2023 RLLR 149
Citation: 2023 RLLR 149
Tribunal: Refugee Protection Division
Date of Decision: December 12, 2023
Panel: Alexander Olson
Counsel for the Claimant(s): Meryam Haddad
Country: India
RPD Number: VC3-07641
Associated RPD Number(s): VC3-07642, VC3-07643, VC3-07644
ATIP Number: A-2024-00768
ATIP Pages: N/A
DECISION
[1] This is the decision of the Refugee Protection Division of the Immigration and Refugee Board (IRB) in the claim for protection made by the principal claimant, XXXX XXXX, the associate claimant, his wife, namely, XXXX XXXX, and the minor claimants, who are the principal and associate claimants’ children, namely XXXX XXXX and XXXX XXXX, all of whom claim to be a citizens of India, and who are seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the Act).[1]
[2] I have appointed XXXX XXXX as designated representative for his minor children XXXX XXXX and XXXX XXXX.
[3] In assessing this claim, I have considered and applied the Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board,[2] and the Chairperson’s Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board.[3]
ADMINISTRATIVE MATTERS
[4] An updated version of the national documentation package (NDP) for India, dated November 30, 2023, was issued post hearing. Under the Policy on National Documentation Packages in Refugee Determination Proceedings,[4] general principle II outlines that the RPD will consider the most recent NDP in support of assessing forward-looking risk. I have compared the relevant documents that were used in reviewing this claim with the older version of the NDP and note that the new NDP contains essentially the same information as the older version. Thus, I will be employing the newer version of the NDP for India for the purposes of assessing this claim.[5]
ALLEGATIONS
[5] The principal claimant, associate claimant, and two minor claimants are 46-years-old, 38-years-old, 15-years-old, and 12-years-old citizens of India, respectively, who fear persecution at the hands of Indian state actors, police, and Hindu nationalists. The claimants’ allegations, as set out in their Basis of Claim (BOC) forms[6] and during their testimony at the hearing, can be summarized as follows.
[6] The claimants fear persecution from the Indian government, Hindu nationalists, and the police for their Sikh faith and their imputed pro-Khalistan activities in India and Canada.
[7] The principal claimant witnessed police and BJP (the ruling political party in India) and RRS (a right-wing, Hindu nationalist organization) workers beating and sexually assaulting a dalit woman in the street. Upon seeing this incident, the claimant alleges that he brought attention to the situation and people thus came to assist the unfortunate dalit woman. The claimant also stated that he, accompanied by some of the dalit woman’s relatives, subsequently reported the incident to police and were told that police would investigate the matter.
[8] The claimants allege that, on XXXX XXXX, 2021, their home was raided by police and the principal claimant was taken to a police station where he was threatened with consequences should he speak out against the police or another individual who was a well-connected relative of a local BJP leader. The principal claimant alleges that he refused the demands of the police and was subsequently beaten until people from his village intervened and he was released after being forced to sign blank documents and on the condition that he not make any statements against police.
[9] The claimants allege that RRS and BJP goons and police started harassing them after the incident and that the woman they had seen being assaulted was involved with militants and had threatened a BJP leader.
[10] The claimants also allege that on XXXX XXXX, 2021, the principal claimant was arrested again, detained, and beaten in a police station as the police were trying to find out where this dalit woman had fled.
[11] The claimants allege that the principal claimant was arrested for a third time on XXXX XXXX, 2022, and that police detained him, tortured him, accused him of laundering money for Sikh militants, and accused him of providing logistical support to the dalit woman who was alleged to be a militant herself. They state that the principal claimant had to leave his fingerprints, get his eyes scanned, sign blank papers, and agree to attend the police station every month and not leave town. The claimants also allege that the associate claimant was detained, beaten, and sexually assaulted by police, and that she was made to sign blank papers, provide her fingerprints, and that they took her picture.
[12] The claimants allege that, through the assistance of an unnamed person and a bribe, they were released and then went to the hospital. After being treated at the hospital, they proceeded to contact an agent who hid them in New Delhi before they could leave for Canada.
[13] The claimants left India on XXXX XXXX, 2022 and arrived in Canada that same day with visitor visas. They made their refugee claim in Canada on September 2, 2022.
[14] The claimants allege that they have learned from the principal claimant’s mother that police continue to seek them in India and accuse them of involvement with Sikh militants.
