The Rise of Refugee Claims from Modi's India

The following is a transcript of a lengthy interview on September 25, 2023, much of which was for context, some of which utilized for a CBC National story on the dramatic rise in refugee claims from India coinciding with the rise of Modi and the BJP.

Interviewer:	Thanks so much for taking the time to do this interview. Just to start, I was wondering if you could introduce yourself and your background. …
Raj Sharma:	My name is Raj Sharma. I'm an immigration lawyer based out of Calgary. Many years ago I was a refugee protection officer with the Immigration Refugee Board. Since that time I entered private practice, authored a text on immigration called Inadmissibility and Remedies and I teach immigration law formerly at the University of Calgary Faculty of Law and more recently at Queens University Faculty of Law.
Interviewer:	Excellent. Thank you. And just what is an immigration corrections officer? What is that? Or enforcement officer, what is that?
Raj Sharma:	Well, the Canada Border Services Agency was created after the watershed of September 11, 2001 that had major ramifications for various countries around the world including Canada. We got an act called the Immigration Refugee Protection Act, a massive sort of update as to our immigration legislation. It created an enforcement sort of aspect of immigration or immigration department, from the department known as Citizenship and Immigration Canada. So CBSA, Canada Border Services Agency, is charged with, and has the mandate for, enforcement.
	A removals officer or enforcement officer will have carriage of inadmissibility. If someone is inadmissible to Canada, then there's certain steps that have to take place, and at a certain point there'll be a removal order, and then that removal order will be enforceable, and then an enforcement officer will take steps to make sure that removal order is in fact enforced and that individual is removed from Canada.
Interviewer:	Okay. All right. Thank you for that. So as you know, the general gist of this story is based on this data from 2013, 2014, zero accepted refugee claims just ramping up to 3,400 last year, but in our chat on this, you actually gave me a little bit of the historical background on what are waves of refugees coming from India to Canada. Can you give me that little history lesson again about the broader context of these numbers?
Raj Sharma:	In terms of the broader context, specifically with respect to Indian refugee claims, we'll have to go back about 40 years. About 40 years ago there was a resurgence in the Punjab separatist element, perhaps fueled by or encouraged at the minimum by Pakistan, India's arch rival then and archrival now. And in 1982, Indira Gandhi, the prime minister of India, sought the extradition of an individual named Talwinder Singh Parmar. Talwinder Singh Parmar was said to be a terrorist and a couple of years later was implicated in one of the greatest acts of terror in the modern era, the downing of Air India 182 Kanishka.
	That extradition request was refused by Justin Trudeau's father. So again, history doesn't repeat, but it certainly rhymes or it echoes. After 1982, you had the attack on the Golden Temple by a government led by Indira Gandhi for the apparent reason that there were militants and extremists that were holed up in that temple complex. She did of course attack Sikhism's holiest shrine and many hundreds, if not thousands of innocents were killed then. That resulted in her own assassination by her Sikh bodyguards later that year. Unfortunately, that sparked the rape, looting, destruction, and killing of many thousands of innocent Sikhs in that year and subsequent, Punjab was basically put on lockdown and you had an individual named KPS Gill enforcing, and resulting in many, many cases, deaths at the hands of the police or extrajudicial encounters or killings, including human rights activists such as Jaswant Singh Khalra.
	That led to that first exodus. If we're talking about that first wave, that first wave from the Punjab, that was the background. Once again we are in a very interesting times right now. That resulted in refugee claims being made in Canada. Now back then, refugee claims were not determined by independent adjudicator. They were basically, like I'm talking to you right now, officer would ask questions, that interview would be recorded on something called cassette tapes that a lot of the audience may not know about, and those cassette tapes would be couriered to Ottawa and then a decision would be made. A Sikh man made a claim and took that case to and ended up at the Supreme Court. Supreme Court in Singh indicated that the charter applied to refugee claimants in Canada and if there were issues in terms of credibility, they would have to have an opportunity to respond.
