Citation: 2019 RLLR 44
Tribunal: Refugee Protection Division
Date of Decision: December 10, 2019
Panel: Paul Fitzgerald
Counsel for the claimant(s): Miguel Mendez
Country: India
RPD Number: MB8-21731
Associated RPD Numbers: MB8-21773
ATIP Number: A-2020-01124
ATIP Pages: 000022-000029
REASONS FOR DECISION
INTRODUCTION
[1] This is the decision of the refugee protection division in the claim for refugee protection of [XXX], the claimant, and [XXX], the co-claimant, citizens of India. They claim refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).1
DETERMINATION
[2] Having considered all of the evidence, including the claimants’ testimony, the panel finds that the claimants face a risk to their lives or to a risk of cruel and unusual treatment at the hands of highly-politically connected gangsters. The panel therefore finds that they are “persons in need of protection” pursuant to section 97 of the Act and accepts their claims.
ALLEGATIONS
[3] The claimant’s detailed allegations are contained in his Basis of Claim Form (BOC)2. In summary, the claimant fear serious harm or death at the hands of [XXX] and [XXX], well-known local gangsters that have the political backing of powerful politician Bibi Jagir Kaur and the tacit support of the Punjab police.
[4] The claimant was working on his farm when he heard shouting and discovered a man being savagely beaten by the local gangsters. He called police who later invited him to make a statement. Two days later, the claimants and their minor son were accosted and beaten by [XXX], who told them to withdraw the complaint.
[5] The claimants described a cycle of altercations with [XXX] and/or the police, where an incident would happen, they would report it to the police, and physical violence would occur, sometimes at the hands of the gangsters and sometimes as the hands of the police.
[6] The claimants described their frustration at realizing that at least in parts of the Punjab, the gangsters have support in certain political quarters and the tacit, if not active, support of the police.
[7] On two occasions, the claimants fled their village to other parts of India, notably [XXX] in Haryana and [XXX] in the Punjab. They were finally told by a lawyer that they could not prevail against politically-connected gangsters with tacit backing of the police.
[8] However, the event that provoked their departure from India was the kidnapping of their then 9-year old son and the realization that their enemies would stop at nothing and the police would not protect them.
Identity
[9] The claimants’ personal and national identities as citizens of India are established on a balance of probabilities by their testimony and by the documentary evidence on file, including a copy of their Indian passports.3
ANALYSIS.
Credibility and State Protection
[10] Testimony provided under oath is presumed to be truthful unless there is a reason to doubt its truthfulness. In this case, the Panel has no reason to doubt the claimants’ credibility. Their testimony was spontaneous and sincere, and was consistent with the allegations in the claimant’s BOC. Therefore, the Panel finds the claimants to be credible witnesses and believes, on a balance of probabilities, the allegations contained in their claim.
[11] The claimant told the panel on various occasions that he regretted ever taking an interest in the incident that caused the death of the man on his farm. He had just returned from working 7 years in Saudi Arabia and regretted making that first phone call to the police.
[12] During their testimony it became obvious that their various attempts to solicit police involvement was nothing less than a sincere, repeated call for State Protection, which fell on deaf ears and in many cases provoked reprisals and/or torture from the gangsters or the police.
[13] In their BOC4 the claimants alleged that the Punjab police, now convinced that the claimant was not a criminal, had identified him as a witness who testimony was necessary to secure the conviction of the people who have savagely beat and ultimately killed the man on the claimant’s farm.
[14] The claimants described how they left Punjab and relocated in the co-claimant’s home town of [XXX], some [XXX] km away, in the neighbouring state of Haryana. At the hearing, the claimant explained how the Haryana police, with the participation and at the request of the Punjab police, had gone to the house in [XXX], detained the claimant and returned him to the Punjabi police in his home town, where he was beaten and reminded of this obligation to cooperate with the Punjabi police.
[15] The claimant described his complete frustration in realizing that while the police said they wanted to arrest the people responsible for the death of the man on his farm, the police were willing to consider any persons except the two guilty persons, namely, [XXX] and [XXX]. He stated that he was unwilling to falsely accuse an innocent person and stated he desperately wanted to avoid further negative interactions with the police.
[16] Unwilling to falsely accuse an innocent person, and wanting to avoid further negative interactions with the police, the claimants stated stayed briefly with friends in [XXX], another town in Punjab, returning home after the friend’s wife expressed concerns about possible increased danger to the friend’s family.
[17] The single most important allegation was that the gangsters, [XXX] and [XXX], had kidnapped or arranged for the kidnapping of their minor son [XXX], then aged 9, on [XXX], 2018, as he played in front of the family home.
[18] The co-claimant described an initial frantic, desperate search for her son, fainting due to low blood pressure, the network of friends that searched for him and the posters they distributed with his picture.5 The claimants were dismayed at realizing that the police would offer no assistance whatsoever, and told the Panel that they feared that their son had joined the ranks of Indian children, whose organs are harvested.
[19] They stated that they continued searching for their son, contracted an agent, and came to Canada on [XXX], 2018, by which time the co-claimant was three months pregnant.
[20] They testified that by chance, on [XXX], 2019, their son was found begging by relatives at a celebration of Sikh culture in [XXX] in Punjab.6 He is now living with the co-claimant’s mother and brother in [XXX], in the neighbouring state of Haryana.
