L. (Z.L.) (Re) Convention Refugee Determination Decisions

L. (Z.L.) (Re)
Convention Refugee Determination Decisions [1991] C.R.D.D. No. 236 No. U91-01674

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

Panel: J. Goldman and A. Leistra In camera

Heard: April 18, May 6, 1991 Decision: June 28, 1991

Appearances:

Yehudah Levinson, for the claimant(s).

John Peterson, Refugee Hearing Officer.

REASONS FOR DECISION

The claimant, xxxxxxxxxxxxxxx, is a citizen of India. He,arrived in Canada on September 28, 1990 and claims to be a Convention refugee by reason of a well-founded fear of persecution because of his religion, political opinion and membership in a particular social group.

The Refugee Division hearing into his claim was held on April 18, 1991 and resumed on May 6, 1991 at Toronto, Ontario. The claimant was represented by Yehudah Levinson, Barrister and Solicitor. The panel was assisted by John Peterson, Refugee Hearing Officer. An interpreter proficient in the Punjabi and English languages assisted the claimant throughout the hearing.

The documentary evidence adduced at the hearing consisted of the claimant's testimony and documentary evidence presented by counsel for the claimant and the Refugee Hearing Officer.

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 [as enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 1]. That 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 claimant provided the following testimony.

In January 1986 the claimant joined the All India Sikh Student Federation (AISSF), an organization which, the claimant stated, had been banned in 1984. Until he left India in September 1990, the claimant put up posters for that organizations and attended its meetings. The claimant did not hold any official position in the organization nor was he ever called upon to address a meeting. He was one of thousands of members, some 20 in each town, who were assigned to post posters. The claimant did so in the town of Ludhiana.

On December xx, 1986 the claimant was arrested while putting up posters. He was detained until January xx, 1987 and released when his father paid a bribe to a "senior police authority" [Exhibit C-2, PIF, schedule "A"]. Following his release the claimant reported his arrest and subsequent difficulties to the secretary of the AISSF and continued his activities on behalf of the organization. He was never apprehended again by the police.

In February 1987 the claimant left his home because he feared that he would be rearrested. For the next three years he lived in hiding in five towns in the Punjab, moving from town to town and living either with friends or relatives. He did not return to his home. From February 1987 until August 1989, when he left for Delhi, the claimant travelled to Ludhiana on numerous occasions in order to visit the secretary of the AISSF from whom he received posters which he then posted on the walls of the various towns in which he lived. The claimant stated that on some 10 to 15 occasions the bus on which he travelled to the secretary's home in Ludhiana was stopped by two soldiers and one policemen. They would inspect all the passengers and check them against photographs in their possession. The claimant was never identified in this manner even though he had been photographed on 6 or 7 occasions while he was imprisoned in Ludhiana. The claimant left the Punjab in August 1989 and remained in Delhi until he left India in September 1990.

The claimant stated that he experienced no difficulties in Delhi but did not wish to remain in a city far from his family where he did not have any employment and where he continued to live in hiding. However, while the claimant lived in Delhi he continued his political activities on behalf of his party. He maintained contact with the secretary of the AISSF in Ludhiana and received from him the posters he continued to put up in Delhi. The claimant was also in contact with leaders of his party in Delhi. According to the claimant's Personal Information Form [Exhibit C-2], it is they who advised him to leave India.

In March 1987 the police raided the claimant's home in search of him. Fortunately, the claimant had left his home a month earlier. The claimant was subsequently told by his mother and an uncle who was present at the time, that the police had a warrant for his arrest. The claimant stated that the police continued to visit his home every two or three months, even after his departure from India, as late as the end of December 1990 as indicated in the letters [Exhibit C-3] which where translated on the record by the interpreter. The letters indicate that in the second week of December 1990 the police had come on four separate occasions to inquire about the claimant's whereabouts. xxxxx, the claimant's brother who lives with the claimant's mother, wrote on December 29, 1990 that the family is "living fine here". Apparently, the claimant's brother did not experience any difficulty as a result of the police visits in search of the claimant. Although it appears from the claimant's testimony that the AISSF conducted its affairs quite openly (there was an AISSF office in every town and the posters indicated that the AISSF was responsible for their message and distribution. The posters openly enjoined people to meet at a temple which was mentioned in the posters) there is no indication that the secretary of the organization whom the claimant visited in Ludhianal or others assigned to put up posters ever experienced difficulties as a result of their activities.

In April 1989 the claimant learned that the police had arrested his father during their routine search for him in his home. The latter's bullet-ridden body was discovered in a field on May 19, 1989.

The claimant fears that should he return to India he will be arrested and possibly killed.

ANALYSIS

In order for the claimant to be determined a Convention refugee, the evidence must establish that there is a serious possibility [Adjei v. M.E.I. [1988] 2 F.C. 680 (F.C.A.)] that he would be persecuted for one of the grounds set out in the Convention refugee definition should he return to the Punjab.

