Categories
All Countries Sri Lanka

2020 RLLR 43

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 ———-

Categories
All Countries Sri Lanka

2020 RLLR 20

Citation: 2020 RLLR 20
Tribunal: Refugee Protection Division
Date of Decision: June 19, 2020
Panel: Tyler Nicholson
Counsel for the Claimant(s): John W Grice/Cemone Morlese
Country: Sri Lanka
RPD Number: TB9-00748
Associated RPD Number(s): TB9-00789, TB9-00806, TB9-00807
ATIP Number: A-2021-00540
ATIP Pages: 000124-0000129


REASONS FOR DECISION

[1]       The claimants [XXX] (hereafter the “male claimant”), [XXX] (hereafter the “female claimant”), [XXX], and [XXX] purport to be citizens of Sri Lanka. They have claimed refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

Designated Representative

[2]       At the time of the hearing, the minor claimants [XXX] and [XXX] were minors. As the principal claimant is their father, the panel designated him as their representative. At the start of the hearing, the principal claimant confirmed his role as the designated representative and his responsibilities therein.

[3]       Given their ages, the panel did not require the minor claimants to testify during the hearing.

ALLEGATIONS

[4]       The claimants’ allegations are set out in full in their Basis of Claim (BOC) forms.2 The claimants allege that they are being persecuted due to the male claimant’s work as [XXX] for a NGO that [XXX] of politicians.

[5]       The male claimant claimed to have become involved with the [XXX]. As part of his work, he investigated a number of prominent politicians and after reporting discrepancies in their [XXX], testified he became a target.

[6]       The claimant indicated that he was kidnapped, brought to a rural village, and severely beaten, and was threatened with further harm.

[7]       The claimants left Sri Lanka on [XXX], 2018. The principal claimant’s mother testified that the police have come to their house repeatedly and asked about the claimants.

DETERMINATION

[8]       The panel concludes that the claimants are persons in need of protection due to a risk to their lives.

ANALYSIS

Identity

[9]       The panel was provided with true copies of valid passports and birth certificates from Sri Lanka for all claimants.3

[10]     The panel finds that these documents and the testimony of the claimants are sufficient to establish their identities on a balance of probabilities.

Nexus

[11]     The claimants are Sinhalese, Buddhist, and speak the Sinhala language, in common with the majority of the country.

[12]     The claimant indicated that he was being targeted due to his political affiliation with [XXX] political party, the National Unity Alliance. The male claimant was asked what party symbol appeared on ballots next to the party name, a traditionally important symbol in Sri Lankan politics.

[13]     The claimant indicated he did not know. When it was put to him that it traditionally used an image of eyeglasses, the claimant was candid with the panel that he was not heavily involved in the political side of the foundation, and did not regularly vote.

[14]     The panel finds it unlikely that the male claimant would be imputed as a supporter of a political movement he had next to no involvement in. Given the male claimant’s clear testimony on the matter, the panel did not draw a negative inference with regard to his credibility.

[15]     Taking in to account the claimant’s BOC narrative and his testimony, the reason his agents of persecution are targeting him relies on his performance of accounting duties with [XXX] and his probable reporting of crimes and regulatory offences. It is not because of his political beliefs. The panel finds that the male claimant was not politically involved in Sri Lanka, and finds that there is not a nexus connection to the Convention on the ground of political belief. This also means that the other claimants are not members of a particular social group as family members of the male claimant.

[16]     The panel finds that the claimants have not established a nexus to the convention. The panel must find that the claimants are not Convention refugees. The panel will continue its analysis regarding Section 97(1) of IRPA.

Credibility

[17]     The panel found both adult claimants to be generally credible in their testimony. They answered questions clearly and completely, were spontaneous, and did not seem calculating in their responses. The claimants also provided considerable corroborating documentary evidence, including affidavits from family members, medical notes, and letters from the organizations the male claimant was a member of.

