B. (J.C.) (Re) Convention Refugee Determination Decisions

B. (J.C.) (Re)
Convention Refugee Determination Decisions [1991] C.R.D.D. No. 233
No. U90-01383

Immigration and Refugee Board of Canada

Convention Refugee Determination Division

Toronto, Ontario

Panel: F. Kapasi and N. Daya In camera

Heard: March 1, 1991

Decision: June 13, 1991

Appearances:

Allan Cooper, for the claimant(s).

Christopher Duggan, Refugee Hearing Officer.

REASONS FOR DECISION

This is the decision of the Refugee Division regarding the claim for Convention refugee status of xxxxxxxxxxxxx, a twenty-four year old citizen of India. The hearing into his claim was held pursuant to section 69.1 of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 18] at Toronto, Ontario on March 1, 1991. The claimant was represented by Allen Cooper, Barrister and Solicitor and testified with the aid of an interpreter proficient in Punjabi and English languages. The panel was assisted by Christopher Dugan, a Refugee Hearing Officer.

Subsection 2(1) of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 18, defines Convention refugee 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, 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...

Documentary evidence relating to the conditions prevailing in India was submitted by both counsel for the claimant and the Refugee Hearing Officer. The Refugee Hearing Officer advised counsel that the Refugee Division would use the Standardized Country Files [Exhibit R-1, Index to Standardized Country Files India, Immigration and Refugee Board, Toronto, May 1990] (SCF) with respect to India and provided the index to that file.

The claimant based his claim on his religion, political opinion and membership in a particular social group.

The claimant provided the following testimony.

He is a Sikh by religion. He lived in the village of Gurkha, in the district of Jalandhar in Punjab, India. He is a farmer by profession and worked on the family farm. He has a wife and son in the Punjab.

In the beginning of 1988, he joined the All India Sikh

Student Federation (AISSF). He joined this organization because he believed he could help ease the oppression of Sikhs in India. He stated that AISSF was an international organization with branches within India and outside of India. His local AISSF organization comprised of 100 members and a leader. However, the leader of his local organization had left the village 2 months after the claimant joined the organization. Leaders from other villages helped to run their local meetings. To join the AISSF, the claimant paid a membership fee of 5 rupees and took an oath of secrecy. The oath was never to divulge the names of fellow members to the police so as to prevent their possible arrest.

In his local AISSF, the claimant was just an ordinary member who attended meetings and acted as a driver for the organization when there were meetings in other villages. He would transport 4 or 5 fellow members in his jeep to these meetings. He drove his colleagues approximately 5 times to different meetings. The meetings were held at a Sikh temple and were incorporated as part of religious and social gatherings of all Sikhs. The claimant called these "fairs". At these meetings, funds were collected by the AISSF. Contributions were voluntary.

The aim of the organization was to secure the release of Sikhs who were arrested by the police and to obtain an independent Sikh state. The leaders and senior members of the ISSF carried weapons to defend themselves against the police and for their own safety. If and when police came, the leaders would fire their weapons to warn the police that they were armed. Ordinary members such as the claimant did not carry weapons or indulge in violent confrontations with the police. But if police came to arrest Sikhs, AISSF members would use arms against the police. During cross-fires, at times people were killed on both sides. The claimant stated that members of the AISSF have been involved in terrorist activities against high government officials and government installations.

The claimant attended many meetings of his organization from 1988 until his arrest in March 1989, after which he only attended one local meeting. On one occasion, prior to his arrest in March 1989, he attended a large meeting in the City of Amartsar where there was a discussion about Sikhs who had to flee their homes and whose families, as a result, were harassed by the police. At this meeting, AISSF leaders informed all the members to retaliate against the police if such instances occurred.

The claimant participated in a Sikh demonstration on March 3, 1989. At this demonstration, there were clashes between the police and the demonstrators. The police arrested many Sikhs. The claimant was not arrested. However, uniformed Punjab police came to his home on March xx, 1989 at 4:00 p.m. and 5 police officers arrested him in front of his entire family. His house was surrounded. The claimant was escorted in an enclosed jeep to Gurayah prison. He was not given the reason for his arrest. While in prison, he was informed that his arrest was because of his membership in the AISSF.

He was kept in solitary confinement. He was interrogated and beaten. He was detained for one month. Ultimately, through negotiations with the police by the head of his village council, the claimant was released on April xx, 1989. One hour before his release, the police inspector at the Gurayah prison warned him not to participate in the AISSF or else he would be killed.

