2022 RLLR 85

Citation: 2022 RLLR 85 
Tribunal: Refugee Protection Division 
Date of Decision: May 27, 2022 
Panel: Avril Cardoso 
Counsel for the Claimant(s): Max Berger 
Country: Sri Lanka 
RPD Number: TC1-11496 
Associated RPD Number(s): TC1-11497, TC1-11498 
ATIP Number: A-2023-01023 
ATIP Pages: N/A 

DECISION 

[1]     MEMBER: This is the decision for XXXX XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX 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.  In coming to my decision I have considered and applied the Chairperson’s Gender Guidelines.  

DETERMINATION 

[2]     I find that you are Convention refugees on the grounds of race and the particular social groups of women and family for the following reasons.  

ALLEGATIONS 

[3]     You allege the following.  Your husband was Tamil and you faced harassment and threats because you are Sinhalese and the interracial marriage was not accepted.  You feared for your safety and came to Canada where you claimed protection.  You allege if you return you face persecution.  You allege that there is no state protection for you or an Internal Flight Alternative.  

IDENTITY 

[4]     I find that your personal identities as citizens of Sri Lanka have been established on a balance of probabilities by your testimony and your passports contained in Exhibit 1.  

NEXUS 

[5]     I find that there is a link between what you fear and the Convention grounds of race and particular social groups of gender and family, and your claims are therefore assessed under Section 96.  

CREDIBILITY 

[6]     In terms of your general credibility, I found you to be credible witnesses and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim forms.  XXXX, your testimony was spontaneous, detailed, forthright, and materially consistent with your narrative.  You elaborated with additional details requested without apparent  hesitation.  It was quite evident that the issues I asked you to recall were emotionally painful.   

[7]     XXXX and XXXX, your testimony was also spontaneous and forthright.  I find that your husband and father was Tamil based on your testimony and your marriage certificate which indicates he is an Indian Tamil. I find that you are Sinhalese as indicated on your birth certificate which states that both your parents are Sinhalese.  This is in Exhibit 8.   

[8]     I find that your husband passed away on XXXX XXXX, 2019, as confirmed by the death certificate you submitted.  I accept that your husband was assaulted on multiple occasions.  You testified that he left Sri Lanka in XXXX 2011 to work in South Korea to escape persecution.  You testified about being cautious when you visited Sri Lanka due to the intolerance from society because of your interracial marriage.  You said you were not accepted in either Tamil or Sinhalese dominant areas.   

[9]     I find that you and your family were assaulted in XXXX 2018 because of marriage to a Tamil man.  I find that you were raped on XXXX XXXX, 2018, by a police officer likely related to your marriage to a Tamil man.  You testified that the officer in charge came to your home that day because your husband had filed a police complaint about the XXXX 2018 assault.  XXXX testified about an assault in XXXX 2018 and explained that the reason was because his father is Tamil.  I therefore find that your subjective fear is established by your credible testimony and supporting documents.  

OBJECTIVE BASIS 

[10]     Your fear of being deported to Sri Lanka in the present circumstances is a fear that is well-founded in the objective documents.  The Australian Department of Foreign Affairs and Trade report, DFAT, in 1.9 notes that violence against women is prevalent in Sri w and occurs throughout the country.   

[11]     Anecdotal evidence suggested victims of sexual violence are reluctant to report the matter to the police due to social stigma and out of fear they would be ostracized by their families and have difficulty marrying if the matter became widely known.  Also under reporting is based on inadequate legislation, limited access to justice, fear of reprisals, and low conviction rates.  Female headed households are vulnerable to poverty, gender-based violence, and sexual exploitation, and faced obstacles to accessing services and employment opportunities.  The social stigma of widowhood also reportedly impedes access to government and non-government services.   

[12]     The US Department of State report in 2.1 says that significant human rights abuses included lack of investigation of violence against women.  Police harass civilians with impunity.  The government took some steps to prosecute the perpetrators.  Police and judiciary responses to rape incidents and cases were inadequate and associated services were scarce nationwide.  Amnesty International writes about continued impunity plus sexual and gender-based violence despite repeated assurances by consecutive governments to tackle the issue.  This is in 2.2.   