	That mandated hearings. That resulted in the creation of the Immigration Refugee Board by then Prime Minister Brian Mulroney and his government. The Immigration Refugee Board has a couple of divisions in it. For our purposes, the division responsible for refugee adjudication is the Refugee Protection Division where I ended up working some years after. In terms of that first wave, late 1980s to the 1990s, this continued until the situation more or less stabilized in the Punjab. Peace and order, shall we say, was brought back and perhaps at too high of a cost.
	And when I started at the board and subsequent, you saw the normalization, and given the normalization of the situation of Punjab that the hearings dropped off. There were still some cases alleging repression and fear at the hands of state authorities by Sikhs and Punjabis, but that really sort of dropped off. And at a certain point we had a Sikh Prime Minister of India, Manmohan Singh, probably around 2012, 2013, where you have a dearth of acceptance rates. Now a couple of things go on when you deal with refugee claims. The individual has to meet the definition of refugee, which means an individual outside of their country of nationality that has a well-founded fear of persecution arising from one of the convention grounds, race, religion, political opinion being three of the five.
	Now that individual also has to show that there's no state protection and that individual also has to show that there's nowhere else in that country that they can go and be safe. That's called an internal flight alternative. Now India's more like a continent than it is a country and so that's a high bar to pass that if you have a problem in, shall we say Moga in Punjab, that you're going to have that same problem in Mumbai. And so those were those sort of hurdles that an applicant had to overcome to successfully make a claim for protection against India. Now those issues don't really pose a problem when you allege that the state is the agent of persecution.
Interviewer:	All right. 'Cause we're going to come back to what you just explained, but accepted refugee claims based on the data, began to creep up in 2015 and then really picked up speed, right? Like I said, 3,400 last year. And Modi came into power in-
Raj Sharma:	2016.
Interviewer:	Do you see a connection between that new wave and his government?
Raj Sharma:	Of course. Prior to the BJP government you had the Congress, which again, if we go back to history, Jawaharlal Nehru is the first prime minister of India, the father of another prime minister of India, Indira Gandhi, assassinated of course by her Sikh bodyguards, the grandfather of another prime minister of India, Rajiv Gandhi, also assassinated but by Tamil Sri Lankan terrorists, who incidentally invented or adopted suicide bombing as a strategy. The vision of India in terms of the Congress party was a vision of a secular India. That is not the vision of the BJP and the Narendra Modi government, they see India as Hindustan and they view the Hindu identity of India as being primal and primary and central. And so that is what you see. There was an unraveling of many of the accommodations, shall we say, instituted by previous Congress governments.
	The BJP and the Narendra Modi, for example, took action on the special status for Jammu and Kashmir, which is largely Muslim and perhaps a topic for another day. You also had the Citizenship Amendment Act. You also had other concerns as well. But their vision of India is at odds with how India viewed and presented itself for decades prior. The rise in refugee claims after the BJP government, and of course most recently when they achieved a majority government, and it looks like they're going to get another majority probably early next year. This is part and parcel …one cannot, but correlation is not causation. But in this case you certainly have the causation because you do have repression of minority rights and you do have a very, very aggressive central government under the Modi government that espouses a far more muscular view, an aggressive view of the Hindu majority.
Interviewer:	Just following that thread, what kind of stories are you hearing from people who walk through the doors of your firm? Why are people seeking protection in Canada? What stories are driving them here?
Raj Sharma:	Well, again, it depends on the country I suppose, but every country has a-
Interviewer:	Specifically from India,
Raj Sharma:	If we're talking about specifically from India, a lot of it is arising from their status as minorities or again, something that we didn't quite see in the past, but we're seeing more now, the increase in terms of religious intolerance. We've had individuals, we've had Hindu women and Sikh women that have come to Canada as students. They've been in relationships with Muslims and Arabs and converting to Islam. They fear return scenario because they feel A, that they would be persecuted by their family and society at large, and B, that the state this now Hindutva fueled government, that state agencies would not protect them or would not be effective in protecting them. So that's one. For example, claim profile, a lot of the claim profiles may very well be, and again, let's be clear whether it's Erdogan's Turkey, Pakistan or India, you do have the journalists in jail, you have the crushing of dissent.
