2023 RLLR 183

Citation: 2023 RLLR 183
Tribunal: Refugee Protection Division
Date of Decision: April 13, 2023
Panel: Abby Eshiokwu
Counsel for the Claimant(s): Ian Hamilton
Country: Sri Lanka
RPD Number: TC1-17224
Associated RPD Number(s): TCl-17228
ATIP Number: A-2024-01010
ATIP Pages: 000001-000009

DECISION

[1]       This is the decision in the refugee claims of principal claimant XXXX XXXX (hereafter “the principal claimant” or “PC”), and his spouse, XXXX XXXX (hereafter “the “the associate claimant” or “AC”) who claim to be citizens of Sri Lanka and are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“IRPA”).¹ These claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules.

ALLEGATIONS

[2]       The allegations are set out in the claimants’ Basis of Claim forms (BOC).² The associate claimant does not have a narrative of her own. Her allegations rely on the narrative of the principal claimant. To summarize, the principal claimant alleges that he fears persecution at the hands of the Sri Lankan army intelligence who have accused him of supporting the LTTE because he attended the XXXX XXXX event on multiple occasions. He was also accused of providing support to LTTE resurgence groups during the period that he worked in Qatar from 1993 to 2011.

[3]       The claimants said they cannot return to Sri Lanka because they fear the PC will be arrested and mistreated by the army based on the accusations levied against him.

DETERMINATION

[4]       I find that the PC is a Convention refugee under section 96 of the IRPA as he has established, on a balance of probabilities, a serious possibility of persecution at the hands of the Sri Lankan authorities due to his Tamil ethnicity. I also find that the AC is a Convention refugee under the same section of the IRPA as she has also established, on a balance of probabilities, a serious possibility of persecution at the hands of the Sri Lankan authorities if returned to Sri Lanka because of her familial relationship with the PC and because of her Tamil ethnicity.

ANALYSIS

Identity

[5]       The claimants’ personal identities as citizens of Sri Lanka have been established by their testimony and photocopies of their passports included in the CBSA/IRCC Claim Referral package found at Exhibit 1.³ The claimants’ Tamil ethnicity has been established by copies of their Sri Lankan birth certificates included in their personal disclosure package found at Exhibit

6.⁴ I find, on a balance of probabilities, that the claimants’ identities, Tamil ethnicity and country of reference have been established.

NEXUS

[6]       I find that the claimants’ alleged fear has a nexus to the Convention ground of race or ethnicity- Sri Lankan Tamil. I have therefore assessed the claims under section 96 of the IRPA.

Credibility

[7]       In assessing credibility, I am cognizant of the difficulties that claimants may face in establishing their refugee claim, specifically, social and cultural factors, the milieu of the virtual hearing environment, and the stress inherent in responding to questions through an interpreter.

[8]       I am also guided by the principles established in the Federal Court of Appeal’s decision of Maldonado.⁵The principle asserted in Maldonado is that “when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness.”

[9]       The PC provided most of the testimony during the hearing, but the AC also testified. Both claimants testified in a spontaneous, persuasive, and straightforward manner and there were no major inconsistencies in their testimony that were not reasonably explained. The claimants’ testimony was relevant and probative towards establishing the credibility of the PC’s allegations.

The PC ‘s core allegations were true, on a balance of probabilities

[10]     The PC was consistent in his testimony with respect to the encounters that he had with the Sri Lankan army, starting from his first arrest and interrogation in XX 2008 when he was accused of supporting LTTE resurgence while in Qatar. He then described how he first started attending the XXXX XXXX event from XX 2015 because, as a Tamil man, he also encountered oppression at the hands of the Sri Lankan authorities, and he felt he needed to support those who died or went missing during the civil war that started in 1983 and ended in May 2009.

[11]     After attending the XXXX XXXX event in XX 2018, army intelligence officers showed up at his house and showed him a photo of himself attending the event. He was taken to the army camp and questioned about why he attended the event. He was later released XXXX after he was warned not to engage in activities that are against Sinhalese people.

[12]     In XX 2019, the PC again attended the XXX XXXX event. On the following day, army intelligence officers went to his house and took him to their camp where he was again interrogated and accused of raising funds to support LTTE groups. He was released XXX after he was warned not to involve himself in any political activities in support of pro-LTTE groups.

[13]     While all these things were going on, the claimants’ daughter was already planning to invite them to Canada for a visit. The claimants’ super visa application was approved in XX

2019. The claimants arrived in Canada the following month. While still in Canada, they found out from their neighbours that army intelligence officials went to their house to look for them in XX 2021. The officials also went to the PC’s mother’s house in XX 2021 to ask about the PC’s whereabouts. The claimants then decided to make their refugee claim, fearing that the PC will continue to be harassed by the Sri Lankan authorities if they return to Sri Lanka.

[14]     I find that PC’s testimony with respect to his encounters with the army intelligence officers in Sri Lanka corresponded with, and further explained his BOC narrative. I also give full weight to the letter from the PC’s mother⁶ and the letter from the claimants’ daughter⁷ that the claimants submitted to support their core allegations.

[15]     Given that there are no serious credibility issues with respect to the claimants’ allegations, coupled with the documentary evidence named above, which are supported by the identity document belonging to each writer, I find, on a balance of probabilities, that the claimants’ subjective fear of persecution at the hands of the Sri Lankan authorities who have continued to target the PC because of his Tamil ethnicity is well founded.

OBJECTIVE BASIS

[16]     Objective evidence supports the claimants’ core allegations, that Sri Lankan Tamils are often subject to treatment that may amount to persecution because of their ethnicity. Several National Documentation Package (NDP)⁸ sources show that Tamils continue to suffer ethnic profiling. The documentary evidence shows that Tamils throughout the country, but especially in the North where the claimants are from, are regularly monitored and harassed by security forces.

