N. (X.P.) (Re) Convention Refugee Determination Decisions

N. (X.P.) (Re)
Convention Refugee Determination Decisions [1991] C.R.D.D. No. 438
No. U9-03367

Immigration and Refugee Board of Canada

Convention Refugee Determination Division

Toronto, Ontario

Panel: T.V. Jew and M. Abrahams

In camera

Heard: June 27, 1991

Decision: August 13, 1991

Appearances:

Lorne Waldman, for the claimant(s).

Margaret Anne MacLeod, Refugee Hearing Officer.

REASONS FOR DECISION

This is the decision by the Refugee Division on the claim for Convention refugee status made by xxxxxxxxxxxx, a citizen of India, who came to Canada on 6 May 1989.

He claims Convention refugee status on the basis of a well-founded fear of persecution by reason of his religion, political opinion and membership in a particular social group.

The hearing before the Refugee Division took place on 27 June 1991, at Toronto, Ontario. The claimant was represented by Lorne Waldman, Barrister and Solicitor. The panel was assisted by Margaret Anne MacLeod, Refugee Hearing Officer (RHO). An interpreter proficient in Punjabi and English was present throughout the proceedings.

The issue before the Refugee Division is to determine whether the claimant is a convention refugee as defined in section 2(1) of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 1]. 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...

The evidence presented at the hearing included the testimony of the claimant and of documentary evidence presented by counsel for the claimant and by the RHO. The RHO advised counsel that the Refugee Division would refer to the standardized Country Files [Exhibit R-1, Standardized Country Files: India, Immigration and Refugee Board, Toronto, May 1990) (SCF) with respect to India and was provided with a copy of the Index to that file.

The claimant's oral testimony, and Personal Information Form [Exhibit C-3), stated the following.

The events on which the claim is based are set out in response to question 33 of the PIF:

I am a citizen of India and of no other country. I faced persecution in India for reasons of my religion, political opinion and membership in a particular social group.

I joined the Indian Army on the 19th of January 1968 as a radio operator in the artillery regiment. I served in the Indian Army for 16 years and got retired in January 1984 and settled my family in my village Bishanpur. P.O. Mukerian Dist. Hoshiar Pur. I opened a radio shop at Mukerian and was living peacefully.

The Congress (I) government of Prime Minister Indira Gandhi believed that Sant Jarnail Singh Bhindranwale, along with other prominent Sikh leaders with the active support of a neighbouring country, were going to declare a separate Sikh state and the army of the neighbours was ready to attack in support. This resulted in the army attack on the Golden Temple and fourteen other Sikh shrines throughout the Punjab state of India in June 1984. The army attacked the Golden Temple on 3rd June 1984 and continued the attack until 7th June 1984. Thousands of pilgrims and innocent women and children were killed during the army attack. San Bhindranwale was killed along with other Sikh high priests. Prior to the army attack of 3rd June 1984 curfew was imposed on the whole of the Punjab state and shoot-on-sight orders were issued so that whoever came out of his house could be shot dead.

I had joined the All India Sikh Student's Federation in the month of March 1984. I believed in the ideology and objectives of the AISSF and decided to actively work for the party to achieve these goals. AISSF wanted a fair share for the Sikhs in the government and an end to exploitation of the Sikhs. I was also a member of the Gurdwara Parbandak Committee of the Mukerian Singh Shaba in 1984. Sikh religion and politics go side by side. My main work was to preach Sikh religious beliefs and I used to go to different villages to preach. Sikh preachers were in the bad books of the ruling Congress (I) party as it considered that we were the source of inciting the Sikhs against the Congress (I). While preaching religion I also preached the political rights of Sikhs and made the Sikh people aware of the injustices done to Sikhs by the government. Sikhs were deprived of their legitimate rights and were subjected to exploitation by the majority Hindus of India. Even in Punjab Sikhs were regulated by the central government.