[18]     The panel accepts that the male claimant worked as an [XXX], that he was abducted and beaten by the police as described, and that the other claimants were threatened due to his actions.

Objective Basis

[19]     The panel also considered objective evidence contained in the National Documentation Package, which noted that police in Sri Lanka are notorious for being able, despite legal guidelines, to arbitrarily detain and question suspects.4 The panel finds that, given the local police and other thugs have been after the claimants, the claimants have credibly indicated that the claimants have been targeted by the agents of persecution and are being pursued and face a risk to their lives.

[20]     Given the specific targeting of the claimants due to the male claimant’s accounting of funds of specific politicians, the panel finds that this would not be a risk generally faced by others, and is not inherent or incidental to lawful sanctions.

[21]     The panel finds that the claimants have established an objective basis for their claim, and finds that they fear, on a balance of probabilities, a risk to their lives or of cruel and unusual treatment or punishment if detained.

STATE PROTECTION

[22]     The state is presumed able to provide adequate protection to its citizens. Therefore, claimants have the duty to seek state protection before seeking protection in Canada. However, in certain circumstances, it would be objectively unreasonable to expect a claimant to do so. Furthermore, the protection available to a claimant may not be adequate given their specific circumstances.

[23]     The claimants testified that the local police were targeting them, and that they feared going to authorities due to them being targeted by politicians. This is corroborated by objective evidence, which notes that witness protection regimes in Sri Lanka are not considered viable or up to international standards, and are prone to abuse.5

[24]     The panel finds that the claimants have rebutted the presumption regarding adequate state protection existing in Sri Lanka.

Internal Flight Alternative (IFA)

[25]     The panel finds the claimants have credibly established that the agents of persecution have the ability to track the claimants, given that they have effective control over the entire country, and finds that there is no IFA for the claimants in the entirety of Sri Lanka due to a risk to the claimant’s life existing, on a balance of probabilities, throughout Sri Lanka.

CONCLUSION

[26]     The panel finds that the claimants, on a balance of probabilities, face a threat to their lives if they were to return to Sri Lanka and are persons in need of protection.

[27]     Their claims are accepted.

(signed)           Tyler Nicholson

June 19, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Exhibits 2-5.
3 Exhibit 8, pp. 73-89.
4 Exhibit 3, 1.4 at 8.2.4
5 Exhibit 3, 1.4 at 6.6.4, 1.9 at 5.12.

Categories
All Countries Sri Lanka

2020 RLLR 4

Citation: 2020 RLLR 4
Tribunal: Refugee Protection Division
Date of Decision: October 20, 2020
Panel: A. W. Chin
Counsel for the Claimant(s): Meghan Wilson
Country: Sri Lanka
RPD Number: TB9-16354
ATIP Number: A-2021-00540
ATIP Pages: 000028-000032


DECISION

[1]       MEMBER: This is a decision for the claimant [XXX] file number TB9-16354. The hearing date is October the 20th, 2020.

[2]       I’ve considered your testimony and the other evidence in this case and I’m ready to render my decision orally.

[3]       You are claiming to be a citizen of Sri Lanka and are claiming refugee protection pursuant to Sections 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[4]       I find that you are a Convention refugee on the grounds of your imputed political opinion for the following reasons:

Allegations:

[5]       Your allegations are found in your Basis of Claim Form and related narrative which are found in Exhibit 2.

[6]       You alleged that you lived in the Vanni area during the civil war which was an LTTE controlled area. You then moved to Jaffna under army control where they grew to be suspicious of you since you had come from Vanni. You moved to Columbo in 2006.

[7]       You … you allege that on [XXX] of 2008, the police raided a market where you were located. They checked your ID and found that you were found from Vanni and then you were detained and abused for two days. They asked you questions about your involvement in the LTTE and you were released.

[8]       On [XXX], 2009, you allege that you moved to Chani, India on a tourist visa and registered as a refugee there and subsequently got a degree in [XXX] there. During this time you allege that you’d taken interest in Tamil refugees and started work on a documentary outlining the challenges that they face.

