2022 RLLR 131

Citation: 2022 RLLR 131
Tribunal: Refugee Protection Division
Date of Decision: January 10, 2022
Panel: Zoe Knes-Gray
Counsel for the Claimant(s): Ian D Hamilton
Country: Sri Lanka
RPD Number: TB8-21581
Associated RPD Number(s): TB9-07610
ATIP Number: A-2023-01023
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is a decision for the claimants XXXX and XXXX. You are claiming to be citizens of Sri Lanka and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. I find that you meet the definition of Convention refugees under Section 96 of the IRPA for the following reasons.

ALLEGATIONS

[3]       The specifics of your allegations are set out in your Basis of Claim forms as amended. In summary, you allege that you have been harassed and abused by army intelligence officials and religious extremists in Sri Lanka due to their belief that you were supporting the LTTE and converting Sinhalese Buddhists. You allege that if you return to Sri Lanka you will be persecuted due to your imputed political beliefs. You allege that there is no state protection for you or an internal flight alternative.

Identity

[4]       Your personal identity as citizens of Sri Lanka has been established by your testimony and supporting documents filed exhibits, specifically your passports issued by the government of Sri Lanka. I, therefore, find on a balance of probabilities that identity and country of reference have been established.

Nexus

[5]       I find that there is a link between what you fear and Convention Grounds. For the principal claimant, his imputed political opinion as an alleged LTTE supporter and for the associate claimant, her kinship to the principal claimant.

Credibility

[6]       Overall, I have found you to be credible witnesses. You testified in detail about your initial arrest in October 2008, explaining how it stemmed from your work in XXXX. The police allege that you were XXXX and arrested you at your home. You provided details about the questions that they asked you, how they checked your phone conversations and eventually released you after three (3) days. You also spoke about a further arrest in March 2009, due to you renting an apartment to a Tamil man who had been accused of involvement with the LTTE. You also spoke about this event in detail, including the questions asked of you, the accusations that you were an LTTE Tiger and the physical assaults that you endured.

[7]       Both of you testified about an incident on May 1, 2018, where unknown individuals came to your home and drugged you so that you would fall unconscious and then raided your home, taking numerous things. The principal claimant was then arrested again in August by people that he believed to be connected to the state. So, you explained that the reason for this belief were that these individuals knew details, information about you and your prior activities in England as well as your past arrests. You provided a description of the location where you were held and provided details about the questions asked and the accusations made that you were working with the LTTE.

[8]       You also testified that the police came to your father’s home on August 3, 2020, inquiring about your whereabouts. This information was not mentioned in your narrative, but it was provided in an affidavit from your father. When asked about this, you explained that you did not realize that you should include this information in your narrative, since it was included in the affidavit. I accept this explanation as reasonable and do not draw a negative inference from this omission.

[9]       Your testimony was spontaneous, detailed and otherwise consistent with your Basis of Claim form. There were no other omissions or contradictions going to the core of the claim. Your also provided documentary evidence to support your claim, including affidavits from individuals in Sri Lanka and photos of your charity work. I find that these documents are credible and support your allegations.

[10       Based on the totality of the evidence, I find that your subjective fear is established by your credible testimony and I believe what you have alleged on a balance of probabilities. I find that you have been harassed and abused by on multiple occasions by intelligence officers in Sri Lanka, due to their belief that you are an LTTE supporter.

Objective Basis

[11]     I also find that there is an objective basis for what you fear in Sri Lanka. Section 13.1 of the National Documentation Package for Sri Lanka states that security forces regularly monitor and harass community members, especially activists and former or suspected LTTE members. Community members report monitoring by authorities of public gatherings and protests and targeted surveillance and questioning of individuals in groups. Sources indicate that since the 2019 election, the human right situation has deteriorated significantly and that there has been an increase in repression and abuses, including increased incidents of police brutality. Arrests of former LTTE combatants have also significantly increased through search operations.

[12]     Based on your credible testimony and the objective evidence in the National Documentation Package, I find that your subjective fear of persecution is well-founded. I am satisfied that you face a serious possibility of persecution if returned to Sri Lanka and that this risk would continue due to your imputed political opinion as an LTTE supporters and for the associate claimant, her kinship to the principal claimant.

State Protection

[13]     I find that state protection would not be available to you, were you to seek it in Sri Lanka. When agents of the state themselves are the source of one’s persecution, the presumption of state protection may be rebutted without exhausting all avenues of recourse in the country. In this case, the agents of persecution are the state, who have detained you on multiple occasions.

[14]     The NDP at Item 1.9 states that Sri Lanka lacks in independent and efficient mechanism to address complaints of torture. At Item 2.2, it also states that limited steps are taken to hold perpetrators of serious human rights violations accountable.

[15]     So, in light of the objective country documentation as well as your personal circumstances, I find that you have rebutted the presumption of state protection and that adequate state protection would not be available to you in Sri Lanka, on a balance of probabilities.

Internal Flight Alternative

[16]     I have also considered whether a viable internal flight alternative exists for you. You are known to the army, who believe that you are supporting the LTTE. Given that the state has targeted you, I find that you face a serious possibility of persecution throughout Sri Lanka.

[17]     Item 1.9 of the NDP states that Sri Lankan forces maintain effective control throughout the country and individuals are unlikely to relocate internally with anonymity. I also find that the risk created by the principal claimant’s imputed political opinion extends to the associate claimant due to her kinship to him. State agents may assume that the associate claimant is also an LTTE supporter given her connection to her husband, where they may target the claimant in an effort to obtain information or influence her husband. I also note that the associate claimant has already experienced abuse as a result of her husband being targeted. Specifically, on May 1, 2018, when both she and her husband were drugged in their home.

[18]     I, therefore, find that there is no viable flight alternative for you in Sri Lanka.

CONCLUSION

[19]     Based on the totality of the evidence, I find you to be Convention refugees as per Section 96 of the Immigration and Refugee Protection Act. Therefore, I accept your claims.

——— REASONS CONCLUDED ———