For the above activities I was arrested by the police from my village Bishanpur for the first time on 07-06-1984 and I was taken to the police station at Mukerian and was tortured there and suffered cuts on my forehead while I was being tortured. I was released from the police station on 09-06-1984 after my father-in-law and my wife bribed the police. While being released I was asked by the police to leave the A.I.S.S.F. and join the Congress (I). I was told not to demand Khalistan, or criticize the ruling Congress (I) party.

During my first arrest on June 7, 1984 at 1:30 a.m., the army came in two trucks and two jeeps carrying about 50 - 60 soldiers and surrounded my house. They shouted at my mother-in-law when she opened the door and switched on the light, I also woke up and rushed to the courtyard. They shouted "hands up and come here". Another officer went near the light and opened his diary and asked if I was xxxxxxxxxxxxx. Come with me he said, walk in front of me he said. Soldiers followed me with weapons. I was pushed in the jeep and my turban was removed from my head. My eyes were blindfolded. I was brought to the B.S.P.S. Khalsa High school compound where the army camp had been set up. I was asked to sit in the verandah. It was about 2:30. Three chairs were brought out for a Major, a Captain and myself.

They asked "Why have you taken amrit (Sikh baptism) From who?" I replied my whole family are devout Sikhs, my father, myself, my wife all were and are Armritdharis. That is why we have arrested you, said the Major. Where did you take Amrit they repeated. In my village, there is a historic Gurdwara where the five Pyaras (beloved) of the Shiromani Gurdwara Prabandhak Committee came and administered amrit to the Sikh people including women and children. To take Amrit, people stand in one line and each takes a sip of Amrit from the same container despite differences in age, sex, class and religion and get baptized. I was baptized in a ceremony in the same Gurdwara.

I was asked to tell them who were the people who met Bhindraawale, if I can make a list. I said I had never met anyone nor have any relation with anybody with violent connections. I told them that I am a busy man in my business and farming. I only go to attend the religious functions. I had a neat and clean service in the Army. I got an "Exemplary" order while retiring. They said, "All this we know but you must tell us. You are aware that there are CID staff centres where people are interrogated, tortured, shot down. Tell us, give us the list." But I held on that I did not know. This went on till 4:00 a.m. My eyes were blindfolded. I was thrown into a room. They said "we shall give you time until tomorrow morning, if you agree to tell us we will let you off or else we will take you to the interrogation centres" In the morning a sentry removed the blindfold from my eyes and untied my hands. I was taken to the toilet and five soldiers accompanied me. Later in the morning, Hindus, Sikhs, Christians, schedule cast, agriculturists, members of the Panchayat all together nearly fifty people from my village came to the Army camp and pleaded my innocence to the Army major and requested my release. But he refused to release me.

On June 8, 1984 at about 1:00 p.m., an Inspector from CID of Mukeraian came to take me to the Interrogation Centre.

At about 9:00 p.m., I was forced to take off my clothes and I was tortured in a most inhumane manner such as Ghotma Bolna, log of wood was placed on my thighs. To my surprise, I found xxxxxxx xxxxx and xxxxxxxxxxxxx were undergoing similar tortures. I was tortured about the Armit distribution ceremony at my village. While I was being tortured, I was not allowed to have any water when I was thirsty. They gave me food and water whenever they felt like. Sometimes my legs were tied with my turban. Also I was thrown on the sand. Later that night, a number of men came in with lamps and I was beaten mercilessly with rifle butts and boots. This went throughout the night in three shifts, abusive words, pulling my moustache and beards and throwing sand on my hair continued. I injured my right leg during the torture. One of them said, "O sardarji" what happened to your resolution of Khalistan and prohibit of Bidhi and cigarettes in Punjab. Stop us if you have guts we are smoking. Another said was xxxx xxxxxxxxxxxx your brother-in-law. What happened to your great Bhindranwale, your protector. Many bad words were spoken against Harminder Sahib, the Golden Temple. I kept quite at the insults.