[9]       Sometime in [XXX] of 2017, you allege that you mailed a portion of the documentary to a Tamil leader in Jaffna. You then returned to Columbo on [XXX] of 2017.

[10]     Upon returning at the airport, you allege that you were detained where you were questioned, abused, and accused of spreading anti-government propaganda and being a supporter of the LTTE. You were held for [XXX] days and then released after you learned that your mother had bribed the police.

[11]     You allege that on [XXX] of 2018, when you were [XXX] for a [XXX] you were approached and detained by at TIB Head Office in Columbo where you were beaten and questioned again.

[12]     You allege that you managed to escape while left unattended at the [XXX] hospital. You fled to your aunt’s house for three months after which point an agent arranged for your departure to Canada.

[13]     You allege that you’ll be harmed or killed anywhere throughout Sri Lanka since you were found in Columbo and you will not be protected.

Identity:

[14]     With respect to your identity, I find your identity has been established, on a balance of probabilities, as a national of Sri Lanka by your testimony and the supporting documents you provided, namely your expired passport, birth certificate, and national ID card.

Nexus:

[15]     I find there is a nexus between what you fear in Sri Lanka and Section 96, namely on the ground of imputed political opinion for the reasons that follow.

Credibility:

[16]     In terms of your general credibility I found you to be a credible witness and therefore accept what you have alleged in your oral testimony and your Basis of Claim Form.

[17]     In support of your claim you provided or rather counsel provided a country conditions document which supports what I’ve noted in the objective evidence.

[18]     You also provided education records and evidence of your prior refugee registration in India, a letter from your mother, a letter from your aunt which supports where you were hiding, a letter from your friend who attested to your detainment in [XXX], is [XXX] 2018, and a letter from a member of parliament in Jaffna. You also provided a photo of your injuries.

[19]     I’ve reviewed that evidence and I found it to be consistent with the testimony that you’ve given today.

[20]     You testified in detail about the detainments and abuses that you had to endure, specifically, the [XXX] detainment where you were at the market, the [XXX], 2017 detainment when you were coming back from the airport, and the [XXX], 2018 detainment when you were preparing for the memorial service.

[21]     I found your testimony in this regard to be credible. Therefore, I find that you’ve established your subjective fear, on a balance of probabilities.

[22]     With respect to the objective evidence, it indicates that there’s an ongoing risk for Tamils who are suspected of supporting the LTTE. These supporters, whether real or perceived, are still subject to abuses at the hands of Sri Lankan authorities, including arbitrary arrest and detention where torture and other human rights infringements are known to occur.

[23]     I further note that the objective evidence indicates that the majority of victims of enforced disappearances have been male.

[24]     COUNSEL:  Sorry, can you lift your … your mask up?

[25]     INTERPRETER: Yeah, sorry.

[26]     COUNSEL: Thank you.

[27]     MEMBER: Thank you.

[28]     Item 1.8 indicates that the Sri Lankan military police and intelligence services have continued to practice torture, including other forms of sexual torture in the years of peace since the end of the armed conflict.

[29]     Those at a particular ongoing risk of torture includes Tamils with real or perceived associations with the LTTE at any level and whether or not it’s current or historic.

[30]     Torture and sexual violence have occurred under the new government in known army camps throughout the north of Sri Lanka and there are secret camps that are still operating in unknown but diverse places throughout Sri Lanka.

[31]     I’ve also found there to be evidence of detainments at airports. Item 1.4, specifically Section 8.2.5, indicates that there … arbitrary detentions still occurs for Tamils returning to Sri Lanka from abroad and that these individuals are monitored. More information can be found in Item 13.5.

[32]     I found this evidence to be consistent with the testimony that you gave today and what’s in your narrative and therefore I find that your subjective fear has an objective basis. Therefore, I find that you’ve established a well-founded fear within the meaning of Section 96, on a balance of probabilities.

