E. (Q. J.) (Re) Convention Refugee Determination Decisions

E. (Q. J.) (Re)
Convention Refugee Determination Decisions [1991] C.R.D.D. No. 499

No. U91-03142

Immigration and Refugee Board of Canada Convention Refugee Determination Division Toronto, Ontario

Panel: H.R. Hanson and A. Witer In camera

Heard: July 31, 1991

Decision: October 8, 1991

Appearances:

Douglas MacIsaac, for the claimant(s).

Krista Daley, Refugee Hearing Officer.

REASONS FOR DECISION

On 31 July 1991, in Toronto, the Refugee Division heard the claim of xxxxxxxxxxxxxxxxxxxxxxx be a Convention refugee as defined in section 2(l) of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 1]. Mr. xxxxxx is a 23-year-old citizen of India who claims Convention refugee status on the ground of a well-founded fear of persecution based on his political opinion and membership in a particular social group. The claimant was represented by Douglas MacIsaac, Barrister and Solicitor, the panel was assisted by Krista Daley, Refugee Hearing Officer (RHO), and an interpreter fluent in the English and Punjabi languages served throughout.

The evidence adduced was the testimony of the claimant, his Personal Information Form [Exhibit C-2] (PIF), and documents submitted by the RHO and counsel for the claimant.

The claimant's PIF, whose accuracy and completeness were sworn to by the claimant, contains a detailed account of his experiences, reproduced below.

I have, for some number of years, worked on a full-time basis on my family farm assisting my family.

Neither I nor any member of my family were actively involved or associated with any political organization during our residency in India.

Beginning in approximately 1984, certain members of the Bhanderwala Tiger Force began using our family property and building for the purpose of obtaining food and water from our well and for the purpose of storing and retrieving weapons. As time passed, members of the B.T.F. began using our property and buildings more and more frequently.

My family and I had no choice but to accept the B.T.F.'s use of our property and buildings given that, if we objected, we would be murdered by them.

I believe the B.T.F. chose our particular property by virtue of the fact that it was well camouflaged and very large thereby providing the B.T.F. with the ability to hide and allude police in the event their location was discovered.

In approximately February, 1988, government agents somehow learned that the B.T.F. was utilizing our property. Consequently, while I was at home with my family, approximately 7 police, armed and uniformed, raided our property and forcibly entered our family home. After entering our home, the police made it very clear that they were searching for me and I turned myself over to them knowing that my family members would be physically abused by the police otherwise.

Thereafter, I was blindfolded, taken to the police station, and detained there for approximately 15 days during which time I was tortured, interrogated re: the B.T.F., and accused of being a member/supporter of the B.T.F.

Notwithstanding that I knew the names of some members of the B.T.F., I provided the police with no information and denied all knowledge about this organization. I took this position knowing that if I gave information concerning the B.T.F., the B.T.F. would murder my family and/or I and the police would murder me.

On this occasion, my father, the head of the village (xxxxxxxx) and other prominent members of my village went to the police station and used their influence to obtain my release.

By virtue of the torture I endured during this detention, I was barely able to walk for more than a month after my release.

Thereafter, the B.T.F. continued to use our property as they had before. However, after my detention, the B.T.F. came less frequently to our property.

Again, my family and I had no choice but to accept the fact that the B.T.F. would use our property for whatever purpose they wished. Nevertheless, the fact that they continued using our property meant that my family and I continued to be put at risk with the police.

1989:

At this time, police raided a farm where the B.T.F. was located and a battle between the police and the B.T.F. ensued.

Approximately 5 to 6 days thereafter, police again surrounded and raided our family farm.

At this time, the police physically attacked me and threw me into their vehicle without and before asking any questions of me. Again, I was blindfolded and taken to police stations and detained there for approximately 10 days during which time I was accused of being a member of the B.T.F., interrogated respecting this organization and severely tortured.

Again, I denied all knowledge of this organization but was, nevertheless, warned, upon my release, that antigovernment actions on the part of the B.T.F. would result in problems for me personally.

1990:

At this time, the killing of a policeman by the B.T.F., I believe, prompted the police to again come to my home for the purpose of detaining me at the police station for 4 to 5 days during which time I was again tortured and interrogated re: the B.T.F. and accused of being a member of this organization. At the time of my detention, I believed I would be murdered given that shortly before this detention two close friends of mine who were not associated in any way with the B.T.F. were murdered by the police on the suspicion that these two friends were somehow associated with the B.T.F.

I can only guess that I was not murdered by the police during this detention because of the fact that I endured severe torture without breaking and telling them names of B.T.F. members or any other information regarding this organization.

Nevertheless, at the time of my release, the police made it clear that they still suspected that I was a member of the B.T.F.

Immediately upon my release from my detention I fled my village, went into hiding and made such arrangements as were necessary to flee the country.

After arriving in Czechoslovakia, I learned that a servant on our family farm had been tortured and interrogated by police who were interested in knowing of my whereabouts. The servant informed police that I had fled the country.

I have no information regarding what has happened to my family by virtue of suspicions on the part of the police concerning me. I suspect, though, that my family has suffered greatly since the time that I fled India.

Were I forced to return to India, I believe my freedom and physical safety would be in grave danger. (Typed with errors and/or omissions]

In addition, the following relevant evidence was adduced through oral testimony and answers to various questions in the PIF.

The claimant has no personal identification papers at all. He has not contacted his uncle or his immediate family since arriving in Canada and has heard no news of them. He is afraid that if he writes the Indian police will know his address and will send agents to get him or will persuade the Canadian government to send him back.