Then they said if you do not tell us we will take you to the big interrogation centre where you will be given electric shock and you will die as many others have died being electrocuted. I said I am a religious preacher and all I know about Bhindranwale is through the press, I am ignorant of and have no connection with the militant Sikhs. I said if this is my fate you may keep torturing but I am innocent. If you want to kill me I am prepared to die. Then I was again blindfolded and tied as usual and left in the room. Early in the morning, puss and blood was showing with my urine. I became nervous and fearful for my life.

On June 9, 1984, I was made to sign a statement that I was kept by the military men for the entire period of detention that my clothes and other goods have been returned back to me and I had been provided food and medical aid. Therefore I do not have any complaint against the army who arrested me for investigation purposes only.

The attack on the holy shrines of the Sikhs shocked the whole Sikh community in India and throughout the world. This attack on holy shrines and the killing of thousand of pilgrims and other innocent people has alienated the Sikh from the main national stream of Indian union, and the Sikhs vowed not to compromise other than by having a separate independent Sikh state of Punjab, where they are in majority. The democratic movement for Sikh causes was so harshly repressed by the central government that the Sikhs felt the necessity of liberating Punjab from India to save the Sikh people from the misery of Hindu rule.

The attack on the holy shrines of the Sikhs resulted in the assassination of Prime Minister Indira Gandhi on 31st October 1984 by her Sikh body guard. Planned riots were started on 1st November 1984 at the behest of the government. Sikh officers in the Delhi Police and other central security forces were disarmed and sent to barracks. Delhi, the capital of India, was the scene of communal violence and riots. The killing of Sikhs in Delhi was organized by Hindu members of parliament with the connivance of the Congress (I) party and Rajiv Gandhi, the Prime Minister of India.

When I went on religious functions I preached about these atrocities committed by the government. On 26th January 1986 my local area Akali Dal party wanted to celebrate the Republic day of India. The AISSF were against it. We wanted to protest in the form of Black Flag Day. We held black flags protesting the repression against Sikhs. All the congregated men and AISSF workers wore black turbans and the women and girls wore black veils. I arranged a demonstration in the school ground of Mukerian. While participating in the demonstration I was arrested by the police for the second time for my political activities along with many other supporters on 26 January 1986. I was illegally detained by the police along with other activists. In the police station, the S.H.O. tortured me and hit my mouth with a gun butt and three of my teeth were broken on the spot. I was really afraid that they would kill me without giving me a hearing or judicial trial. During the torturing my head gear was taken off and police pulled out my beard and hair. Thus my Sikh baptism was violated and my religion ridiculed. I was held for two days.

I was released without any conditions because of public pressure. The police station was encircled by Sikhs demanding the release of those arrested. When I was released I was warned that if I took part in any more political activities the rest of my teeth would be broken. I went, to the hospital to obtain a medical report for my broken teeth, but the civil surgeon of the government hospital declined to issue a certificate. The doctor was a Hindu who did not want to give me the proof of police torture. When the police have a hand in fettering judicial process one cannot expect justice.

An important point to be noted is that when Congress leader Mahatma Gandhi was shot dead by a Hindu named Nathu Ram Godse on 30 October 1948 for minor political differences not a single incident of rioting occurred in India, because the man who shot him was a Hindu. Now when Prime Minister Gandhi was shot dead by her own bodyguard who happened to be a Sikh, the whole Sikh community was punished and is being punished until now. This proved that the central government of India encourages racial and communal discrimination and violence.

Rajiv Gandhi prohibited Amnesty International, the Red Cross Society and other International organizations from entering the Punjab state for the last six years, because of repressive measures adopted by the police and killings of Sikh youths in false encounters. Draconian laws are put in force by presidential decree and without being passed in the parliament. Foreigners were banned and foreign reporters were restricted entrance into the Punjab state. All these actions of Rajiv Gandhi in the past show that he was not a true nationalist and he is bent upon taking revenge on the whole Sikh community for the killing of his mother, for which the country has to pay the price in the shape of disintegration.