[33]     Therefore, on a balance of probabilities, I find that those three detainments that I had mentioned earlier had occurred in the manner that you allege.

State Protection:

[34]     I find your agent of persecution is the Sri Lankan police and military groups which are Federal institutions. Therefore, I find it objectively unreasonable for you to seek out protection and that State protection could not be seen as being reasonably forthcoming. I find the presumption of State protection is rebutted.

[35]     I’ve also considered whether there is a viable internal flight alternative for you. Given that the agent of persecution is also the State, I also find that the claimant’s IFA analysis fails at the first prong of the test and therefore an IFA is not available to this claimant, as you’d be located by the police or authorities throughout Sri Lanka.

[36]     In conclusion I found you to be credible in relation to the material elements of your claim. You testified in a straightforward and spontaneous manner and you didn’t embellish your story.

[37]     Therefore, on the basis of the totality of the evidence I accept your claim pursuant to Section 96 of the Immigration and Refugee Protection Act and I find that you’re a Convention refugee. Your claim is accepted.

———- REASONS CONCLUDED ———-

Categories
All Countries Sri Lanka

2019 RLLR 95

Citation: 2019 RLLR 95
Tribunal: Refugee Protection Division
Date of Decision: June 25, 2019
Panel: S. Shaw
Counsel for the claimant(s): Ian D. Hamilton
Country: Sri Lanka
RPD Number: TB8-03757
ATIP Number: A-2020-01459
ATIP Pages: 000084-000089


DECISION

[1]       MEMBER: This is the decision of refugee protection claim for file number TB8-03757.

[2]       The panel has considered the claimant’s testimony and the other evidence in this case and is ready to render an oral decision.

[3]       The claimant is a citizen of Sri Lanka and is claiming refugee protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act.

[4]       Since this case involves gender related issues the panel also considered the guidelines within Chairperson’s guideline number four titled women refugee claimants fearing gender related persecution.

[5]       Preliminary issues were also addressed at the hearing, and the panel accepted late disclosure documents which are relevant and probative to this claim and these documents were accepted as exhibits. The panel notes this hearing was held in two sittings.

[6]       With regards to determination, the panel finds that the claimant is a Convention refugee for the following reasons. The claimant has established a serious possibility of persecution based on the Convention grounds of a perceived political opinion and her ethnicity.

[7]       The claimant’s allegations are set out in the claimant’s Basis of Claim Form and her amended Basis of Claim Form and was further supplemented by her testimony and supporting documents.

[8]       The claimant alleges that she fears persecution at the hands of the Sri Lankan army and pro­government militants, including the Karuna group because of the perceived political opinion that she is a supporter of the Liberation Tigers of Tamil Eelam, herein called the LTTE. The claimant also fears persecution in Sri Lanka because her … of her ethnicity as a Tamil.

[9]       In summary, the claimant is a 26-year-old single female from Jaffna the Northern Region of Sri Lanka. She grew up during the civil war and was fearful because the Sri Lankan army visited her family home on several occasions in search of LTTE supporters.

[10]     The claimant alleges that she was detained by police on a number of occasions which started back in January of 2009. In April 2009 she was taken to an army camp with other girls where she was beaten and accused of joining the LTTE.

[11]     While at university in Batticaloa the claimant alleges that she also encountered problems with the army Intelligence Unit and members of the Karuna group who interrogated her because she was suspected of being an LTTE supporter. And she was accused of being a Tamil Tiger Cub at that time.

[12]     In May 2016 at age 23 the claimant returned to Jaffna and became an active member of her community. She was again questioned by army officers in relation to her community activities and her perceived LTTE activities.

[13]     The claimant alleges that the main fearful incident that led to her decision to flee Sri Lanka occurred in November 2017 when she was taken to an army camp where she was detained for seven hours and interrogated after being accused of being an LTTE supporter. During her interrogation an army officer made physical, sexual advances towards her and she was threatened with detention under the country’s Prevention of Terrorism Act.

