Basis of Claim (“BOC”) form.[2] The following is a summary: 

[5]                                          The claimant is a Congress party supporter and was the XXXX XXXX XXXX XXXX XXXX XXXX XXXX. As part of his work with the XXXX he XXXX XXXX XXXX and XXXX XXXX XXXX XXXX protest water cut offs in his village of XXXX in Rajasthan. As a result, he became the target of BJP gangsters in 2005 when they attacked him with a sword. 

[6]                                          The claimant moved to Tamil Nadu after the attack and started a business there. He returned to Rajasthan on a few occasions for weddings, funerals and his own marriage, and had no problems. However, when he returned for a wedding in 2011, he was spotted by BJP goons (the “agents of harm”), including a known gangster, XXXX XXXX XXXX (“APS”). They tried to shoot him, but his friend was killed in the crossfire instead. The claimant fled to a nearby village where he hid in a ditch behind a liquor store. The agents of harm followed the claimant there and went into the liquor store looking for him, when the owner gave them no information, they shot and killed him. 

[7]                                          The claimant returned to Tamil Nadu. He learned that APS had been arrested and convicted for the killing of the liquor store owner. In XXXX 2015, APS escaped prison and found the claimant in Tamil Nadu. The agents of harm began to threaten and harass the claimant because they believed he was responsible for APS’s arrest. They physically and verbally assault the claimant, his wife and his child, and only left after neighbours arrived. 

[8]                                          In XXXX 2017, APS was killed in a police encounter. The agents of harm began to accuse the claimant of being responsible for APS’s death and attacked his home in Tamil Nadu, as well as his parents’ home in XXXX in 2018 and again in 2020. 

[9]                                          The claimant and his family moved to Gujarat province in XXXX 2020. The claimant continued to receive threatening calls in Gujarat but was not approached by the agents of harm. However, the claimant could not find a job in Gujarat and decided to return to Rajasthan. He consulted a lawyer upon his return to see what he could do to protect himself from the agents of harm. However, he started to receive death threats, so he moved to Jaipur and later to Ahmedabad, before coming to Canada. 

[10]                                    Since being in Canada, the claimant was advised by his friend in Ahmedabad that the agents of harm had been asking about him. His family also told him that the agents of harm, with the help of local police, have carried out raids on their home in search of the claimant. They have demanded that the claimant return to India and asked the family to provide documents proving he was in Canada. In XXXX 2023, he claimant’s family moved to Pali, Rajasthan to stay with the claimant’s sister. The agents of harm and police carried out a raid against their home in Pali in XXXX 2023.  

[11]                                    The claimant fears that if he returns, he will continue to be targeted with threats, violence or death by the agents of harm and the police because they believe that he was involved in APS’s death. 

ANALYSIS

Identity

[12]                                    I find that the claimant’s identity as a national of India is established on a balance of probabilities by his sworn testimony and the copy of Indian passport in evidence.[3]

 

Nexus

[13]                                    In order to satisfy the definition of a “Convention refugee” found in section 96 of the Act, 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. 

[14]                                    I find that that the risk alleged by the claimant does not have a connection or nexus to any of the Convention grounds. While I acknowledge that the claimant was originally targeted by BJP goons because of his political activities in protesting water shut offs, eventually their focus turned to the fact that they believed the claimant was responsible for the death of one of their members. The claimant did not continue his political activities after moving away from his village in 2005, but they continued to target him. As such, I find that the sole motivation remaining for the agents of harm is their desire for revenge because they believe the claimant was involved in APS’s death. I have therefore assessed his claim under subsection 97(1) of the Act. 

Credibility

[15]                                    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. In this case I have found the claimant to be a credible witness. The claimant testified in a consistent, straightforward and emotional manner and there were no material unexplained inconsistencies, omissions or contradictions. As such, I place significant weight in the claimant’s testimony. 

[16]                                    The claimant has also provided documentary evidence in support of his claim.[4] This evidence includes letters and news articles confirming the claimantXXXX protest with his XXXX concerning the water shut off, affidavits from individuals who confirm that the agents of harm are looking for the claimant (including from the claimant’s sister and mother), and news articles concerning APS’s arrest and death.  I have no reason to doubt the authenticity of these documents, they are corroborative of the claimant’s allegations and so I place significant weight on them in establishing the claimant’s allegations.