[15] In an amended BOC received on October 23, 2023, the claimants allege that they are part of a “backward class.” Further, they allege that they were recently introduced to the Khalistan independence movement in XXXX of 2023 by members of the Punjabi community and that they accordingly voted in the referendum for Khalistan in 2023. The claimants also specified in the amended BOC that the principal claimant accompanied the dalit woman’s parents to the police station where he saw the constable who had assaulted her, accordingly pointing at him in the police station to identify him.
DETERMINATION
[16] I find that the claimants face a serious possibility of persecution if they return to India for reason of their political opinions and imputed political opinions respectively, namely as supporters of an independent Khalistan, in India. I find that the principal and associate claimants are Convention refugees pursuant to s. 96 of the Act.
[17] I find that the minor claimants are neither Convention Refugees nor persons in need of protection under section 97 (1) of the Act. My reasons follow.
ANALYSIS
Identity
[18] On a balance of probabilities, I find that the claimants have established their personal and national identities as citizens of India and no other country, by the documentary evidence on file, including the copies of their Indian passports, which can be found in exhibit 1.
Nexus
[19] 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. I find that there is a nexus between the harms that the principal and associate claimants fear and the Convention grounds of political opinion and imputed political opinion respectively due to their pro-Khalistan views. I also find that there is a nexus between treatment that the claimants may face and the Convention ground of their membership in a particular social group, as a member of a backward caste, known as the Luhar caste. Therefore, I have also turned my mind to this consideration in my analysis.
[20] I find that the minor claimants form a particular social group as family members of the principal claimant, and therefore their claim has a nexus to the Convention ground of membership in a particular social group.
[21] The claims are therefore assessed pursuant to section 96 of the Act.
Credibility and Findings of Fact
[22] Testimony provided under oath is presumed to be truthful unless there is reason to doubt its veracity.[7] The presumption of truthfulness does not apply to inferences or speculation.
[23] The associate claimant appeared nervous and was not effusive in her testimony. She stated that she was not feeling well, broke down crying in several instances, and I accordingly scheduled regular breaks for her throughout the hearing. The principal claimant was more effusive in his testimony, although he often appeared to have difficulty answering questions directly. However, there were no relevant contradictions or omissions in the claimants’ testimonies, and therefore I have no reason to doubt the veracity of their testimonies. I find that the claimants’ testimonies were genuine with respect to the core allegations that they are Khalistan supporters, that police in Punjab harmed the principal and associate claimants, detaining them, torturing them, and accusing them of helping militants. I also accept the principal claimant’s testimony that police continue to visit his mother’s home and that his mother has informed them that the claimants are hiding in Canada.
[24] In support of their claim, the claimants submitted documentary evidence including, but not limited to: photographs of the principal claimant reading scripture at the front of a Gurdwara; thumbnails for two videos of the principal claimant being interviewed after voting at the Khalistan referendum in Canada; photos of the principal claimant participating at Khalistan rallies in Canada; a translation of a declaration from the principal claimant’s mother which restates the claimants’ general narrative; birth certificates; and articles from Indian media that portray Khalistan supporters as terrorists funded by Canadian sources. The claimants also provided, in their submissions received on October 23, 2023, copies of voter registration cards (one for the principal claimant and one for the associate claimant) for the Khalistan Referendum, issued by the Sikhs For Justice organization. They also provided a copy of the principal claimant’s backward caste certificate.
[25] In the hearing, I asked the principal claimant how he had made his support of Khalistan known. The principal claimant responded that he had participated in the Khalistan referendum, protested in favour of Khalistan outside his gurdwara, and had spoken about his participation in a news interview that has also been shared online. The claimants provided their voter identification card for the referendum and footage of the principal claimant participating in said interview. I give this footage weight. Overall, I accept that the claimants participated in the referendum and made their participation publicly known.
[26] The principal claimant, in his testimony, stated that, after he came to Canada, he learned that Punjabi people do not get justice in India and he became interested in supporting an independent Khalistan. The principal claimant expressed some familiarity with the history of the Khalistan movement, describing previous efforts to make Khalistan independent. He also outlined various demands such as making Amritsar a city without alcohol or tobacco and that sermons should be broadcast via speakers there. He also cried when stating that people should not desecrate the temple there and referred to the events of 1984. I find that the principal claimant’s testimony on these matters was credible. I therefore believe that the principal claimant is genuinely in favour of Khalistan.