[14]     As a result of this incident of November 28th, 2017 the claimant’s father contacted an agent smuggler who secured a false Canadian passport for the claimant. The claimant fled Sri Lanka on [XXX], 2017, arriving in Canada the following day, and she claimed refugee protection a few weeks later.

[15]     With regards to analysis, the panel considered all of the evidence submitted and determined the following.

[16]     On a balance of probabilities, the claimant’s identity as a citizen of Sri Lanka is established by testimony and the copy of her national identity card and birth certificate.

[17]     With regards to credibility, testimony given under oath is presumed to be true unless there is a valid reason to doubt its truthfulness.

[18]     The panel considered the claimant’s testimony as a whole and the panel finds that the claimant was a credible witness and the panel believes what has been alleged in support of this claim relating to the key elements of this claim.

[19]     Although the claimant’s testimony was disjointed at times during the hearing, nonetheless, the panel is satisfied that her testimony was generally consistent with … in relation to central elements of this claim. Further, the panel is satisfied that any inconsistencies, contradictions, or omissions that were central to this claim are adequately explained.

[20]     Specifically, the panel is satisfied that the claimant did not claim refugee protection in India prior to coming to Canada since she was in transit through India en route to Canada.

[21]     The panel is also satisfied that the claimant would be of interest to the Sri Lankan authorities as they have visited her family since she left Sri Lanka to inquire about her whereabouts.

[22]     In addition, the panel is cognizant that the claimant was interrogated by the CID and jailed at the Negombo Prison in [XXX] 2016 where she was fingerprinted and again accused of being an LTTE members. So, returning to Sri Lanka could increase this claimant’s risk for interrogation and detention.

[23]     In addition, the claimant provided corroborating documents as evidence including a support letter from her father, medical diagnostic ticket report, and other documents that the panel considered credible.

[24]     Therefore, after review, the … the panel satisfied, on a balance of probabilities, that the claimant’s allegations are credible and further, the panel accepts that the claimant has established a subjective fear of persecution if the claimant returns to Sri Lanka.

[25]     With regards to objective evidence and the objective basis of this claim, the panel finds that this claimant’s allegations are corroborated by the country conditions as noted in the National Documentation Package and in counsel’s disclosure package.

[26]     The panel is satisfied that this claimant fits the profile of a young Tamil individual from the Jaffna Region who is perceived as a LTTE supporter by the Sri Lankan authorities and whose family members are also linked to the LTTE. And therefore this profile is further of interest to the Sri Lankan Government.

[27]     The panel is satisfied that this profile is supported by the NDP country condition documents. Specifically, noted in Items 1.4, 1.1(1), 2.2, 13.7, 1.9, and 13.10, as well as other references within the country conditions documentation.

[28]     Therefore, when assessed in context of the country conditions the panel is satisfied that this claimant’s subjective fear of persecution have an objective basis.

[29]     Specifically, the NDP notes that Sri Lankan authorities have been actively engaged in rooting out LTTE supporters and those viewed as having connections with the LTTE, and if a person is detained by the Sri Lankan security forces then there remains a real risk of ill-treatment or harm which requires international protection.

[30]     Amnesty International also remains concerned that the persistent climate of impunity in Sri Lanka as the government has failed to provide minorities with protection from violence and discrimination or has failed to protect those suspected of LTTE links.

[31]     Amnesty International is also concerned that Tamils continue to experience harassment, threats, and arrest by security forces whom they suspect of LTTE links and this is based largely on their ethnicity and their place of origin or where they live, and it is more militant with regards to Tamils from the north.

[32]     The NDP also indicates with regards to gender related issues, in Item 13.8 that it is a well known reality that rape of women by security forces take place in Sri Lanka, and Items 1.4 indicates that … that the UN Human Rights Council Special Rapporteur report notes that women in the north and east of Sri Lanka continue to suffer from the scars of the conflicts of war, as well as the insecurity that resulted from the subsequent militarization.