[17]                                    Given the foregoing evidence, I find that the claimant has established on a balance of probabilities that he is being targeted by the agents of harm because they believe he is responsible for APS’s death and that these individuals, now with the help of local police, continue to harass the claimant’s family members to get him to return to India. 

[18]                                    I also find that the claimant has established his subjective fear on a balance of probabilities. Over the years in India, he has made multiple attempts to move to different locations to evade the agents of harm. He also attempted to go to Dubai but heard from a contact that APS’s daughter lived in Dubai which made him decide to return to India. While he did not claim refugee protection at the border in Canada, the claimant testified that he wanted to live in Canada legally but did not know about the refugee system. He only learned about it from border services when he flag-polled in XXXX 2023 for the purpose of applying for a LMIA, at which point he applied for protection. I do not find that the claimant’s actions put his credibility into question and find that he has subjective fear on a balance of probabilities. 

Risk of Harm

 

Forward-Looking Risk

[19]                                    To establish his status a person in need of protection, the claimant must show that he would be subjected personally on a balance of probabilities to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture if he returned to India.

[20]                                    Based on the claimant’s BOCs, testimony, documentary evidence and the National Documentation Package for India (“NDP”)[5], I find that the claimant does face a serious possibility of harm from BJP gangsters in India and that he would be subjected personally to a risk to his life or a risk of cruel and unusual treatment or punishment, or a danger of torture from them on a balance of probabilities if he returned to India. 

[21]                                    The objective evidence indicates that the number of violent crimes in India is increasing, and that criminal gangs are active in the country.[6] In response to such violence, citizens face substantial obstacles in the pursuit of justice, and corruption within the police force remains a problem.[7] The Indian police force is also notably susceptible to political pressures and corruption. Police in India are regarded as some of the most corrupt in the word.[8] The claimant has credibly established that he is the target of criminal elements who are involved with the majority political party and have been able to use the police to pursue him.

Is the risk faced personally by the claimant faced generally by other individuals in India?

[22]                                    The next question for me to consider under a section 97 claim is whether, in the context of the allegations, the claimant has provided sufficient evidence of his specific circumstances to establish that their risk is distinct from that of the general population. As set out earlier, pursuant to section 97(1)(b)(ii) of the Act, a claimant is not entitled to protection under the Act if the risk they face is a risk that is generally faced by other individuals in or from their country. The claimant must establish that he would face a risk different from the risk faced by the general population there. 

[23]                                    The Chairperson of the Immigration and Refugee Board has recently identified a new jurisprudential guide as it relates to assessing this particular factor in cases involving gang targeting or other acts of criminality.[9] The guide directs that I divide my analysis into two steps. First, I must determine the risk faced by the claimant and second, I must determine whether that risk is faced generally by others in the same nature and degree. Given that there are no compelling reasons to depart from this guide, I have applied it in my analysis. 

Risk faced by the claimant

[24]                                    The claimant faces an ongoing risk from the agents of harm (members of the BJP and gangsters) because they believe that he is responsible for the death of one of their members, APS. This risk includes the potential for severe physical assault or even death. The agents of harm have already assaulted the claimant, attempted to kill him and have tracked him down to different cities. They continued to harass the claimant’s family members to try to force him to return to India, with the most recent raid being on his sister’s house in Pali, Rajasthan in XXXX 2023, showing continued motivation. 

Is the risk faced generally by others?

[25]                                    I find on a balance of probabilities that the claimant is personally subject to a risk from the agents of harm that is not faced generally by other individuals in or from India. The claimant has been personally targeted by the agents of harm first because of his political activism and later because they believe that he is responsible for APS’s arrest and ultimate death at the hands of police. I find that these circumstances change the nature of the claimant’s risk from a generalized risk of indiscriminate crime that may be faced generally by other individuals, to a risk that is particular to the claimant and that is not faced generally by other individuals in or from India. 

State Protection

[26]                                    There is a presumption that countries can protect their citizens. The claimant bears the burden of rebutting that presumption with clear and convincing evidence. I find that there is clear and convincing evidence that adequate state protection is not available to the claimant in India.

[27]                                    In addition to the objective evidence already outlined above, the UK Home Office reports that the police in India continue to be overworked, underpaid, and subject to political pressures.[10] As noted above, the Indian authorities face significant allegations of corruption, and partake in arbitrary detentions. These sources report that Indian police forces routinely engage in human rights abuses and torture and enjoy high levels of impunity. Per the claimant’s evidence, the local police in Rajasthan are assisting the agents of harm in their pursuit of the claimant. 