The panel wishes to address the following issues in coming to its decision:

1.Is the claimant's fear of persecution by reason of his political opinion and membership in a particular social group well-founded should he return to the Punjab?

2.Is the claimant's fear "the fear that is felt indiscriminately by all citizens as a result of civil war" [Salibian v. M.E.I., (F.C.A., A-479-89), Decary, Hugessen, MacGuigan, May 24, 1990)] or is his fear a fear of persecution based on one of the grounds in the definition?

3.Could the claimant have sought refuge in another part of the same country and would it have been reasonable under all the circumstances to expect him to do so? [Handbook On Procedures and Criteria for Determining Refugee Status", Office of the United Nations High Commissioner for Refugees, Geneva, September 1979, paragraph 91]

The Punjab has been in the grip of violence since the declaration of the Punjab by Sikh militants as the independent state of Khalistan. The violence, between Sikh extremists and police, escalated markedly in 1986. The documentary evidence refers to police brutality in its efforts to curb Sikh extremist, often terrorist operations, not only against government enforcement agencies but also against moderate Sikhs.

The documentary evidence describes graphically the divisions within the Sikh community in the Punjab. There does not exist one collective vision among the various Sikh groups for the resolution of the Punjab problem. The peace agreement between the Indian government and the Akali Dal, a moderate Sikh party, which was concluded in July 1985, was scuttled by Sikh extremists who assassinated Longowal, the Akali Dal leader [Exhibit R-1, item 1, "Punjab: Issue Paper", Immigration and Refugee Board Documentation Centre, Ottawa, April 1990, pp. 16-17]. In 1988 there were some 35 extremist Sikh groups using violence to achieve their separatist goals [Ibid, p. 16]. According to the Immigration and Refugee Board Documentation Centre's "Punjab: Issue Paper" (p. 19], a series of measures designed to restore the situation in the Punjab to normal were introduced in 1989 by the Government of India. The leader of the Akali Dal believed the initiatives to be positive. However, to date, even the various moderate Sikh groups have failed to merge and to present a united front to the Government of India [Ibid, p. 22].

The 1990 United States Department of State report [India "Country Reports on Human Rights Practices for 1990", Washington, February 1991, p. 1426] describes the situation in the Punjab as follows:

In Punjab, despite government efforts to bring a political solution to the intractable problems of ethnic strife, violent activity by militants demanding a separate Sikh state, and lawlessness, the number of deaths escalated to 4,987 for the year... Press statistics showed the breakdown of deaths to be: 3,261 civilians, 467 security force members, 1,194 militant... Among those killed were the General Secretary of the All-India Sikh Students Federation, who was murdered by rivals in January, and a former Finance Minister of Punjab, who was murdered by Sikh militants in Chandigarh.

The "Punjab: Issue Paper" indicates that there are daily terrorist attacks against the civilian population, both Hindu and Sikh. "Terrorists generally strike at night, either by bombing or by indiscriminately shooting civilians" [p. 22]. The situation in the Punjab has deteriorated from a legitimate struggle for a separate state for the majority Sikhs into a fratricidal rebellion in which Sikhs belonging to numerous groups kill each other. The most violent incident perpetrated by terrorists in 1989 occurred last August, when Sikh extremists attacked a train: over 23 people were left dead [p. 24]. The documentary evidence indicates that the response of Indian authorities has often been harsh. The Indian Government, failing in its political and diplomatic efforts to bring normalcy to the Punjab, has resorted to harsh measures and has been accused of violating human rights. The situation in the Punjab can, thus, be characterized as a civil war situation. It is against this background that the panel must assess the claim before it.

With respect to the first issue, the panel finds that the claimant's fear of persecution by reason of his political opinion and membership in a particular social group is not well-founded for the following reasons.

It is not plausible to the panel that the claimant was released in January 1987 through the intervention of a senior police official only to be sought for arrest two months later. The panel also finds it implausible, given the escalating violence in the Punjab and the many terrorist actions and government reprisals during this period and given the claimant's limited political involvement that the police would return to search for the claimant for almost four years on a regular basis. The claimant was a rank-and-file member of his organization and had never taken a prominent role in the bi-monthly meetings which he attended while he was in India. He was one of thousands whose task was putting up posters. Although he had been arrested in Ludhiana and had served his relatively brief prison sentence there, he continued to travel back and forth to that town on numerous occasions for more than three years with no ill effects. Nor was he ever identified by the police during the 10-15 inspections on route to Ludhiana, the town in which he had been arrested in 1986 and where he had served his sentence, even though his photograph had been taken on some six or seven occasions at the time of his arrest. Counsel argued that he may have escaped arrest on these occasions because his position in the AISSF was only that of a "foot soldier". However, had we accepted the claimant's testimony that the military visited his home every two or three months, for a number of years, we would have had to draw the conclusion that the military considered him to have a high profile and his detection would have been likely as a result. There is, as well, no indication in the testimony that the secretary of the AISSF organization, knowing the claimant's difficulties, ever dissuaded the claimant from visiting him in Ludhiana on numerous occasions.