[33]     Also, in the last stages of the war and its aftermath human rights abuses against civilian population by both sides of the conflict were rife, including sexual and gender based violence. The climate of impunity and the additional insecurity created by the militarization have meant that women are living with multiple challenges that threaten their freedom, dignity, and security on a daily basis.

[34]     And although sexual assaults by military personnel are said to have decreased with the downsizing of the army in the north and east, nonetheless, the climate of fear still remains amongst Tamil women in that area where the military presence have continued.

[35]     In addition, Item 1.4 of the NDP notes that Tamil women in Northern Sri Lanka still face the risk of rape and harassment by security forces who are present throughout the region and that their lives are even more negatively impacted by the climate of fear or by a worrying uptick in violence against women within the Tamil community. The ever present threat of violence by the military has led women to lead tightly restricted lives, limiting their daily activities in order to minimize their risk of sexual assault.

[36]     Next with regards to State protection, the panel finds that the claimant has rebutted the presumption of adequate State protection with convincing evidence that adequate separate is not available to this claimant and is not reasonable forthcoming in this case since the agents of persecution are the Sri Lankan security forces, specifically, the army and its affiliates.

[37]     Review of country conditions also specifically indicate in Items 2.10, 9.2, and 10.9 which summarizes that Tamils throughout Sri Lanka, especially those in the north and east, have reported security forces regular surveil or harass members of their community.

[38]     And further, many human rights challenges still persist in Sri Lanka, including torture and ill­treatment of detainees and surveillance and harassment of civil society and those perceived to be LTTE sympathizers.

[39]     Item 2.1 in the NDP notes that State agents commit human rights abuses with impunity and that a general culture of impunity still remains in Sri Lanka.

[40]     After review, the panel is also satisfied that no viable internal flight alternative exists for this claimant because she would face a serious possibility of persecution throughout Sri Lanka because her agents of persecution are associated with the ruling government and their affiliates such as the army and the police who have control throughout the country.

[41]     In conclusion based on the totality of the evidence and the previously mentioned analysis the panel finds that this claimant has established a serious possibility of persecution based on the Convention ground of a perceived political opinion that she is viewed as an LTTE supporter and hence, viewed as anti-government and based on her ethnicity as a Tamil female.

[42]     Therefore, this panel concludes that this claimant is a Convention refugee as defined by Section 96 of the Immigration and Refugee Protection Act. And as such, the panel accepts this claim for refugee protection in Canada.

[43]     That is the end of the decision and its reasons.

[44]     Thank you all. Thank you, Mr. Interpreter. Thank you, ma’am. Counsel, thank you. And I do appreciate your comments and your apology earlier, counsel. Thank you. I appreciate that.

[45]     That brings me to the end and the hearing is now concluded. We are off record.

———- REASONS CONCLUDED ———-

Categories
All Countries Sri Lanka

2019 RLLR 90

Citation: 2019 RLLR 90
Tribunal: Refugee Protection Division
Date of Decision: November 6, 2019
Panel: James Waters
Counsel for the claimant(s): Raoul Boulakia
Country: Sri Lanka
RPD Number: TB8-00236
ATIP Number: A-2020-01459
ATIP Pages: 000048-000054


REASONS FOR DECISION

[1]       The 29-year-old claimant, [XXX], claims to be a citizen of Sri Lanka, and claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The allegations in support of his claim are set out in detail in his Basis of Claim Form (BOC) narrative.2 The following is a short summary.

[3]       The claimant left Sri Lanka for India with his mother and siblings in 1999, to escape the fighting between the Sri Lankan Army and the Liberation Tigers of Tamil Eelam (LTTE). The claimant returned to Ukulankulam, Sri Lanka in 2003, and studied at [XXX], where he was a student prefect.

