Citation: 2020 RLLR 43
Tribunal: Refugee Protection Division
Date of Decision: October 30, 2020
Panel: C. Peterdy
Counsel for the Claimant(s): Ian Wong
Country: Sri Lanka
RPD Number: TB9-09362
ATIP Number: A-2021-00655
ATIP Pages: 000093-000099
DECISION
[1] MEMBER: This is the decision in the claim for refugee protection of [XXX]. The file number is TB0-09362. I have considered your oral testimony and the other evidence in this case and I’m ready to render my decision orally.
[2] (Indiscernible) claiming to be a citizen of Sri Lanka and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[3] I find that you are a convention refugee on the grounds of your ethnicity, religion, and an imputed political opinion for the following reasons:
[4] Your allegations are made out in your Basis of Claim Form which is found at Exhibit 2. In summary, you allege that you are a citizen of Sri Lanka and that you fear harm at the hands of the Sri Lankan government, army, police, and security forces, as well as ballistic extremist as a Tamil-speaking Muslim.
[5] You allege that you and your family historically faced discrimination and harassment as Muslims. You allege that after the Candy Riots of [XXX] 2018, you and your employee were attacked by Sinhalese men and called racial slurs. Sinhalese people also boycotted your business.
[6] You further allege that land you had purchased in 2012 was supposedly taken by the military in 2013. You reached out to government officials and even held a demonstration in 2018 to have the land returned.
[7] A lawsuit was filed against the army in 2017 by the man from whom you purchased the land. As a result of your efforts, you faced harassment and threats. In [XXX] 2019, you were detained by the Terrorist Investigation Department, or TID, for one day where you were questioned about your work, your trips abroad and who funded these trips. The TID alleged they had information about your anti-government and anti-Buddhist activities and accused you of turning innocent people against the government. You were beaten by the TID and released with a strict warning not to engage in anti-government activities.
[8] The man who sold you the land and who had purchased — sorry — who had sold you the land and who had launched the court case against the Military received threatening phone calls and went missing in [XXX] 2019. You also received threatening phone calls in [XXX] 2019. It was then that you determined it was no longer safe for you to remain in Sri Lanka and you fled to Canada.
[9] Since fleeing, the army has returned to your home and gone to your Mosque and your wife’s workplace to inquire about your whereabouts. Your wife was informed that on return to Sri Lanka you are to present yourself to the Ampara Police Station concerning an investigation into your anti-government activities and a discovery of explosives on your land.
[10] Your identity as National of Sri Lanka has been established on a balance of probabilities by your testimony and the identification documents found in Exhibit 1 and 6, including your passport and National ID card.
[11] In terms of your general credibility, I have found you to be a credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim Form. Your testimony was straightforward and consistent with your Basis of Claim Form. You did not embellish your testimony and there were no significant omissions or inconsistencies. Your testimony was spontaneous and included the detail one would expect from someone telling their own story.
[12] You also provided several documents to corroborate your claim and the risks alleged. These include documents corroborating your work and involvement in the business community. At Exhibit 6, you have your business registration, Ampara District Chamber of Commerce and Industry ID, as well as certificates of membership from 2016 and 2018, Certificate of Membership from the International Association of Lions Club. You’ve provided documents confirming the land you purchased in Exhibit 6 and 8. There’s the land permit showing the grant of four acres to [XXX] (ph) as well as his affidavit confirming transfer of this land to you after receipt of [XXX], and a copy of the selling agreement and a request to have the land permit transferred to your name.
[13] You provided the court order from [XXX] 2017 corroborating your allegation that a case was filed by [XXX] and dismissed by the court in (indiscernible) because the land falls under the Ampara Court’s jurisdiction.
[14] There’s a letter from the lawyer who represented you and confirms that you and [XXX] approached him for help. He states that the re-opening of the case in Ampara had to be suspended because [XXX] went missing and you were being harassed and ultimately fled to Canada.
[15] There’s a letter from your Mosque, your wife, your father, a friend, and an employee who are aware of what has happened to you in Sri Lanka. [XXX] (ph) (indiscernible) states that the TID has visited the Mosque asking about you. Your wife states that since you fled, the TID has gone to your home in [XXX] 2019 and twice in [XXX] 2019 after the Easter bombings to ask about you and to search the home. [XXX] (ph) confirms that he was with you in [XXX] 2018 when you were attacked by Sinhalese men and called a racial slur.
[16] Based on your testimony as well as the documents provided to corroborate your claim, I find on a balance of probabilities that you have established that you were harassed and targeted because you were a Muslim. I further find that you have established on a balance of probabilities that you purchased land that was forcibly taken by the military and that after trying various avenues of recourse to have the land returned to you, you were arrested, detained, and questioned by the TID.