[27] I asked the associate claimant about her political opinions but found her answers to be less comprehensible. She stated that she had to vote in support of Khalistan. I asked why she wanted to vote in support of Khalistan. The associate claimant responded that it was a demand for all Sikhs and added that she did not understand the question. I further asked why she voted in the referendum to which she responded that Khalistan is a demand for Sikhs and all religions should be treated equally.
[28] Based on the principal claimant’s testimony and the corroborative documentary evidence, I find, on a balance of probabilities, that the principal claimant is a genuine Khalistan supporter.
[29] I find that the associate claimant, while not clearly demonstrating an understanding of the Khalistan movement, has, by virtue of her voting in the referendum, her association with the principal claimant, and her arrest and harm at the hands of police alongside her husband, an imputed political opinion as a supporter of an independent Khalistan.
[30] I find that no evidence was adduced by the claimants and designated representative, either in testimony, the claimants’ narratives, or in the supporting documents, to demonstrate that the minor claimants have been threatened or harmed due to their status as the children of the principal and associate claimants. I note that the Chairperson’s Guideline 3 (cited above) states that, in order to establish a nexus to the particular social group of the family, claimants must establish that they will be targeted by agents of persecution because of their family connection, and that they must also demonstrate a serious possibility of persecution due to said family connection.[8] As evidence has not been adduced to demonstrate that the minor claimants were threatened, harmed, or are being sought by the agents of persecution, I find, on a balance of probabilities, that they do not face more than a mere possibility of persecution due to their familial connection to the principal and associate claimants. Therefore, I do not find that they have established a nexus to the particular social group of family.
Well-Founded Fear of Persecution, Principal and Associate Claimants
[31] When assessing a claim for refugee protection I must look at whether claimants have a well-founded fear of persecution, which involves both a subjective fear element and forward-facing objective basis for that fear. Based on all the evidence before me, I find, on a balance of probabilities, that there is a serious possibility of persecution if the principal and associate claimants returned to India. I will present my findings for the minor claimants further below.
[32] I acknowledge the evidence in the National Documentation Package (NDP) is mixed on the treatment of those who support the creation of Khalistan. Some of the country condition documents do indicate that some individuals who advocate for an independent Khalistan can face problems from opposing political parties and the government. The recent IRB Response for Information Request (RIR) in NDP tab 4.16 provided the following information: that, according to India’s National Investigation Agency (NIA), 10 individuals were charged for carrying out online propaganda activities and arson in 2017-2018 and 2020 whilst receiving direction and funding from SFJ contacts outside of India; that according to the Indian news source the Economic Times, the Indian state blocked 40 SFJ websites in 2020; that, according to the Times of India newspaper, Indian authorities invoked the National Security Act against a Khalistani preacher who was allegedly undermining peace in Punjab and had supposed links to the SFJ organization; and that, according to the Times of India, Punjab police arrested three individuals who had secessionist pamphlets.[9] NDP tab 4.16 also cited Indian media sources’ quoting of Indian state authorities condemning the SFJ organization as a radical and terrorist organization. As per this information, I accept that Indian authorities have been charging and detaining individuals in Punjab who have been involved in arson, handing out pamphlets, and carrying out online propaganda activities.
[33] I also note the following from the IRB’s recent RIR concerning how perceived Khalistan supporters are treated in India outside of Punjab.[10] In this source, representatives from the World Sikh Organization (WSO) and an emeritus Professor stated that if a Khalistan supporter lived outside of Punjab and their political beliefs become known, they would face harassment and discrimination and would be at risk of violence from those in their local communities. The RIR provided the following examples: that a Khalistan supporter who was hiding in Bengaluru was located and arrested by police; that, according to Hindu, an Indian English-language newspaper, three alleged Khalistan supporters were arrested in Delhi and that police stated that these individuals were planning killings and had obtained weapons to do so; that, according to the Hindustan Times, authorities in Himachal Pradesh arrested someone for displaying Khalistan flags and writing graffiti at the legislative assembly.[11] While I accept that these specific examples occurred, I note that this only a small number of examples and the majority involve individuals coming to the attention of state actors due to their use of planned violence or highly visible actions in support of Khalistan.