[4]       In April 2006, the claimant was kicked while being interrogated at home by the Sri Lankan Army, concerning his attendance as a representative of his school at what had been a Tamil cultural event, which turned out to be an event organized by the LTTE to promote their cause and recruit students.

[5]       The claimant returned to India on [XXX] 2006. His activity as an [XXX] of a 2009 protest at the Pooluvapatti Refugee Camp, demanding a halt to the war in Sri Lanka, brought him to the attention of the Q Branch of the Indian police. In 2013, the claimant attended a large student protest in Chennai, accusing the Sri Lankan Army and government of genocide, and demanding that the Sri Lankan government and Army be held accountable for the atrocities committed against the Tamil people during and after the conflict with the LTEE.

[6]       The claimant alleges that his younger brother, [XXX], who had returned to Sri Lanka in 2014, was arrested and detained at an army camp in Vavuniya for his participation at a student protest held on October 24, 2016, after police killed two Jaffna University students. During his detention, [XXX] was questioned about the whereabouts of the claimant, and instructed to inform the claimant that he must attend for an inquiry whenever he returned from abroad.

[7]       The claimant became involved in publicizing an intrusion by members of an extreme wing of the Bharatiya Janata Party (BJP), a Hindu nationalist party, riding motorcycles into the Pooluvatti Refugee Camp on July 8, 2017. The claimant alleges that he was harassed and targeted by the Q Branch police in India, who pressured him to apply for a travel document to return to Sri Lanka.

[8]       The claimant was issued a passport that restricted his travel to refugee repatriation to Sri Lanka.

[9]       The claimant fears he will be detained and tortured on his return to Sri Lanka, as someone returning from abroad, suspected of fleeing Sri Lanka because of his association with the LTTE, and of supporting their cause abroad.

IDENTITY

[10]     The national identity of the claimant as a citizen of Sri Lanka was established by his oral testimony in the Tamil language, and the supporting documentation filed. The supporting documentation included: a certified true copy of his most recent Sri Lankan passport,3 as well as copies of his expired Sri Lankan passport, birth certificate, and birth registrations for his parents.4

CREDIBILITY

[11]     When a claimant swears that certain facts are true, this creates a presumption that they are indeed true, unless there is valid reason to doubt their veracity.5 The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.6

[12]     The claimant testified in a spontaneous direct manner. There were no significant discrepancies between his oral testimony and the information contained in his written narrative.

[13]     The claimant’s oral and written testimony as to returning to Sri Lanka from India in 2003 was supported by a copy of his Sri Lanka Deputy High Commission Emergency Travel Document, issued to his mother and her accompanying children, dated April 3, 2003.7 Similarly, his oral and written testimony as to returning to India on [XXX] 2006 was supported by an entry stamp in his expired Sri Lanka passport.8

[14]     The claimant’s oral and written testimony as to attending high school in Sri Lanka after his return was supported by a copy of his General Certificate of Education (O.L.) Examination results, dated May 4, 2005.9

[15]     The claimant’s oral and written testimony as to being a refugee from Sri Lanka, housed in refugee camps in the Indian state of Tamil Nadu after his return to India, was supported by a copy of his family identity card.10

[16]     His testimony as to his younger brother, [XXX], attending an October 24, 2016 large student demonstration in Colombo, protesting the killing of two Jaffna University students by the police was supported by an article from the Tamil Guardian which included a picture of [XXX] waving a sign.11

[17]     The claimant’s testimony as to his involvement in publicizing a violent incursion into the refugee camp he stayed at, by militants aligned with the BJP, was supported by a newspaper article and a copy of the photograph of the damaged motorcycles abandoned by the militants in the fracas that ensued after they entered.12

[18]     Having regard to all of the evidence, the claimant established, on a balance of probabilities, the main allegations outlined in his narrative. He established problems with the Sri Lankan Army that caused him to return to India in 2006. He established participation in demonstrations in India against the Sri Lankan government in 2009 and 2013. He did not use the expired 2017 Sri Lanka passport that permitted travel only to Sri Lanka.

