R. (N. W.) (Re) Convention Refugee Determination Decisions

R. (N. W.) (Re)
Convention Refugee Determination Decisions [1991] C.R.D.D. No. 466

No. U91-00233

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

Panel: A. Ker and B. Menkir In camera

Heard: May 17, 1991

Decision: July 8, 1991

Appearances:

Laron Paul Hopkins, for the claimant(s).

Joel Rosen, Refugee Hearing Officer.

REASONS FOR DECISION

The claimant, xxxxxxxxxxx, is a forty-six year-old citizen of India. He arrived in Canada on January 25, 1986, and claims to be a Convention refugee by reason of his political opinion and membership in a particular social group.

The hearing before the Refugee Division took place on May 17, 1991, at Toronto, Ontario. The claimant was represented by Laron Paul Hopkins, Barrister and Solicitor. The panel was assisted by Joel Rosen, Refugee Hearing Officer. An interpreter proficient in the Punjabi and English languages was present throughout the proceedings.

The issue before us is to determine whether the claimant is 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). The definition reads in part as follows:

"Convention refugee" means any person who

(a)by reason of a well-founded fear of persecution for reasons of race, religion, and 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...

The evidence presented at the hearing consisted of the testimony of the claimant, as well as documentary evidence submitted by counsel for the claimant and by the Refugee Hearing Officer. The Refugee Hearing Officer advised counsel that the Refugee Division would use the Standardized Country Files (SCF) with respect to India (Standardized Country Files: India, Immigration and Refugee Board, Toronto, April 1990) and provided counsel with an index to the file.

The claimant gave the following testimony.

He was born and educated in the village of Alachor in Punjab, India, and worked as a self-employed truck driver in his village from 1975. In 1978, the claimant joined the Akali Dal party which at that time promoted the interests of Punjab by calling for fair distribution of water, electricity, agricultural products, etc. He was a 'third class' member of the Akali Dal, whose duties were limited to distributing pamphlets and transporting party members from place to place when called upon to do so.

In January or February 1978, the claimant attended a large rally of the Akali Dal in the town of Chandigarh, some 18 kilometres from his home village. The rally was dispersed by Punjabi police who used batons and rifle butts to break up the meeting. The claimant was able to flee to his home in Alachor without incident. Some fifteen days later, the claimant was asked to transport Akali Dal members to another rally in Chandigarh. He joined forty or fifty truckers in a convoy to Chandigarh. At the drop-off point, Punjabi police appeared. The claimant was pulled out of the cab of his truck and thrown in the back along with his passengers. Two police joined the group in the back of the truck. Two other Punjabi police got in the cab and drove the truck some 200 miles to a remote spot in the jungle in Uttar Pradesh, dropping the passengers in the truck here and there en route. When the truck reached its destination, the claimant and three other members of Akali Dal were in the back. They were forcibly removed from the truck and set upon by the police. The claimant was so badly beaten that he lost consciousness. When he revived, he and the other three party members - all of them badly beaten - found their way to a village where their wounds were treated and they were taken to the train station.

When the claimant arrived home, his wife told him that the police had been at their house on two occasions looking for the claimant. Upon hearing this, the claimant left at once for Delhi where he stayed with trucking friends until he left for Canada in August 1978. The claimant was able to gain entry to Canada by using the passport and landing papers of his brother, a landed immigrant in Canada, who had died in Canada in 1976. The claimant made a claim for refugee status through an immigration lawyer. The matter was not concluded, however.

In November 1979, the claimant returned to India to visit his wife and four children. The family moved to Calcutta where the claimant worked as a truck driver. In July 1980, the local police came to the claimant's employers, asking to question the claimant, who was out on a job at the time. When the claimant learned of this, he returned at once with his family to Delhi. The claimant made arrangements to go to New York and sent his family back to his native village. He stayed in New York from August 1980, until December 1980, when he returned to Canada. The claimant further pursued his refugee claim in Canada, again with no results. In June 1982, the claimant returned to Alachor to visit his family. In August 1982, he returned to Canada because of the political instability in Punjab, India.

In January 1986, the claimant returned again to Alachor to visit his family. He went to his home surreptitiously and returned to Canada the same month. Shortly after his re-entry into Canada, the claimant was arrested and charged with personation for having used his brother's passport and landing papers. The credible basis hearing of his claim to be recognized as a Convention refugee was held on January 11, 1991. The claimant concluded his testimony by stating that he was afraid to return to India because of his previous political activities, his previous treatment at the hands of the police, the visit of the police in Calcutta and current conditions in Punjab.

In order for the claimant to be determined a Convention refugee, the evidence must establish that he has good grounds for fearing prosecution should he return to India (Adjei v. M.E.I., [1989] 2 F.C. 680 (C.A.) ) for one of the reasons set out in the definition of Convention refugee. The claimant bases his claim on his political opinion and on his membership in the Akali Dal party.

The panel notes that the claimant's sole encounter with the police took place in February 1978, some thirteen years ago. Although the claimant was sought for questioning by police in Calcutta in 1980, we are not persuaded that this was due to the claimant's political activity in Punjab in 1978. The claimant did not wait to find out why the police wanted to question him. He chose instead to flee. In view of claimant's limited political activity, we are led to believe that it was for reasons other than political reasons that the claimant was sought.

The documentary evidence shows that life is difficult for many Sikhs in Punjab. There are arbitrary arrests, and the police are known to violate human rights. We note, however, that in 1990 the government of Prime Minister V.P. Singh repealed the constitutional amendment that suspended human rights in Punjab (Amnesty International Report 1990, Amnesty International, New York, 1990, Exhibit R-1-2) and made a concerted attempt to come to terms that would remove the need for the militant's violence. A careful reading of the documentary evidence does not lead us to conclude that every Sikh in Punjab has a well-founded fear of persecution solely because he or she is a Sikh. Additionally, we note that Sikhs can apparently live free of communal violence outside Punjab (Response to Information Request, Request Number 3192, Immigration and Refugee Board Documentation Centre, Ottawa, 6 December 1989).

We are not persuaded that the claimant requires Canada's protection. The UNHCR Handbook (Handbook on Procedures and Criteria for Determining Refugee Status, office of the United Nations High Commissioner for Refugees, Geneva, 1988) has this to say at paragraph 91:

91.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 and think it is entirely reasonable that the claimant could move elsewhere in India if his fear in Punjab is as great as he claims. The extensive documentary evidence makes it clear that the police in Punjab act as they do in response to the violence of Sikh militants who are active in that area. We have no reason to think that the police in Punjab would possibly view the claimant as so serious a threat that they would put out a countrywide alert for his arrest. Under the circumstances, we think that the possibility that he might have difficulties with the police elsewhere in India is negligible, and far below the test in Adjei (Adjei v. M.E.I., [1989] 2 F.C. 680 (C.A.))

In any event, the panel notes that the claimant returned voluntarily to India on three occasions after his confrontation with the police in 1978. This behaviour, we find, is inconsistent with the well-foundedness of the claimant's fear of prosecution should he return to India. Under the circumstances, we are not persuaded that there is a reasonable chance that the claimant has a well-founded fear of persecution should he return to India.

For all the above reasons and after careful consideration of all the evidence adduced at the hearing, the panel is led to conclude that the claimant does not have good grounds set out in the definition of Convention refugee.

The Refugee Division, therefore, determines xxxxxxxxxx not to be a Convention refugee.

Dated at Toronto this 8th day July 1991.

"Anna Ker,Q,C." Concurred in by: "Birku Menkir" End of document.