[34] In contrast, I note that the most recent U.S. Department of State report in NDP tab 2.1 on India provides a current, independent, and comprehensive assessment of the human rights situation in the country. This report does not indicate that the government represses those who demonstrate or promote Khalistani independence.[12] Nor does the U.K. Home Office report in NDP tab 12.14.[13] Impartial sources such as the Department of Foreign Affairs and Trade report in NDP tab 1.5 also does not explicitly state that pro-Khalistan supporters are persecuted, and simply cites a recent incident in which protestors for and against Khalistan clashed in April of 2022, leaving to individuals injured. The same source also notes that a separatist leader was arrested in May of 2023.[14] I prefer the evidence found in these diplomatic reports over statements by an individual emeritus Professor or the World Sikh Organization. However, I do find that there is objective evidence to demonstrate that some Khalistan supporters are at serious risk of being targeted in Punjab specifically.
[35] I note NDP tab 12.8 in which an Indian news source reported that a man, whose son was studying in Canada, claimed to have been summoned by Punjab police to provide his son’s passport information because of his son “liking” a social media post pertaining to the Khalistan 2020 referendum, and that this man ultimately had to pay a bribe to resolve the matter.[15] I find that the preponderance of the objective evidence in the NDP does not demonstrate that low-profile pro-Khalistan supporters face a serious possibility of persecution from either state or non-state actors, particularly outside of Punjab. However, I accept that, once someone has attracted the attention of state actors in India, and has made pro-Khalistan views publicly, there is a serious possibility that they will be persecuted by state actors in India.
[36] In summary, considering the objective evidence, the interest shown in the principal claimant by Indian state actors in his previous arrests and detentions, and the principal claimant’s own credible evidence about his political opinion, and his demonstrated sharing of pro-Khalistan views and criticism of the Indian government in a televised interview, I am satisfied that, based on the principal claimant’s political opinion, there is a serious possibility that he would be subjected to detention and treatment from state actors amounting to persecution. Based on all the evidence before me, I find that the principal claimant has established that he faces a serious possibility of persecution on account of his political opinion in India. Further, I find that the associate claimant would also, by virtue of her imputed political opinion, face a serious possibility of persecution if she were to return to India.
Well Founded Fear of Persecution, Minor Claimants
[37] As for the minor claimants, I do not find, on a balance of probabilities, that there is a serious possibility of persecution if they returned to India. I note that based on the evidence, Punjab police, RRS members, and BJP members, have never threatened or attempted to harm the principal claimant’s children during the time in which they harassed, detained, and extorted the principal claimant. Nor has evidence been adduced to demonstrate that the agents of persecution have expressed an interest in the minor claimants since the claimants came to Canada. While the objective evidence discussed above indicates that some Khalistan supporters are targeted by state actors, I do not find corroborating evidence that minors who are family members of adult Khalistan supporters are targeted with violence by state actors or Punjab police. I find that the minor claimants have not established that they face more than a mere possibility of harm due to their association with the principal and associate claimants should they return to India.
State Protection
[38] States must be presumed capable of protecting their citizens, except in situations where the state is in complete breakdown. To rebut this presumption, the onus is on the claimants to establish, on a balance of probabilities and through clear and convincing evidence, that their state’s protection is inadequate. I note that the more democratic a state, the harder it is to displace this presumption[16]. I find that the claimants have rebutted this presumption.
[39] The principal and associate claimants both testified that police in Punjab detained them and accused them of supporting Khalistan militants as well as tortured the adult claimants. Even if this were not the case, given the objective evidence regarding the poor state of law enforcement in India, I find, on a balance of probabilities, that adequate state protection would not be forthcoming to the adult claimants.
[40] According to the objective evidence, India is a multiparty, parliamentary democracy in which civil liberties are constitutionally guaranteed.[17] However, Indian citizens often encounter substantial obstacles when seeking justice, frequently facing demands for bribes and challenges in even getting the police to investigate an alleged crime. Further, the police forces face problems with corruption, poor staffing, and the country has a backlogged justice system.[18] I also note, as per OSAC’s report in NDP tab 7.1, that there is a low level of trust in police in India as many law enforcement officials there are in receipt of bribes or even directly involved in crime themselves.[19]
[41] Given these conditions, I find that if the principal and associate claimants were to return to India and seek state protection against the police who detained and tortured the principal claimant, and who detained and sexually assaulted the associate claimant, it is unlikely that adequate state protection would be forthcoming. I therefore find that the presumption of state protection has been rebutted in the case of the claimants.
Internal Flight Alternative
[42] At the hearing, I proposed the possibility of Mumbai as a potential IFA. I have considered whether the adult claimants have a viable IFA in India and have concluded that they do not.
