M. (V. K. ) (Re) Convention Refugee Determination Decisions

M. (V. K. ) (Re)
Convention Refugee Determination Decisions
[1991] C.R.D.D. No. 150

No. T90-04422

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

Panel: E.W.A. Townshend and L.D. Neville In camera

Heard: January 2, 1991

Decision: May 28, 1991

Appearances:

Harry Mann, for the claimant(s).

Dennis Johnston, Refugee Hearing Officer.

REASONS FOR DECISION

These are the reasons for the decision with respect to the Convention refugee claim made by xxxxxxxxxxxxxxx which was held pursuant to 69.1 of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 18] on January 2, 1991 at Toronto, Ontario.

The claimant was represented by Harry Mann. The panel was assisted by Dennis Johnston, a Refugee Hearing Officer (RHO). An interpreter proficient in the Punjabi and English languages was present throughout the hearing.

The evidence adduced at the bearing consisted of the oral testimony of the claimant and documentary evidence submitted by counsel for the claimant and by the Refugee Hearing Officer. The Refugee Hearing Officer advised counsel on January 2, 1991, that the Refugee Division would use the Standardized Country Files (SCF) with respect to India, and attached the index of said SCF.

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], which 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 following is a summary of the claimant's testimony. He s a citizen of India and a Sikh by religion. He was born on xxxxxxx, 1960 in Raikot, in the Ludhiana district of Punjab state. After graduating with a B. A. from G.H.G. Khalsa College in 1981 he worked at his family repair shop.

He was an active member of the Akali Party which he stated was the main Sikh political party and he described as a registered party dedicated to democratic principles. He was involved in attending meetings, recruiting new members door to door and peacefully working for the party.

On March 15, 1982, the claimant had his first brush with government authorities. He was arrested with two other members while they were going door to door telling people about the government's wrongdoings and taken to the police station. There he was beaten, had his clothes torn and released later that day with a warning to "stop inciting the people against the government". He stated that he was very insulted and embarrassed to be seen in such a partially-attired state.

Despite the warning, the claimant continued his activities with the Akali Party. On the morning of April 22, 1984, he was arrested for a second time, along with seven others as they were setting up a stage in the city market place. He stated that they were not allowed to do this. He was taken back to the same police station as before, was beaten, stripped of his clothing and forced to parade naked in an open space in full view of many people. Later that evening he was released with a warning to stop his Party activity. He was forced to make his way home unclothed. He felt very insulted. On neither occasion was he formally charged or brought before a magistrate. He stated that the police were under government direction and harassed people opposed to the government.

The claimant continued working for the Party as he knew he was "fighting for a just cause". He personally did not have any further trouble with the police but stated that after the June 5, 1984 attack on the Golden Temple, many people were jailed and arrested under National Securities Act (N.S.A.) [India Standardized Country Files, Immigration and Refugee Board, Toronto, May 1990, Tab 11, (Country Reports on Human Rights Practices for 1989, p. 1388)] and held without any allegations against them.

On February 13, 1985, the claimant's shop was "invaded" by the police while he was at a friend's home. As a result, he avoided arrest and fled to his sister's home in Amritsar. He had heard that two of his friends (members) had been arrested two days earlier. His brother told him that the police were looking for active members and had returned several times to look for him. He stated that his brother and father were taken to the police station and beaten. The claimant then fled to his uncle's house in Bhatinda. He heard from his parents that a neighbour (a Party member) was taken by police at night and killed in a police encounter. The claimant was upset that the ashes and not the body were returned to the family and that a roper death ceremony could not be held.

The claimant left India on July 19, 1985 and arrived in Holland to claim Convention refugee status. His claim was denied and he left for Canada on December 12, 1985. He arrived in Montreal, Quebec on December 14, 1985 and stated his intention to make a refugee claim.

The claimant bases his claim on a well-founded fear of persecution for the reasons of race, religion, political opinion and membership in a particular social group.

When asked about the possibility of his living in another part of India, the claimant stated that there was no safe place for Sikhs anywhere in India.

He testified that since coming to Canada, he has heard of Party members being killed in false police encounters, as well as others who have disappeared. He fears this will happen to him.

There was no evidence led to the specific ground of membership in a particular social group but from the evidence in our opinion, his well-founded fear for this reason overlaps with his well-founded fear of persecution for reasons of his political opinion.

The panel accepts the claimant's testimony as credible and does not doubt that, as a political activist, it is possible that if he returned to the Punjab now, he might be caught up in the crossfire between militant Sikhs and Indian law enforcement authorities. The documentary evidence indicates that there is a continuing communal strife in the Punjab. An Inter Press service article [Exhibit R-1] dated December 8, 1990 gives a graphic summary of conditions there:

In India's embattled northwestern state of Punjab there are two governments and two sets of laws and its frightened people are damned if they do or they don't.

Violating religious and social diktat issued by groups of Sikh militants can result in death and resistance to the Indian government's security measures is torturous...

However, the article also notes that "thousands of Punjabis have migrated from villages to towns and from urban Punjab into neighbouring states…".

India is made up of 25 states and seven union territories so the opportunity for internal flight to any of the other states in India is available to the claimant. It is not unreasonable to expect him to avail himself of that opportunity.

The document entitled, "Sikhs, The Minority Rights Group Report No. 65 [Exhibit R-1, India Standardized Country Files, Immigration and Refugee Board, Toronto, Tab 12 (The Sikhs Minority Rights Group, Report No. 65 p. 12).] notes in its conclusion on page 12:

"Many Sikhs live in other parts of India, and play an important part in its national life…".

While there is communal violence in some parts of India, there is no indication from the documentary evidence that there is a reasonable chance that the claimant would face persecution elsewhere in India because he is a Sikh or holds certain political opinions or for any of the other reasons in the definition of Convention refugee in the Immigration Act, if he returns to India.

In conclusion, therefore, the panel determines that the claimant xxxxxxxxxxxxxxx does not have a well-founded fear of persecution for any one of the reasons set out in the definition of Convention refugee in the Immigration Act, if he returns to India. We, therefore, determine xxxxxxxxxxxxxx not to be a Convention refugee.

DATED at Toronto, this 28th day of May, 1991.

"Louise D. Neville"

CONCURRED IN BY: "E.W.A. Townshend"

End of document.