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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 ———-