The claimant stopped going to the meetings of his organization. The Punjab police checked up on him by visiting his home. Twice, he was detained by them for a short period of time and released again. Members of local AISSF inquired as to why he was not attending their meetings, and whether he was afraid of the police. The claimant's answer was that he was too busy with his work or that he was sick. However, he continued donating money and retained his membership. Once, prior to his second arrest by the Punjab police, to avoid suspicion of being an informer by the members of the local AISSF, he did attend a local meeting. He does not remember the date.

On October xx, 1989, the police arrested him again at his home. He was detained in the Gurayah prison, interrogated and beaten. He was kept for a month and subsequently released through negotiations carried out by members of the village council. The conditions of release were that the claimant was to report to the police station whenever required to do so. The police, again, warned him not to get involved with the activities of AISSF. While in jail, his wife was also threatened and his family members were harassed by the police.

The claimant was in prison and upon his release, he required hospitalization for 2 weeks. After release from the hospital on November 15, 1989, he rested at home for 2 weeks.

At the end of November 1989, he left his village and travelled to Calcutta by train with a view to leaving India permanently. The journey to Calcutta took 2 days. In Calcutta, an agent helped him to obtain a false passport. The agent asked him to have a passport picture taken and had the claimant accompany him to procure the passport and the ticket. The agent charged him 20,000 rupees for this service. The claimant's father helped him with the payment. On December 9, 1989, at 2:00 p.m., he left Calcutta for Bangkok en route to Canada where he claimed convention refugee status.

The claimant testified that many local members of his AISSF had either gone into hiding or left the country. However, many remained in his village.

After his arrival in Canada, his father forwarded a warrant [Exhibit C-2, Item 2, Warrant to appear before the Court at Phillays issued by the Judicial Magistrate, District of Jalanfhar, March xx, 1989] to appear at court and also an undated letter [Exhibit C-2, Item 3] from the head of the Village Council. The panel had the opportunity to look at the originals. The claimant was questioned about the date, March xx, 1989, at the top right hand side of the warrant [Ibid], as it differed from the date, February xx, 1990, at the bottom of the letter [Ibid]. The claimant was not able to offer adequate explanation for this discrepancy. The claimant's first arrest was on March xx, 1989, the date of issue on the top right hand side of the warrant to appear [Exhibit C-2, Item 2, Warrant to appear before the Court at Phillaur Issued by the Judicial Magistrate, District of Jalandhar, March xx, 1989] is March xx, 1989 which is the date before his actual arrest. Again, the claimant was not able to offer an explanation about this discrepancy.

The claimant fears that if he is returned to India, he will be arrested and shot by the Punjab police for his involvement with the AISSF. He had also failed to appear before the court as required.

When asked why he could not have moved to some other area in India, the claimant testified that he is wanted by the police nationally and his photographs are posted everywhere in India. He would be arrested right at the airport in Delhi if he returned to India and perhaps even shot on sight.

In determining whether the claimant is a Convention refugee, the panel has considered and assessed all the relevant evidence presented during the hearing.

The panel finds no evidence to support that the claimant was persecuted in India for following the Sikh religion. The claimant's testimony has revealed that the AISSF meetings took place at the Sikh temple during religious and social festivals which he called "fairs". There is ample documented evidence [Exhibit R-1, SCF: Tab 3, India Encyclopedia of the Third. World, 3rd Edition, Volume II, pp. 864-905, Exhibit R-1, SCF: Tab 5, India, 1990 Britannica Book of the Year, pp. 448-450 and 635-636] which indicates that the Indian State is a secular one and Sikhs have full freedom of religion under the Indian Constitution and this is respected in practice.

Furthermore, the panel finds no evidence that the claimant has a well-founded fear of persecution because of his membership in a particular social group, namely young male Sikhs. There is no documentary evidence to support persecution on this ground.

The panel had an opportunity to observe the claimant while giving oral testimony and it noted a certain amount of evasiveness as he answered questions pertaining to the warrant to appear [Ibid] and the letter from the village Connell [Ibid] put to him. The warrant to appear indicated that the charge was under the Arms Act. When the claimant was asked if he understood what this warrant meant, his answer was he did not understand English well and that the person who translated it did not have any legal knowledge. There are also other inconsistencies on the warrant. The issue date on the top right hand side of the warrant is March xx, 1989. The date at the bottom of the warrant is February xx, 1990. However, on March xx, 1989, the claimant was still in the Punjab. In fact, he left the Punjab only at the end of November 1989. According to his testimony, he had twice been arrested by the Punjab police during the period on March xx, 1989 and on October xx, 1989. The date to appear before the court appears to be April xx, 1990, though it looks like it may have been changed from 1989. When the claimant was asked to explain this, he stated he did not know why it was so. Neither did he offer any explanations regarding the warrant or the Arms Act. His counsel insisted the court date was April xx, 1990. It was clear from looking at the original of the warrant [Ibid] that the date has been tampered with. Further, the date under the seal of the Judicial Magistrate on the warrant to appear is February xx, 1990. The panel questions the plausibility of this date when the issue date of the warrant is March xx, 1989. In light of these inconsistencies, the board gives the warrant to appear no weight at all.