Because of all the reasons stated above, the panel is not persuaded that the military did, in fact, seek the claimant nor, for the same reasons, can the panel accord high probative value to the letters submitted by the claimant. Although the claimant suspects that his father's death in May 1989 was caused by the claimant's disappearance, he stated that he is not certain that this is, in fact, the case. The panel notes that the claimant did not flee from the Punjab when he learned of his father's death. In fact, it would appear from his actions that he did not consider himself to be in greater danger as a result of his father's fate. The claimant continued to travel to Ludhiana, meet the secretary of the AISSF, collect his posters and travel back to the town in which he lived during this period to put up the posters.

The claimant's detention in 1986 was brief. The panel is not persuaded that following his release the authorities continued to be interested in him. Nor is there any indication in the testimony that he was unable to continue his political activity.

It is possible that while the claimant lived in the Punjab he, like all the citizens of the Punjab, believed himself to be at risk because of the violence which the documentary evidence above indicates amounts to a state of civil war.

In order for a situation of civil war to amount to persecution "The fear felt (cannot be) the fear that is felt indiscriminately by all citizens as a result of civil war but the one felt by the applicant himself, by a group with which he is associated or... by all citizens because of a risk of persecution based on one of the grounds in the definition,..." [Salibian v. M.E.I., (F.C.A., A-479-89), Decary, Hugessen, MacGuigan, May 24, 1990].

In the present case the panel finds that the claimant's fear results from the civil war and the state of lawlessness prevalent in the Punjab and not "because of a risk of persecution based on one of the grounds in the definition". It is not, therefore, a fear of persecution within the meaning of the definition. Thus the evidence has not established that the claimant's fear of persecution by reason of his religion and nationality is well founded.

As a result of our finding with respect to the claimant's fear of arrest by Indian authorities the panel sees no reason why the claimant needed to hide while he resided in Delhi for a year prior to his departure from India. He had testified that he continued his AISSF activities in Delhi and experienced no difficulties as a result, even though that organization had been banned in 1984 as indicated by the claimant or in 1986 as indicated in the documentary evidence. The claimant testified that Sikhs living in Delhi are not subjected to any difficulties by the authorities. There is no indication in the evidence before the panel that the Sikhs living in Delhi are persecuted by reason of their religion or political opinion.

The panel is, thus, of the opinion that the claimant "could have sought refuge in another part of the same country" and that it would not have been unreasonable for him to do so under all the circumstances (Adjei, see citation above]. India is a democracy with a multi-party political structure. Free elections are held regularly at national and state levels [Exhibit R-4, "Country Reports on Human Rights Practices for 1990", United States Department of State, Washington, February 1991, p. 1425] and Indians are free to change their government by democratic means. Free speech and expression are protected by the Constitution and remain unfettered. The United States Department of State report states that the Indian press "vigorously reflects a variety of public, social, and economic beliefs. Several major national publications regularly publish investigative reports and allegations of government wrongdoing, and the press as a whole champions human rights causes and criticizes perceived government lapses" [Ibid, p. 1434]. The report indicates that "India is a secular state in which all faiths enjoy freedom of worship. Government policy does not favour any religious group" [Ibid, p. 1436]. The report describes India as a "functioning democracy with strong and legally sanctioned safeguards for individuals, a vigorous free press, an independent judiciary and active civil liberties organizations" [Ibid, p. 1425]. There are human rights abuses as indicated in the documentary evidence, particularly in states such as the Punjab where ethnic tensions result in violence and repression by the authorities.

Counsel referred to documentary evidence which indicates that Indians who seek refugee status while outside of India may face difficulties upon their return. In this regard the panel notes that the Refugee Division hearing into this claim was held in camera. The United States Department of State report quoted above indicates that "Indian citizens enjoy full freedom of movement within the country... Foreign travel and emigration are without political restrictions. Millions of people of Indian origin live abroad" [Ibid, p. 1436]. The panel, thus, does not find that the claimant's fear in this regard is well-founded.

After careful examination of all the evidence presented at the hearing and because of the reasons stated above the panel is not persuaded that there exists a serious possibility that the claimant would be persecuted by reason of any of the grounds set out in the Convention refugee definition should he return to India.

The Refugee Division, therefore, determines the claimant, xxxxxxxxxxxxxxxx, not to be a Convention refugee

DATED at Toronto this 28th day of June 1991.

"Jeanette Goldman" Concurred in by: "Alida Leistra" End of document.