[21] When asked how the child had fared during the nearly 11 months during which he had been kidnapped, the co-claimant said the child had initially been uncommunicative and a doctor had told them that the child was very scared and should not be left alone.
[22] The co-claimant testified that the day her mother gave her the news that [XXX] was free she was the happiest person in the world and also the saddest person in the world because she could not be with him.
[23] The co-claimant testified how she had felt anguish, when her mother had not let her see her son’s face for fear of provoking a reaction that would harm her unborn grandchild. She described her heart retching agony and not being able to answer her son’s repeated question, “Momma bring me closer to you!” Due to the child’s fear, [XXX] has not left his grandmother’s house since arriving there.
[24] The infant, [XXX], was born in Montreal on [XXX], 2019 and had [XXX], which the mother blames on the stress she was under in her final trimester of pregnancy. Fortunately, surgery on [XXX], 2019 has since cured the infant’s defect.
[25] The claimants submitted a letter from Sophie [XXX], a Quebec social worker7 who has dealt extensively with the family. It describes the tremendous stress the family is under. To show her support, Ms. [XXX] came to the hearing.
[26] The Panel finds the claimants’ behavior to be generally consistent with that of persons who cannot return to their country.
[27] Having found that the claimants are being pursued by highly-politically connected gangsters, with tacit police support, the Panel finds that they face a genuine risk to their lives or to a risk of cruel and unusual treatment or punishment and that they have rebutted the presumption of state protection with clear and convincing evidence.
Internal Flight Alternative
[28] The Panel proposed Delhi and Yamuna Nagar as Internal Flight Alternative locations.
[29] The IFA analysis is a two-prong test:8 (1) the claimants bear the burden of proof to demonstrate, in the proposed IFAs, that they would face a genuine risk of cruel and unusual treatment or punishment or that, on a balance of probabilities, they would be personally subjected to a risk; (2) the claimants bear the burden of proof to demonstrate, on a balance of probabilities, that it would be objectively unreasonable or unduly harsh to relocate to the proposed IFAs: “it requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant”.9
[30] Prior to considering seeking refuge in Canada, the claimants had sought refuge in [XXX] in Punjab and as well in the co-claimant’s home town of [XXX] in the neighbouring state of Haryana. They testified that they had been surprised by the level of cooperation between Punjab and Haryana police in finding the mail claimant and returning him to Punjab.
[31] They testified while they were seeking refuge in [XXX], the Haryana police had escorted the Punjab police to the home in which the claimants were staying and the Punjab police had arrested the claimant and brought him back to Punjab, where he was beaten.
[32] In order to meet both criteria of the IFA two-prong test in the current context, there cannot, on a balance of probabilities be any information sharing between the police in Punjab and those in other states.
[33] The objective country documents before the panel establish that the Indian police at a national level are rolling a police database called Crime and Criminal Tracking Network and Systems (CCTNS)10 and that “94 percent of police stations across India have CCTNS hardware deployed”11 but that the degree to which the database is used and whether it is being used efficiently is hard to confirm.12
[34] The objective country documents before the panel also confirm that the CCTNS is also being connected to tenant registration systems in order to give the police the power to “verify tenant information.13 As with CCTNS itself, this capability has not yet been fully deployed.14
[35] Although the degree of implementation of CCTNS and its link to tenant information varies by State, the more recent documents confirm progress is being made.15
[36] Thus, the Panel concludes, on a balance of probabilities that the Punjab police would be able to locate the claimants anywhere in India, and that the claimants face a genuine risk to their lives or to a risk of cruel and unusual treatment or punishment.
[37] Having found that the claimants face a genuine risk to their lives or to a risk of cruel and unusual treatment or punishment at the hands of highly-politically connected gangsters, with tacit police support, the panel finds that they have a genuine fear of harm in India, that they have rebutted the presumption of state protection with clear and convincing evidence, and that there is no viable internal flight alternative for them anywhere in India.
CONCLUSION
[38] Having considered all of the evidence, the panel finds that the claimants face a genuine risk to their lives or to a risk of cruel and unusual treatment or punishment at the hands of highly politically connected gangsters, with tacit police support. The panel therefore finds that they are “persons in need of protection” pursuant to section 97 of the Act and accepts their claim.
(signed) Paul Fitzgerald
December 10, 2019
1 Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.
2 Document 2.1 – Basis of Claim Form MB8-21731
3 Document 1 – Package of information from the referring Canada Border Services Agency./ Immigration, Refugees and Citizenship Canada. Passport.
4 Document 2.1 – Basis of Claim Form MB8-21731.
5 Document P-1 – Picture of missing children, picture of their son of [XXX] that was missing.
6 Document P-13 – Letter from [XXX], [XXX]’s mother.
7 Document P-5 – Lettre de la Travailleuse sociale, [XXX], le 7 octobre 2019.
8 See for example Iyere v. Canada (MCI), 2018 FC 67, paras. 30-35.
9 Ranganathan v Canada (MCI), [2001] FCR 164,266 NR 380 (FCA), para. 15.
10 Document National 3 – Documentation Package, India, 31 May 2019, tab 10.6: Response to an information request IND106120.E, Immigration and Refugee Board of Canada, 25 June 2018.
11 Ibid.
12 Ibid.
13 Document National 3 – NDP, tab 14.8: Response to an information request IND106289.E, Immigration and Refugee Board of Canada, 14 May 2019.
14 Ibid.
15 Ibid.