[28]                                    Given the country condition evidence and the claimant’s unique circumstances, I find that the Indian state is unable or unwilling to offer the claimant adequate protection from the agents of harm. 

Internal Flight Alternative

[29]                                    I have considered whether the claimant has an internal flight alternative (“IFA”) in Kolkata or Ahmedabad and have concluded that he does not. To find a viable IFA, I must be satisfied that (1) there is no serious possibility of the claimant being persecuted or, on the balance of probabilities, in danger of torture or subjected to a risk to life or cruel and unusual treatment or punishment in the IFA and (2) that conditions in that part of the country are such that it would be reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.

[30]                                    In this case, I find that the claimant has established that the agents of harm have the means and motivation to locate him throughout India. While I acknowledge that there were long gaps of time between the agents of harm pursuing the claimant or his family, the agents of harm have none-the-less been consistent in their pursuit. They found the claimant and his family in Tamil Nadu in 2015, four years after the shooting and APS’s arrest. The delay in time of the pursuit is explained by the fact that APS was in prison. However, when he escaped in XXXX 2015 (as confirmed by the claimant’s objective evidence[11]) just two months later he found the claimant’s family. Tamil Nadu state is more than 30 hours driving distance from their home state of Rajasthan. While we do not know how APS was able to locate the claimant there, it does demonstrate the gang’s means and motivation to do so. 

[31]                                    Two years later in 2017, APS was killed by the police. This incident intensified the agent of harm’s pursuit of the claimant as they saw him as being responsible. They went back to his home in Tamil Nadu in 2018 and again in 2020. They were also threatening the claimant’s family in Rajasthan during this time. This resulted in all of them moving to Gujarat state, which borders Rajasthan. While in Gujarat, the claimant continued to receive threatening phone calls from the agents of harm. 

[32]                                    While the claimant and his family were able to live in Gujarat without interference for approximately two years, the claimant’s decision to return to Rajasthan reignited the motivation of the agents of persecution. This ultimately led to the claimant fleeing the country. Since he has left his home village, the agents of persecution have continued to harass his family. They have even spoken to the claimant’s friend on Ahmedabad, where he stayed just before leaving the country. The claimant’s mother, wife and child have moved to Pali to evade the agents of harm, but they pursued them there along with the police, with their most recent visit being in XXXX 2023. During that visit they demanded that the claimant’s family force him to return to India, and asked for proof that he was living in Canada. 

[33]                                    The agents of harm have demonstrated a longstanding and continued motivation to pursue the claimant across the country. While there have been long gaps in their pursuit, it has less continued to this day. The agents of harm have also demonstrated their ability to locate the claimant in far reaching places. They are associated with the ruling national political party and have most recently utilized the police to harass the claimant’s family. Such connection with the police gives the agents of harm even more resources to be able to locate the claimant. Additionally, it is more likely than not that they would be able to locate the claimant through his family members, who are still being harassed to this day. 

[34]                                    Given the claimant’s testimony and the objective evidence before me, I find that the claimant would, on a balance of probabilities, face a risk to his life or a risk of cruel and unusual punishment in the proposed IFAs and any other location in India. For this reason, I do not need to consider the second prong of the test and find that there is no viable IFA for the claimant.    

CONCLUSION

[35]                                    For the forgoing reasons, I find that the claimant is a person in need of protection within the meaning of section 97(1) of the Act because he would face a risk to his life or a risk of cruel and unusual treatment or punishment in India. The claim is therefore accepted. 

 

——— REASONS CONCLUDED ———

 

 

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

[2] Exhibit 2. 

[3] Exhibit 1. 

[4] Exhibits 6 and 7. 

[5] Exhibit 3. 

[6] Archive – National Documentation Package, India, 7 July 2023, tab 2.5: India. The State of Conflict and Violence in Asia. The Asia Foundation. 11 October 2017.

[7] Archive – National Documentation Package, India, 7 July 2023, tab 2.6: India. Freedom in the World 2023. Freedom House. 2023.

[8] Archive – National Documentation Package, India, 7 July 2023, tab 10.14: India’s Police Forces Turning Into Private Armies Of Elected Rulers. Article 14. Vipul Mudgal. 22 April 2021.

[9] Decision TC1-05038. 

[10] Archive – National Documentation Package, India, 7 July 2023, tab 10.10: Country Policy and Information Note. India: Actors of Protection. Version 1.0. United Kingdom. Home Office. January 2019.

[11] Exhibit 6.