	You could very well have a political opinion that may give rise to a well-founded fear of persecution. In terms of minorities, you may very well meet the definition of refugee protection if you are a Sikh, if intending to vote and support, this organization Sikhs for Justice, which was banned by the Modi government in 2019, that referendum, those votes are taking place outside of India. And you could meet that definition because the state or India can use what some individuals call draconian or repressive laws such as the Unlawful Activities Prevention Act or UAPA to silence dissent and to punish those that are simply freedom of expression and seeking a separate state.
Interviewer:	I just want to jump back. We were talking about religion, religious minority. So you're saying which religions are facing persecution in India right now that weren't before to this extent?
Raj Sharma:	Well, there are widespread issues in the northeast of India right now with the Christian minority. There are issues, obviously we've seen that, and whether that's the farmer's protest that started in 2019, 2020 and went on for more than a year, that involved the Sikhs. And obviously we have these issues. India is hypersensitive with respect to division and separatist sentiments. We have those concerns faced by the Muslim population, albeit the Muslim population in India is 200 million plus, which is more than any other Muslim country other than Indonesia.
Interviewer:	What about the domestic violence? I've read some successful decisions either on appeal or, and a handful that I've seen just from the IRB recently from 2020 on domestic violence that people have, women have been able to get refugee status based on domestic violence. Are you aware of that or what does that say about the state of protection for women in domestic violence situations?
Raj Sharma:	Well, if there's a claim profile from India, I assure you that we've done it. Remember one thing, Jorge, the issue is survivorship bias. You're only going to see the cases that are successful, you're only going to see those cases where it's been reversed on appeal or it's gotten success at the federal court. You're really not going to see the refused cases on that same ground. And again, domestic violence, you might see those cases, but you're not seeing the other side. Again, the domestic violence, you'd really have to take a look at efforts to access state protection.
	But yes, the issue of this is Delhi is one of the most dangerous places in the world for women. It is the rape capital of the world. So if a woman can raise an issue or persecution or risk life arising from her gender, she does have a good claim, she's got to be credible, and she's got to sort of establish her case, but the internal flight alternative is probably where she would succeed. It's not easy, as you might imagine, to tell a single woman in India perhaps with no family support to just go to a different city and start her life afresh. So there is a scope for success in those types of claims because of a lack of a reasonable or safe internal flight alternative, particularly for women.
Interviewer:	Okay. Now, the successful refugee claimants that are facing persecution India for various reasons like political, religious, what about when they leave India? Is that persecution following them here?
Raj Sharma:	I don't understand.
Interviewer:	You have some people leaving India and getting refugee status here in Canada, but does that persecution in India, can that follow them to Canada? Can they still be persecuted? Can they still face persecution from Indian power Indian authorities even when they go to a different country like Canada?
Raj Sharma:	Yeah, so we've seen that. We've seen the partners of these stalkers or these partners or these aggrieved partners sometimes follow them to Canada. I mean that usually the difference there is that they're usually able to access a state protection here. They're able to obtain police protection, call the police, or obtain an emergency protection order, or colloquially known as restraining orders here. So that has happened and that does happen.
Interviewer:	What about organized persecution like political persecution from Indian authorities or following people here and continuing that persecution are trying to pressure those who fled?
Raj Sharma:	Well, that's the million-dollar question. Various communities have indicated their concerns of being monitored, of being harassed, of being subject to surveillance. This includes Saudi nationals, this includes Ethiopians, [inaudible 00:22:46], Venezuelans, you name it. There's any number of countries that monitor their diaspora communities in a number of countries, including Canada. And that's occurred, that is occurring, that will occur. In the past, the diaspora... These communities wield a lot of power. They're able to mobilize social media and other attention. They're able to provide funds and fundraising and support various causes. So that's always been with us in terms of the politics that individuals engage in or these issues follow them. It's not like there's a clean break. These issues follow the diaspora to the country of their new domicile, whether it's the UK, whether it's Canada, whether it's the US, whether it's Australia. A lot of this is not in the open.
	A lot of this is not quite cloak and dagger, but it's certainly not well publicized individuals for various reasons of their own may not want to draw attention to this fact either. But we've seen it with the Bangladeshi diaspora because we've got this sort of back and forth, whether it's the BNP in power, then the Awami League in power, when the BNP's in power, they're going to harass and persecute their opponents. When the Awami League gets in power, they're going to harass and persecute the BNP. That's always been the case.