[17]     The principal claimant was in fear for his life due to being targeted by the army because of his Tamil ethnicity. Torture and ill-treatment by the police and security forces remain commonplace in Sri Lanka, and such tactics are used to extract confessions. Tamils have been the victims of unwarranted attacks and the government has disregarded previous commitments to human rights and justice.⁹ There is evidence that the government continues to use the Prevention of Terrorism Act (PTA) to arrest Tamils.¹⁰ A human rights defender in the north reports that the government is using security and intelligence agencies to monitor and intimidate the families of abuse victims and others who are seeking to uphold human rights.¹¹ The United Nations Human Rights Commissioner has said that surveillance, intimidation and harassment of human rights defenders, journalists and families of the disappeared has broadened to a wider spectrum including students and others critical of government policies.¹²

[18]     I also considered other documents with respect to the general human rights conditions in Sri Lanka. The 2020 U.S. Department of State document on human rights in Sri Lanka reports that significant human rights issues include:

·      unlawful killings by the government

·      torture by government agents

·      arbitrary detention by government entities

·      police regularly harass civilians, often with impunity, although the government took steps to investigate and prosecute some officials who committed human rights abuses.

[19]     Furthermore, the claimants have claimed asylum in Canada. Hence, in all likelihood, they would fit into a risk profile, as in, “[I]ndividuals who are, or are perceived to be a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.”¹³

[20]     The NDP indicates that as a failed Tamil asylum seeker from Sri Lanka, there is a presumption of involvement in Tamil diaspora activities which is considered by the Sri Lankan government as being supportive of the LTTE, or that the claimants have family in diaspora who are supportive of the LTTE. The documents show that the government is afraid of the resurgence of the LTTE and monitors activities of the diaspora community. It is noted that the Sri Lankan state authorities have been monitoring Tamils and others suspected of being connected with a pro-LTTE or re-emerging LTTE in diaspora.¹⁴ Several documents in the NDP show that the Sri Lankan authorities are concerned with the risk of resurgence of the LTTE coming from the diaspora.

[21]     The Federal Court has recognized that “the fact of claiming refugee protection overseas, particularly in countries considered to have a huge Tamil diaspora like Canada, could itself form the basis for suspicion of having LTTE links, or lead to mistreatment.”¹⁵ I find that this applies to the claimants given that they are from the north, the PC was suspected of being involved with the LTTE, and both claimants would be returning to Sri Lanka as failed refugee claimants.

[22]     As such, I find that the claimants would face an increased risk of harm at the hands of the Sri Lankan authorities upon return.

[23]     Based on the totality of the evidence, I find that the conditions in Sri Lanka for persans in the claimants’ particular situation and circumstance have not changed since they left Sri Lanka. Therefore, I accept, on a balance of probabilities, that the claimants will continue to be subjected to persecution if they return to Sri Lanka.

[24]     In consideration of the totality of the documentary evidence and the claimants’ personal situation and circumstance, I find, on a balance of probabilities, that the claimants fall into a risk profile, cumulatively, of those who are being targeted by the Sri Lankan authorities and the pro­ government paramilitary groups. Based on the totality of the evidence submitted and adduced in this case, I find that there is an objective basis to the claimants’ subjective fear of persecution at the hands of the Sri Lankan authorities should they return to Sri Lanka.

State Protection is not Available

[25]     In this case, the agent of persecution is an arm of the Sri Lankan authorities, namely, the Sri Lankan army intelligence. I find that there will be no state protection available to the claimants in their particular situation and circumstance upon return to Sri Lanka. Internal Flight Alternative (IFA) is not Available

[26]     Since the state is in control of all of Sri Lanka, I find that it would not be safe for the claimants in their particular situation and circumstance to relocate to another part of the country. I therefore find that there is no viable internal flight alternative available to the claimants in Sri Lanka.

CONCLUSION

[27]     I have considered the claimants’ testimony, their personal situation, and the documentary evidence regarding the treatment of Tamils in Sri Lanka. I find that the PC has established that he would face a serious possibility of persecution on the Convention ground of race or ethnicity should he return to Sri Lanka. I therefore find the PC to be a Convention refugee pursuant to section 96 of the IRPA and I accept his claim.

[28]     I also find the AC to be a Convention refugee pursuant to the same section of the IRPA due to her Tamil ethnicity and her familial relationship with a Tamil man who has been labelled a pro-LTTE supporter, which would likely subject her to persecution at the hands of the Sri Lankan authorities should she return to Sri Lanka, and I accept her claim.

——— REASONS CONCLUDED ———

1 Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).

2 Exhibits 2.1, 2.2. Basis of Claim Forms – TCl-17224. TCl-17228.

3 Exhibit 1. Claim Referral Information Package – CBSA/IRCC.

4 Exhibit 6. Claimants’ Persona) Disclosure. ID documents.

5 Maldonado, Pedro Enrique Juarez v. MC./. (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 Exhibit 6. PC’s Mother’s witness statement and ID.

7 Exhibit 6. Letter from

8 Exhibit 3. National Documentation Package for Sri Lanka – May 31, 2022 Version.

9 Ibid., item 5.4: Situation and treatment of Tamils, including single Tamil women; ability ta relocate ta Colombo, including access to housing, education, employment, and health care; the method and ability of the government or paramilitaries ta track Tamils, including single Tamil women, upon relocating ta Colombo; impact of COVID-19 in Colombo (2020-April 2022), IRB, RIR, 2 May 2022, LKA200989.E, at p. 3

10 Ibid., at p. 4.

11 Exhibit 5. Country Conditions Disclosure.

12 Ibid.

13 Ibid.

14 Ibid.

15 Alexander v. Canada (Citizenship and Immigration), 2020 FC 313, at para. 10.