[17] I accept that the TID believes that you are opposed to the Government and have engaged in in anti-Sinhalese and anti-Buddhist activities and as a result, you face a serious possibility of persecution in Sri Lanka. Furthermore, I find that you have established subjective fear of harm.
[18] The objective evidence in both the National Documentation Package found in Exhibit 3 and counsel’s Country Conditions Package found at Exhibit 7, further corroborates what you allege and the risk you face as a Muslim in Sri Lanka.
[19] With respect to the land issue, Item 10.4 of the National Documentation Package is particularly instructive. It’s a Human Rights Watch Report on Land Occupation from October 2018. That corroborates the issue you had with your land being taken by the military as well as the challenges in having the land returned.
[20] Security forces have occupied new land even after the end of the war to expand their role and presence in civilian activities including infrastructure development, tourism and administration. It contains examples of military going into villages, forcibly taking land and erecting military camps in the East and in Ampara, which is the district where you lived.
[21] The report raises concerns that “the Sinhalese-dominated state is seeking to diminish the rights of minorities through continued militarization and territorial aggrandizement.”
[22] There are many challenges getting the land back. The government’s approach seems at best ad hoc, and decisions are too often left to the discretion of the security forces, without a serious effort to systematically map and review military use of land as well as the status of release and reparations initiatives.
[23] The report also talks about specific incidents where people have filed complaints in the court for their land and have been harassed forcing them to withdraw these complaints. Most cases that have been filed are either still ongoing or did not result in the release of the lands.
[24] There are also numerous documents in both the National Documentation Package and counsel’s Country Conditions Package that discuss the rise in anti-Muslim sentiment that has occurred in Sri Lanka over the past six or seven years. There’s been violent attacks, threats, and harassments that came to a head in 2018 after the Candy Riots and again, in 2019 after the Easter bombings.
[25] The articles in Exhibit 7 as well as Items 1.9, 2.1, 2.2, 2.4, 12.1, 12.5, 12.6, 12.8, and 12.9 in Exhibit 3 all discuss the myriad of attacks against Muslims in retaliation for the Easter bombings.
[26] Exhibit 7, there’s an article that talks about “angry mobs” going house to house to attack and threaten Muslims. On article — another article in Exhibit 7 states that the Human Rights Watch is urging the government to stop mob violence, threats, and discrimination against Muslims. Authorities are arbitrarily arresting and detaining hundreds under counterterrorism and emergency laws, and there had been a lot of arrests under the Prevention of Terrorism Act, which allows long-term detention without charge or trial.
[27] Human Rights Watch spoke to lawyers who had a list of 105 detainees that summarized the justification for arrest by authorities and included such reasons such as keeping money at home, talking in a playground, a post that’s shared on social media five years back, having English lecturer documents, Arabic songs on their laptop, or travelling to Jaffna for a job. Or simply no reason. Abuses by authorities had long been prevalent and unaddressed by the government.
[28] And Government leaders themselves appeared to associate themselves with Buddhist Nationalist elements. On May 23rd, 2019, then President Sirisena pardoned the leader of (indiscernible) of the Buddhist-extremist group known for targeting Muslims.
[29] In Item 12.8 which was also included in Exhibit 7, states that months after the Easter bombings, the situation is still dangerous, even though attacks were committed by a fringe group of Muslims. Muslims in general are facing significant backlash.
[30] The government has sat idly by or even egged on violence and political divisions in Government have constructed efforts to reform the dysfunctional police and intelligence services.
[31] Since the election of Gotabaya Rajapaksa as President in 2019, and Mahinder (ph) Rajapaksa as Prime Minister in 2020, the security situation and conditions in Sri Lanka have only deteriorated. Concerns of any gains made under the previous government towards improving the human rights situation, would be reversed are reflected both counsel’s Country Conditions Package and the National Documentation Package.
[32] Item 2.13 noted that the concern that the government will roll back any progress made under the previous government towards improving the human rights situation and that this government will renege on promises made under the former government. Item 4.13 of the National Document Package states that since Rajapaksa seeking power there is a trend towards authoritarianism and militarization. There has been a crack down on human rights with no regard for minorities. Rajapaksa is dismissive of what he calls divisive political demands and frames them as a result of manipulation by Tamil politicians and western aligned interests.
[33] Item 13.1 states that human rights have deteriorated significantly since Rajapaksa was elected president. Both Gotabaya and Mahinder Rajapaksa have espoused anti-Muslim news publicly. An article in Exhibit 7 sates that Gotabaya campaigned on the province to protect Sri Lanka from the Muslim threat, and after the election, he appointed an all male cabinet with no Tamil or Muslim representatives.
