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.