[43] The IFA test has two prongs. For the first prong, I must be satisfied that there is no serious possibility the claimants would be persecuted or that the claimants would be personally subjected to a danger of torture or to a risk to life or a risk of cruel and unusual treatment or punishment in the IFA. For the second prong, I must be satisfied that the conditions in the IFA are such that it would not be unreasonable in all the circumstances, including those particular to the claimants, for them to seek refuge there.
[44] Once the Claimants are given notice of a proposed IFA, the onus is on the Claimants to establish that the proposed IFA is not viable.
[45] In this case, the evidence establishes that the Punjab police who harmed and detained the adult claimants remain in contact with the principal claimant’s mother, as they continue to visit her house and inquire into the claimants’ whereabouts. Further, the principal claimant testified that his mother informed the police that the claimants are currently hiding in Canada. The evidence also establishes that the police continue to convey threats against the claimants to the principal claimant’s mother. Therefore, I accept that the agents of persecution remain motivated to seek and harm the adult claimants.
[46] I also find that, given the agent of harm’s ongoing interest in harming the principal claimant, and the fact that the principal claimant vocally supports an independent Khalistan and appeared in interviews and online doing so, and given the likelihood that he will continue to express this political opinion, and given that there is some online monitoring of Khalistan supporters by Indian state actors, I find it likely that police in Punjab would be able to find the claimants’ location if they returned to India. I thus find on a balance of probabilities that the adult claimants would face a serious possibility of persecution throughout India.
[47] For these reasons, I find that the adult claimants do not have a safe internal flight alternative in India and thus the IFA fails on the first prong. Therefore, there is no IFA.
CONCLUSION
[48] I find that the principal and associate claimants are refugees pursuant to s. 96 of the Act and I accept their claims.
[49] I find that the minor claimants are neither convention refugees nor persons in need of protection pursuant to section 97(1) of the Act. Therefore, I reject their claims.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001.
[2] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board. Effective date: October, 2023.
[3] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board. Effective date: October, 2023.
[4] https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx#5
[5] See Exhibit 7.
[6] See Exhibit 2.
[7] Maldonado [1980] 2.F.C. 302 (C.A.)
[8] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board. Effective date: October, 2023. See section 9.2.1.
[9] National Documentation Package, India, 30 November 2023, tab 4.16: Situation and treatment of members of Sikhs for Justice (SFJ) and their family members by authorities, including those returning from abroad; overseas monitoring capabilities of the government (2020–May 2023). Immigration and Refugee Board of Canada. 31 May 2023. IND201492.E.
[10] RIR IND200932.E May 25, 2023 “India: Treatment of Sikhs by society and authorities, particularly the police; state protection; situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them; situation and treatment of Sikhs outside the state of Punjab by society and authorities; ability for Sikhs to relocate within India outside the state of Punjab (2020–May 2023).”
[11] RIR IND200932.E May 25, 2023 “India: Treatment of Sikhs by society and authorities, particularly the police; state protection; situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities; prevalence of arrests, including methods used by the police to track them; situation and treatment of Sikhs outside the state of Punjab by society and authorities; ability for Sikhs to relocate within India outside the state of Punjab (2020–May 2023).”
[12] National Documentation Package, India, 30 November 2023, tab 2.1: India. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[13] National Documentation Package, India, 30 November 2023, tab 12.14: Country Policy and Information Note. India: Religious minorities and Scheduled Castes and Tribes. Version. 3.0. United Kingdom. Home Office. November 2021.
[14] National Documentation Package, India, 30 November 2023, tab 1.5: DFAT Country Information Report: India. Australia. Department of Foreign Affairs and Trade. 29 September 2023. For these examples, see page 29 of the text.
[15] National Documentation Package, India, 30 November 2023, tab 12.8: Treatment of Sikhs by society and authorities, particularly the police; state protection; situation and treatment of suspected or perceived Sikh militants and Khalistan supporters in the state of Punjab by society and the authorities… Immigration and Refugee Board of Canada. 25 May 2023. IND200932.E.
[16] Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689.
[17]National Documentation Package, India, 30 November 2023, tab 2.1: India. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[18] National Documentation Package, India, 30 November 2023, tab 2.6: India. Freedom in the World 2023. Freedom House. 2023.
[19] National Documentation Package, India, 30 November 2023, tab 7.1: OSAC Country Security Report. India. United States. Overseas Security Advisory Council. 18 October 2022.