The claimant testified that he did not experience difficulties leaving his village for Calcutta. Neither did he experience any problems from the authorities during his 2 week stay in Calcutta to make arrangements for his departure to Canada. He was able to depart from Calcutta Airport with an alleged false passport which had his photograph and name on it. The documentary evidence [Exhibit R-1, Tab 1, India Country Profile IRBDC, April 1990, pp 1-105], gives information on airport security and treatment of young Sikhs in India. The Indian Airport Security with respect to young male Sikhs is very tight. The claimant has alleged that he is wanted nationally by the Indian police and that his photograph is posted everywhere in India. If he returned to India, he believes he would be arrested and shot. Yet the claimant, a young Sikh male, nationally wanted, was able to leave Calcutta International airport without encountering any difficulties from the airport security or from the Indian police. The panel finds this implausible.

If the panel were to accept that the claimant's treatment by the Punjab police amounted to persecution, the panel believes the claimant had an alternate local flight option.

The United Nations Handbook on Procedures and Criteria for determining Refugee Status at paragraph 91 [Office of the United Nations High Commissioner for Refugees, Geneva, January 1988], provides the following guidance.

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 specific ethnic or national groups may occur in only one par t of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refugee status in another part of the same country. If under all circumstances it would not have been reasonable to expect him to do so. (emphasis added)

The claimant's testimony revealed that many members of the AISSF were still living openly in India. In fact, he stated that some local members of the AISSF still remained in his home village of Jalandhar in the Punjab. He also stated that AISSF was an International organization with membership spread within India and outside of India. The documentary evidence, points out that about 2% of Indian Sikhs live outside the Punjab and makes no mention of their experiencing any difficulties. Indeed, the attachment to the Documentation Centre Response to Information Request Number 3195 [Exhibit R-1, SCF: India, Tab 2, Information Package, IRB Documentation Centre, January 1989], after addressing the situation in Punjab states:

Elsewhere in India, there is no striking Sikh-Hindu violence. Both groups live and work together in peace.

Furthermore, even if the panel were to accept the claimant's testimony with respect to his experiences in India, the panel believes that Article 1F(b) of the Convention would apply to the claimant.

("Convention Refugee") does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the Schedule to this Act.

F.The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

b.he has committed a serious non-political crime outside the country of refugee prior to his admission to that country as a refugee.

The claimant is a member of the AISSF, which is a Sikh organization involved in politically motivated crimes against the government of India. The AISSF, according to the claimant's own testimony has been involved in terrorist activities against government installations such as bombings and also in the killings of high officials of the government. Leaders and senior members of the AISSF carry arms and the claimant testified that violent confrontations between the members of his organization and police do take place and people get killed on either side.

The AISSF is internationally known for its terrorist activities. Kessing's Revolutionary and Dissident Movements [Exhibit R-1, SCF: India, Tab 6, p. 156-157] confirms this fact.

The claimant has alleged that he is just an ordinary member and has never carried arms. Yet the warrant to appear before the court indicates that he is charged under the "Arms Act". Furthermore, the claimant has alleged that he is nationally wanted by the police and that his photographs are posted all over India.

The claimant remained a member of the AISSF from the beginning of 1988 until the end of November 1989. During this period, he attended many meetings and donated money. He did not make an attempt to leave the organization despite the police warnings and threats. He was afraid of being suspected of being an informer by the AISSF. Nevertheless, he did not co-operate with the Punjab police in divulging information about the AISSF.

In the panel's opinion, Article 1F(b) of the Convention applies to the claimant. Guy Goodwin Gill [The Refugee In International Law, (Oxford: Clarendon press, 1983), p. 61], points out that terrorist acts have been condemned in a number of international conventions. Therefore, although the activities of the AISSF are politically motivated, they are nonetheless, in essence, because of their atrocious or barbarous nature, serious non-political offences.

For all of the above reasons, the panel is persuaded that the claimant is not a person described in the Convention refugee definition.

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

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

"Fatima Kapasi"

Concurred in by: "Nazlin Daya"

End of document.