OBJECTIVE BASIS

[19]     A British Home Office Report indicates that:

‘The focus of the Sri Lankan government’s concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka is a spent force…’

‘The government’s present objective is to identify Tamil activists in the Diaspora who are working for Tamil separatism …’

‘If a person is detained by the Sri Lankan security services there remains a real risk of mistreatment or harm requiring international protection.’ …

‘Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days…’

For persons whose names appear on either the ‘watch list’ or ‘stop list’ the risk of ill-treatment following arrival in Sri Lanka will be as a result of arrest and detention by authorities, rather than any prosecution itself for the crime or crimes for which the person is wanted.13 [footnotes omitted]

[20]     The latest Department of State (DOS) report indicates that the “[e]xcessive use of force against civilians by police and security officials remained a concern.”14

[21]     Amnesty International maintains that:

Individuals removed from Canada and suspected of having ties to the LTTE may be detained, interrogated and arrested by the CID or SIS upon arrival at the airport with respect to their reasons for return to Sri Lanka, activities in Canada and possible links to the LTTE. Such a person is at risk as a person returned from abroad, who may be presumed to have access to financial resources and/or international connections which could be exploited for financial gain by Tamil paramilitary groups or state agents.15

[22]     The documentary evidence provides an objective basis for the claim. The claimant has rebutted the presumption of state protection.

[23]     The claimant has established a serious possibility of persecution should he return to Vavuniya, based on his Tamil ethnicity and imputed political opinion.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[24]     An IFA arises when a claimant, who has a well-founded fear of persecution in his or her home area of the country, is not a Convention refugee, because he or she has an IFA elsewhere in the country.

[25]     The test to be applied in determining whether there is an IFA is two-pronged:

… the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.

…conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, [including those particular to the claimant,] for the claimant to seek refuge there.16

[26]     The Federal Court of Appeal sets a very high threshold for the unreasonableness test, requiring “nothing less than the existence of conditions which would jeopardize the life or safety of a claimant.”17 There must be “actual and concrete evidence of such conditions.”18 I identified Colombo as a prospective IFA.

[27]     Sri Lanka is an island country, and the Australian Department of Foreign Affairs and Trade report notes that, “Sri Lankan security forces maintain effective control throughout Sri Lanka and it is unlikely that individuals would be able to relocate internally with any degree of anonymity.”19

[28]     The claimant fears the Sri Lankan Army and police who are important parts of the state apparatus. The claimant has established a serious possibility of persecution throughout Sri Lanka.

CONCLUSION

[29]     I find the claimant, [XXX], to be a Convention refugee. I therefore accept his claim.

(signed)           James Waters

November 6, 2019

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC).
3 Exhibit 1, Package of information from the referring CBSA/IRCC, Certified True Copy of Passport.
4 Exhibit 4, Package of Personal Disclosure, at pp. 3-10, and 18-19.
5 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
6 Orelien, Joseph v. M.E.I. (F.C.A., no. A-993-90), Heald, Mahoney, Stone, November 22, 1991. Reported: Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.); (1991), 15 Imm. L.R. (2d) 1 (F.C.A.).
7 Exhibit 4, Package of Personal Disclosure, at pp. 16-17.
8 Ibid., at p. 19.
9 Ibid., at pp. 31-32.
10 Ibid., at pp. 20-25.
11 Ibid., at pp. 41-43.
12 Ibid., at pp. 46-47.
13 Exhibit 3, National Documentation Package (NDP) for Sri Lanka (March 29, 2019), item 1.4.
14 Ibid., item 2.1.
15 Exhibit 5, Country Conditions Package, at p. 23.
16 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] I F.C. 706 (C.A.), at paras 6 and 9.
17 Ranganathan: M.C.I. v. Ranganathan, Rohini (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. Reported: Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.), at para 15.
18 Ibid.
19 Exhibit 3, NDP for Sri Lanka (March 29, 2019), item 1.4.