[34] Another article from 2020 states that Gotabaya and Mahinder Rajapaksa campaigned on a nationalist platform projecting your family as protectors of the Sinhalese Buddhist population. There has always been anti-Tamilism (ph) in the country, but recently there has been arise in hatred against the Muslim minority too. Mahinder Rajapaksa’s message has been that Sri Lanka belongs toto the Sinhalese and that Tamils are Muslims are their permanent threats.
[35] In 2020, a year after the Easter bombings, the situation from has not improved, and in fact, has worsened due to the global pandemic of COVID 19. Item 12.5, which was also included in exhibit 7, states that concerns were raised in April 2020 about recent arrests of well-known Muslims, biased government actions and rising ant-Muslim hate speech. COVID has worsened the situation, where there has been calls to boycott Muslim business and accusations that Muslims are deliberately spreading COVID 19. Senior government figures have made public remarks associating the Muslim community with COVID 19 infections.
[36] Another article states that the government’s frequent incidents of demonization, vilification and state guarding of Sri Lanka’s Muslim population are a cause of great concern. The government has mandated cremation for those who have died due to COVID 19 and the body of the first Muslim death due to COVID 19 was forceable cremated against the wishes of his family and against urging of the Muslim community and religious leaders, a policy that was seen as discriminatory. This was also reflected in Item 12.9, which again noted the discriminatory law mandating cremation for those who die from COVID and for accusing the Muslim community being at high risk for spreading the disease. In the past year [XXX] have been arbitrarily arrested and accused critiquing Buddhism and the government.
[37] Furthermore, the objective documents confirm the risk he would face on return to Sri Lanka as a Muslim who is under investigation by the TID and has been accused of engaging in anti-government and anti Buddhist activities. Item 1.9 of the National Documentation Package states that there is a watch list which includes names of those individuals of the Sri Lankan Security Services considered to be of interest, including for suspected separatists or criminal activities.
[38] Item 4.11 states that returning failed asylum seekers would likely be questioned at the airport by immigration officials and may be passed to the criminal investigation department. But they do security checks at the airport where they look into a police database from where the returnee is from, and it is not unusual to have further checks at home and to be monitored.
[39] Item 14.6 states that returnees are checked against the watch list maintained by police as well as one maintained by State Intelligent Services. Returnees are questioned on arrivai by the Department of Immigration and Emigration, State Intelligence Services and Criminal Investigation Department for a few hours to several days. They may also be visited by police at their residence at a later time after the interrogation. Returnees from western countries in particular are placed under surveillance to determine whether they have ties to the LTTE.
[40] Therefore, based on this documentary evidence, I find that the claimant has an objectively well-founded fear of persecution.
[41] I find that state protection would not be available to you were you to seek it in Sri Lanka. Where agents of the state themselves are sources of persecution, the presumption of state protection may be rebutted without exhausting ail avenues of recourse in the country. In this case, the agents of persecution are the state; the police, army and intelligence community. Your evidence is that since fleeing, the TID has informed your wife that you are under investigation for engaging in anti-government activities. For that reason, it would not be reasonable to expect you to approach the state for protection.
[42] The National Documentation Package also contains information about the Human Rights Commission in Sri Lanka. Item 1.9 states that the commission can only make recommendations to the Attorney General, but there is evidence that the state is not investigating a major of complaints filed. This report further states that Sri Lanka Jacks independent and efficient mechanisms to address complains to torture.
[43] Item 2.2 also states that limited steps are taken to hold perpetrators of serious human right violations accountable. In Item 2.3, it is noted that police and security forces are known to engage in abusive practices, including extra judicial executions, forced disappearances, custodial rape, and torture.
[44] So in light of the objective country documentation, as well as your persona) experience, I find that the claimant has rebutted the presumption of state protection. And based on this information again, I find that there would not be adequate state protection available to you in Sri Lanka.
[45] I have also considered whether a viable internal fight alternative exists for you, however, given that the agent of persecution is the state and you have been targeted both the army and TID, I find that you face a serious possibility of persecution throughout Sri Lanka. Item 1.9 states that Sri Lankan forces maintain effective control throughout the country and individuals are unlikely to relocate internally with anonymity. You are known to security officials who believe you have engaged in anti-government activities. Security officials have repeatedly gone to your home looking for you and have instructed your wife to have you present yourself to the Ampara police station (indiscernible). Therefore, I find there is no viable IFA, or internal flight alternative, for you in Sri Lanka.
[46] Based on the totality of the evidence, I find that you have established on a balance of probabilities that there is a serious possibility of persecution if you were to return to Sri Lanka. Therefore, I find that you are a convention refugee and your claim is therefore accepted.
———- REASONS CONCLUDED ———-