	And again, if we were to go back into the 1980s, with respect to the Punjabi community and the Sikh community, the Khalistan or the extremist elements in Canada, obviously not only did they bring down the Air India 182 Kanishka plane, but there's [Tara Singh] Hayer. The publisher in the Canadian newspaper in Surrey was shot once rendered a paraplegic and then shot again years later ending his life. And so, those issues have followed, and whether that itself is not necessarily the state, but those issues, it obviously doesn't just stop when individuals immigrate to another country. Particularly if they continue their activism and exercise their freedom of speech, which of course is guaranteed in Canada subject to some few limitations.
Interviewer:	So just continue on this theme in the broader theme, but there is a New York Times story that came out over the weekend or maybe even Friday about the FBI warning Sikh communities in the States verified.
Raj Sharma:	Not verified by the FBI but allegations made by those allegedly warned by the FBI, correct.
Interviewer:	Yeah, yeah. And US authorities anyways. So this whole notion that the Indian government is engaging in foreign assassinations and foreign [inaudible 00:26:10], is there a theme that sort of connects this pretty large shift in increase in refugee claims in Canada and now we're seeing these allegations of Indian authorities executing individuals on foreign soil?
Raj Sharma:	Well, I guess what I would say is that you have the rise of India, which is also coincided with the rise of the BJP and Narendra Modi. You had Narendra Modi accused essentially of being complicit in these riots that resulted in perhaps a thousand or more Muslims dying in Gujarat. Now, he was cleared by the Supreme Court of India perhaps a decade afterwards, but he himself was having difficulty getting visas to come to Canada and the US. Now, if I were to give you another theme, I would say that the United States opened this Pandora's box where they legitimated the assassination of terrorists on foreign countries in other countries. Now that includes Osama Bin Lain in Abbotabad Pakistan that includes their own citizen Awlaki in Yemen, and I believe his teenage son, and I'm sure innumerable individuals in terms of the war on terror, one of those repercussions from September 11th, 2001. So that's the United States. That is no moral paragon here.
	You then have of course the very, very publicized assassinations taken by Russia. You have individuals that have been killed in the United Kingdom with various James Bond level accoutrement like Polonium for example. You have Kim Jong Un, this rogue nation killing his brother or half brother, I believe in Malaysia. You have the most recent example is Saudi Arabia butchering Jamal Khashoggi in the Saudi embassy in Istanbul. If there's a theme, I suppose this is now something that has been done by democratic governments and autocratic governments.
Interviewer:	But the fact that this is being done under a government, that's also seeing an increasing exodus of people for over repression. Right? One of the, is there a connection between the domestic situation that leads people to leave India by increasing numbers to Canada, for example. And then now these allegations that India is actually doing stuff that Saudi Arabia has done, that Russia has done, that the Americans have done on foreign soil, all happening around the same, under the same administration.
Raj Sharma:	What I would say … is this, is that there's various push-pull factors that influence individuals to leave their country of origin and settle abroad. You have a massive increase in the number of Indian nationals that are coming to Canada over the last 10 years. And with that massive increase plus this aggressive Hindu oriented government in India, you are going to see an uptick in refugee claims. And concurrently you're going to see an increase in the acceptance rates of such claims because there is a basis in fact, or a basis or an objective basis for their concerns in a return scenario.
Interviewer:	Okay. You generally know where I've been going with this and what this story's about, about the rise of the claims, but any additional thoughts you want to give or maybe raise an issue that none of my questions have raised that you think is important to keep in mind thinking about this?
Raj Sharma:	Well, I guess the only thing, I can say is that actions have consequences. The BJP has been indicated for some time and has been calling for something called a Hindutva, and that basically means a Hindu nation. And that statement is going to be of great concern to the 200 million Muslims that are there that have remained there, that this is their ancestral home as well. That's going to be of deep concern to the Sikhs of the Punjab that fought for independence from the British. And it's deeply disconcerting to these two minority groups in particular. And you have to view this in context of the traumatic intergenerational trauma that Sikhs have experienced since 1984. And these things are inextricably linked to one another….