Neither the claimant's father or brother worked on the farm; they operated the family store. The claimant's testimony in respect of whether the father was ever questioned is contradictory. At one point he testified that his father was not questioned by the police because they knew that, while he owned the farm, he was never there. At another point he said that the father was questioned and told the police that the claimant was involved with the BTF and was helping them.

The family farm is about eight kilometres from the home in the village. During the rice harvest the claimant used to live at the farm; in other seasons he came home to sleep. The farm represented a major source of income for the family. When their visits were most frequent, the BTF members came to the farm about once or twice a month. The claimant does not know how often they came outside the rice harvest season. He does not know what, if any, materials they might have hidden in the farm or its buildings. Although they searched, the police never found anything there.

All the questioning of the claimant by the police was in connection with the BTF. He was unable to name any other militant Sikh organizations operating in Punjab.

Prior to his October 1990 detention the claimant had read in a newspaper that the BTF had killed a policeman. On the occasion of that detention, his last, the police told him that the two boys whom they had killed had told them that the claimant was a member of the BTF. They had no proof, however, and the claimant admitted to nothing. When he was released he was told that when the police had proof they would come to finish him. He thinks that the two boys were killed because they were from poor families, and such people get worse treatment from the police than people who are richer.

When asked why he would not just stay away from the farm he replied that his occupation was farming, so how could he stay away. He also indicated that the family depended on the income from that farm.

Following his last detention, the claimant went to stay with an uncle in Uttar Pradesh. He was there for six to eight weeks, experiencing no difficulties with the authorities. His uncle obtained a false passport for the claimant and arranged with an agent to get him out of the country. He spent from December 1990 until early March 1991 in Czechoslovakia.

It was while in that country that he learned that the servant had been interrogated by the police and had told them about the BTF. It was impossible to determine just how this information was transmitted from the claimant's home village to his temporary residence in Czechoslovakia. Two main versions were provided in testimony; the uncle heard about it and phoned the agent who had remained with the claimant for 15 to 20 days; or the agent learned it from the uncle back in India and phoned the claimant. The claimant thinks the police would now consider that they had proof of his involvement with the BTF and would kill him if they come into contact with him.

He arrived in Canada and claimed Convention refugee status at Pearson International Airport on 5 March 1991. He has not readopted Sikh dress, on the agent's advice, because he thinks the Indian government may send someone here to look for him who would recognize him.

The issue before the panel is to determine whether the claimant is a Convention refugee as defined in section 2(1) of the Immigration Act. This definition reads in part:

"Convention refugee" means any person who

(a)by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i)is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country...

There are a number of things about the evidence that trouble the panel.

Why, for example, would the police question the claimant in connection with only the BTF, when, as the documentary evidence [see Note 1[1] below] clearly shows, there are many other, more powerful militant Sikh groups operating in Punjab? Why was the claimant unable to name any other militant groups, although he apparently reads newspapers? Why would the police not have questioned the servant on previous occasions when they had the claimant in custody as a suspected BTF supporter? Given the uncertainty about how the news concerning the servant was transmitted, is this evidence credible? If the servant was questioned, and he recounted all he had heard and seen, would it not be likely that the police would realize that the claimant was not voluntarily aiding the BTF? Was the claimant's father ever questioned by the police, and if he was would he have told them that his son was aiding the terrorists? Would the police have released the claimant if they genuinely believed that he was connected to a terrorist group? Are the reasons given for not wearing Sikh clothing and not contacting his family since he came to Canada credible?

In his helpful written submissions, counsel for the claimant has provided possible answers to many of these questions. We note, too, that the claimant did not, as he easily could have done, embellish his story with tales of further family troubles stemming from his own activities. While having some reservations about the story, we accept it in most particulars. Given the contradictory testimony in connection with it, we do not believe that the servant was questioned and told all after the claimant left India.

Like many young Sikhs in Punjab, the claimant is a natural police suspect when terrorist violence occurs. But, in the panel's view, the potential threat of detention and mistreatment for suspected terrorist sympathies would not face the claimant if he were to go to some other location in India. He lived without incident for some time with his uncle in Uttar Pradesh. We think he could have continued to do so. The claimant said that this was not a feasible option for him because he was a farmer and his family needed the income from the farm; he was the only family member who farmed. And yet the claimant has left the farm and no longer contributes to the family income. Whatever arrangements concerning the farm the family has made could have been made if the claimant was somewhere else in India rather than in Canada. We cannot find in the extensive documentary evidence anything to persuade us that young Sikhs are currently at risk in other parts of India.

Is there a reasonable chance the police would set out to find the claimant in another part of India? We think not. We have no credible evidence that the police are currently interested in him at all. Given his minimal involvement with the terrorists, and given that he was released by the police each time he was detained, we see no reason to think that he is considered a sufficiently serious threat to the authorities to make it worth their time and effort to try to track him down. Indeed, given the pressure on police resources demonstrated in the documentary evidence, we think that there is no possibility that this would happen.

The convention was designed to afford international protection to people who could find no safety or respect for their important human rights in their own country. Paragraph 91 of the UNHCR Handbook [see Note 2[2] below] reads as follows:

The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.

We find this persuasive. We find that it is entirely reasonable to expect this claimant to move to another part of India if he has a genuine fear of persecution in Punjab.

In our view, based on all the evidence before us, the claimant has failed to establish a well-founded fear of persecution in his homeland on any of the grounds in the definition.

Accordingly, the Refugee Division determines that xxxxxxxxxxxxxxxxxxxxxx is not a Convention refugee.

DATED at Toronto this 8th day of October 1991.

"H.R. Hanson" Concurred in by: "Andrew Witer"

End of document.