Recently the then Prime Minister of India, V.P. Singh, agreed to lift the six year old ban on Amnesty International and Red Cross, imposed by the Rajiv Gandhi government. The Prime Minister agreed because of the intervention of the U.S. congress.

But Mr. Rajiv Gandhi, along with his Congress (I) and his other followers, are determined to oppose the move of Prime Minister V.P. Singh because they know that the wrong actions taken by the Rajiv Gandhi government against the Punjab and the draconian laws put in force and killing of Sikh youths in false encounters will be disclosed to the whole world through these organizations and news reporters.

Being a well-disciplined soldier I had served in the army for sixteen years in India. My, reward was that I was arrested by the police and had three teeth broken while being tortured. At the present time I am worried that my son may be killed in India as the son of my sister was killed in a false encounter by the Punjab police. His dead body was found floating in a canal.

Given all of these incidents, the army attack on the Sikh religious shrines and my being a Sikh, my thoughts were changed in favour of a separate Sikh state, Khalistan. Local Akali leaders and AISSF workers visited my shop. Political activities in favour of a separate Sikh state started taking place in my shop. I was taking a very active part in the movement. I became very popular amongst the Akali leaders and the All India Sikh Student Federation workers. These activities and processes continued for two years.

In the month of February 1988 I was asked by the local Akali Dal leaders and other Federation workers to perform the duty of the Akali party president for the area and create support for the All India Sikh Student Federation in their struggle against the government to achieve the desired goal of a separate Sikh state.

The police started summoning me to the police station from April 1988 to answer questions on my political opinion and active part in the movement against the government to achieve Khalistan. I was being closely monitored by the police.

In the first week of September 1988 police raided my shop in my absence and took away all the political material and other papers which could incriminate me. Immediately I was informed by the workers of the Federation and hence I went underground to avoid arrest. I was fearful from the two previous occasions of arrest and torture as when I was taken to the police station I was beaten and tortured by the police because they wanted to know the whereabouts of the Federation workers suspected of militancy and are wanted by the police in connection with the Sikh movement. I managed to contact a friend of mine in the police to find out about the police raid and action proposed against me thereafter. He told me that a case had been registered against me for my political activities under the National Security Act and also the police had issued an arrest warrant for me.

My family fled our house for fear of police harassment. After remaining underground for several months I managed to flee India on 6th May 1989 and come to Canada. If I return to India now I will surely be arrested and tortured and will be killed in a false encounter as has happened with my sister's son xxxxxxxxx xxxxx (xxxxx) and my sister's husband's brother xxxxxxx xxxxx. Both were Federation workers. This is happening to the Sikhs in the Punjab state quite regularly. I have never broken any laws or engaged in any acts of violence.

I am afraid to return to India for fear of my life and liberty. I wish to remain in Canada so that I can rescue my family from the tormenting Indian government.

[typed with errors and/or omissions]

The claimant provided the following additional information in his oral testimony.

He was baptized a Sikh in February 1984. About 60% of all Sikhs are baptized. All members of the All India Sikh Student's Federation (AISSF) are baptized.

He joined the AISSF in March 1984. The AISSF was legal at the time he joined. It was, however, banned by the government in March 1984, after the claimant had joined.

After the ban, the claimant attended secret AISSF meetings, which would be held in a private house. Some four to five members would usually be present.

The ban on the AISSF was lifted in April 1985, and meetings were again held openly.

About twice a month the claimant would be invited to preach at religious functions, and to give his views. He usually accepted the invitations.

In September 1988, he took his family to his Aunt's home in Jammu, out of Punjab State. While there, he was in hiding. He only went out early in the morning, or late at night.

Between September and December 1988, he returned twice to his own home to see if anything was happening. He stayed there for a couple of days.

In December 1988, he moved from his Aunt's home to that of his in-laws, in the village of Abdulhapur, which was about 8 km from his own home.