[13]     A Response to Information Request says that under the Gotabaya presidency, a conservative attack on the rule of law and independence of the police and judiciary has been seen.  Civilian government functions have been militarized at an accelerating pace and some appointees have been accused of committing serious human rights violations.  This is in 4.22.   

[14]     A Response to Information Request in 13.1 states that just being Tamil does not attract persecution, although other sources state Tamils face discrimination along with other minorities.  Other sources describe Tamils as second-class citizens and the most underprivileged ethnic group in Sri Lanka.  A Freedom House report indicates that Tamils face systemic discrimination including in government, employment, university, education, and access to justice.  Mistreatment by police and security is also reported.   

[15]     Counsel also submitted country condition evidence which demonstrates Tamil Sinhalese marriages are contentious based on the long-standing hostility faced by Tamils.  Another articles writes that women are still treated as second class citizens as there is a high rate of gender-based violence even though motherhood has a revered place in the family, the statistics demonstrate that for Sri Lankan women, home is not a safe place.  Many do not see violence against women as a problem.  This is in Exhibit 8.   

STATE PROTECTION 

[16]     There is a presumption of state protection in the absence of complete breakdown.  The presumption may be rebutted with clear and convincing evidence.  Based on your personal circumstances as well as the objective country documentation, I find that you rebutted the presumption of state protection and adequate state protection is not available to you.   

[17]     Objective evidence demonstrates inadequate protection of women and continued impunity for gender-based violence.  There remains evidence of mistreatment including human rights abuses against Tamils.  Moreover, your husband sought protection from the police and adequate protection was not forthcoming to him. I am mindful of the risk you faced trying to seek police protection because of the evidence demonstrating police impunity for gender-based violence, and your personal experience with sexual assault perpetrated by a senior police officer.  

INTERNAL FLIGHT ALTERNATIVE OR IFA 

[18]     I’ve also considered whether a viable IFA exists for you.  There is a two-part test to determine if there is an IFA.  It must be safe and it must be reasonable.  It is safe if there is no serious possibility of persecution or risk to life or risk of cruel and unusual punishment or torture in the IFA.  It is reasonable if conditions in the IFA are not unduly harsh and do not jeopardize your life or safety.   

[19]     There is a very high threshold that must be met to show whether an IFA is unreasonable.  I proposed Colombo as a potential IFA location.  I find that the IFA tests fails on the second prong.  Accordingly it’s not necessary to consider the first prong as the test is conjunctive.  A Response to Information Request notes that it is very rare for single women to live alone in Sri Lanka.  Both Tamil and non-Tamil women living alone in Colombo are perceived as being promiscuous or of low moral value.   

[20]     Further, there are gender norms and cultural beliefs that stigmatize women from living alone in Sri Lanka including Colombo.  In addition, sexual harassment of women in Sri Lanka is widespread and a single woman living alone would be vulnerable.  Without a network of family and friends, widows and single women are seen as targets.  Housing is often procured through informal or (inaudible-8:03) networks and landlords do not like to rent to single men or women regardless of ethnicity.  Therefore I find that it would be objectively unreasonable for you to relocate to Colombo.   

[21]     XXXX, you testified you would not be safe as a woman alone which is further amplified as you are now a widow.  You fear the same issues you faced when you lived in Sri Lanka without your husband based on a patriarchal cultural.   

[22]     XXXX, you testified that you would not be safe without your father’s protection and because of the lack of acceptance based on your mixed ethnicity.  You said you would be unable to protection your mother and sister.   

[23]     XXXX, you similarly testified that you fear returning to Sri Lanka based on your gender and the experience of similarly situated persons including your mother.  I find that there is a serious possibility of persecution throughout Sri Lanka and therefore no Internal Flight Alternative is available to you.  

CONCLUSION 

[24]     Based on the totality of the evidence, I find you to be Convention refugees and I accept your claims.    

——— REASONS CONCLUDED ———