The order concerning the service of a summons [Exhibit C-5] was sent to the claimant by a friend in the police. (The panel notes that although it is indicated in the PIF that the claimant was advised in September 1988, that a summons had been issued, the date on the order concerning the service of a summons is 14 April 1989.) There is no documentary evidence to indicate that a summons, per se, was in fact served on the claimant.

The claimant renewed his passport in October 1986, but used an agent to do so. He obtained an exit visa in May 1989.

When the claimant was in Delhi from 25 April to 6 May 1989, he experienced no difficulties. Neither did he have any difficulty going through the immigration and security checks at the airport, when he left. He did, however, bribe a Delhi policeman, at a barrier some 2 km from the airport. The claimant indicated that this was a routine practice on the part of the police.

The claimant's pension, as a retired Havildar (sergeant) in the Indian army was, until he left India, deposited regularly into his bank account. He is not sure if this continues to be the case.

The claimant fears the Congress (I) party, and all Hindus.

To be determined a Convention refugee, the evidence must establish that the claimant has good grounds [Adjei v. M.E.I., [1989) 2 F.C. 680 (C.A.)] for fearing persecution for one of the reasons set out in the Convention refugee definition, should he return to India.

Had the claimant no option but to flee his country, we would probably determine him to be a Convention refugee.

It is our opinion, however, circumstances in India being what they are, that he could have moved to another part of that country, and lived there safely. The panel notes that he lived, safely in Jammu, outside the Punjab from September to December 1988. The panel notes too, that the claimant returned twice to his own home, during the same period, with impunity.

Documentary, evidence indicates that some 20% of Sikhs in India live outside Punjab, and makes no mention of their being in difficulties. Indeed, the attachment to the immigration and Refugee Board Documentation Centre (IRBDC) Response to Information Request Number 3192 [Exhibit R-2, item 2, Response to Information Request, Number 3192, Possible treatment of Sikhs or members of the AISSF who are involuntarily returned to India after an unsuccessful refugee status claim made while abroad], dated 20 August 1987, says, after speaking of the problems in Punjab, that:

Elsewhere in India, there is no striking Sikh-Hindu violence. Both groups live and work together in peace. The body of this Sikh in Delhi is about to be cremated on the same sacred ground that Hindus use for the same purpose.

Would the authorities pursue the claimant if he lived in India, outside the Punjab? The panel thinks not. He was released from prison on each of the two occasions that he had been arrested. Although these releases were achieved through bribery, given the documentary evidence describing what happens to known terrorists, it is the panel's opinion that the authorities do not really believe that the claimant associated with, or knew, terrorists. We consider it extremely unlikely that they would bother him further, as long as he remains outside Punjab. The authorities in the Punjab are fully occupied with the maintenance of law and order, without concerning themselves with this peaceful citizen, with no connection to Sikh terrorists. We further consider, that the chance of him being pursued by the authorities, once he has left the Punjab, would amount to only the merest possibility, not a serious one.

Paragraph 91 of the UNHCR Handbook [Handbook on Procedures and Criteria for Determining Refugee Status, Office of the United Nations High Commissioner for Refugees, Geneva, 1988], 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 hot 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.

Given the circumstances of this claimant, it is, in the panel's opinion, quite reasonable to expect him to move elsewhere in India. He has relatives in Jammu, with whom he has, and could, live in safety. It is the panel's opinion that he should do so.

Finally, the panel is not satisfied that the claimant's movements between September 1988, when he fled his home village, and May 1989, when he left India, are consistent with those of someone who considers his life to be in jeopardy.

For the reasons stated above, and after careful consideration of all the evidence adduced at this hearing, the panel is not satisfied that the claimant has good grounds for fearing persecution by reason of any of the grounds set out in the Convention refugee definition.

The Refugee Division determines, therefore, that xxxxxxxxxxxx is not a Convention refugee.

DATED at Toronto this 13th day of August, 1991.

"Michael Abrahams" Concurred in by: "T.V. Jew"

End of document.