2023 RLLR 186

Citation: 2023 RLLR 186
Tribunal: Refugee Protection Division
Date of Decision: March 31, 2023
Panel: Lusine Unanyan
Counsel for the Claimant(s): Namunakulan Ponnambalam
Country: Sri Lanka
RPD Number: TC1-16330
Associated RPD Number(s): N/A
ATIP Number: A-2024-01010
ATIP Pages: N/A

DECISION

[1] MEMBER: So, this is the decision of the Refugee Protection Division in the claim of Mr. XXXX XXXX. The claimant alleges to be a citizen of Sri Lanka and is claiming refugee protection, pursuant to section 96 and 97 of the Immigration and Refugee Protection Act. 

[2] The claimant’s allegations are set out in full, in his Basis of Claim form, narrative, and update provided at Exhibits 2 and 5, respectively. In short, he alleges fear of harm at the hands of the Sri Lankan authorities, due to be being falsely accused of involvement with, and supporting, the LTTE. Being detained and assaulted on multiple occasions. I find that the claimant is a convention refugee, as he  has established the serious possibility of persecution on the grounds of imputed political opinion.

Identity

[3] For the following reasons, I find that the claimant’s personal and national identity as a citizen of Sri Lanka is established, on a balance of probabilities. The claimant arrived in Canada without this passport. The claimant has submitted into evidence, a copy of a copy of his previous of passport, as well as copies of his national identity card and birth certificate. He testified that he has the original birth certificate and national identity card in his possession, but he did not have them at the hearing and he was not required to submit them after the hearing. The claimant was questioned extensively about his identity, his identity documents, and travel and journey to Bulgaria, France, and ultimately to Canada. At all times, his testimony was detailed and consistent.  I note that it was also consistent with the information he  provided in his interviews  with CBSA, and detailed in the officer’s interview notes submitted into evidence at Exhibit one (1). The claimant testified about how he obtained his Sri Lankan passport in 2015, that it was taken by the agent in Türkiye in 2016, after which he arrived in Bulgaria. His intention was to wait while the agent arranged onward travel, however, the claimant was arrested and detained by the authorities there. After being detained 60 months in a camp, he  was deported back to Sri Lanka. The claimant has provided a copy of the travel document used by the Bulgarian authorities to return him to Sri Lanka, and he testified about how this document was obtained by the Bulgarian authorities. I note that his identifying information on this document is consistent with the claimant’s identity documents, and the date on the document is consistent with his allegations. 

[4] After being deported back to Sri Lanka, the claimant obtained a passport in 2017. However, he testified that he did not take a copy of his passport and therefore the copy in evidence is of the passport that was valid prior to the one that he obtained in 2017. He used this new passport to travel out of Sri Lanka again in 2017. He transited through Morocco, where  his passport was, again, seized  by the agent and he was provided with a false Malaysian passport, which he used to enter France. He testified his intention was to reach Canada again, however the agent did not arrange for onward travel, and the claimant filed a refugee claim in France, which was ultimately rejected. The claimant has provided documents from this claim, and I note that his identity on the French claim documents, is  again consistent with the identity documents in evidence. Based on the totality of the evidence before me, which includes copies of the claimant’s identity documents, his travel document use for deportation from Bulgaria to Sri Lanka, his French claim documents, as well as he’s testimony at the two (2) hearings, I find that the claimant’s personal and national identity as a citizen of Sri Lanka has been established on a balance of probabilities. 

Nexus 

[5] I find that the claimant’s allegations have an Nexus to a Convention ground, of imputed political opinion, and as a supporter of the LTTE. His claim has therefore been assessed under section 96 of IRPA. 

Credibility 

[6] A refugee claimant’s sworn testimony is presumed truthful unless there are valid reasons to doubt the veracity of their allegations. I found that the claimant testified in a straightforward and fluid manner. He provided elaboration when asked. The evidence he provided was consistent with the allegations in his Basis Of Claim narrative and the other documents submitted into evidence. There were no material omissions, contradictions, or inconsistencies in his testimony and he provided further details when asked for clarification or elaboration. 

[7] The claimant alleges that the authorities have targeted his family, under suspicion of involvement with the LTTE. He explained he and his family have lived in the area that was formerly under the control of LTTE, and that his father was made to work for them. This led to false suspicion and allegations by the authorities. He alleged that his brother and father were targeted, and that his brother fled and claimed asylum in Australia, due to this in 2012. The claimant denied any involvement with the LTTE, either on his part or on the part of his father and brother. He alleges that he began to be targeted by the authorities after participating in a demonstration in 2015, that was in support of persons who were disappeared. He was detained by the army and held for three (3) days. The claimant provided a detailed description including contextual and other details about his experience of being detained. He was released after a bribe was paid to the authorities. He was assaulted and questioned again while detained by the army intelligence, several more times following the original event. Each time, LTTE links were imputed on him. The claimant fled Sri Lanka in XXXX 2016, and ended up in Bulgaria, as outlined above. He alleges that when he was deported from Bulgaria, and back to Sri Lanka in 2017, he was arrested at the airport and detained at the police station for four (4) days, during which he was a questioned about LTTE links. After he was released, he was arrested again from his home by the army Intelligence. Following these events, the claimant left the country again, this time ending up in France. He claimed refugee protection there. The claimant testified that his claim and appeal were rejected due to credibility issues. He explained there were contradictions found between his oral testimony and his documents. He alleges that his claim documents were completed with the assistance of a Tamil interpreter, and that the interpreter submitted incorrect information, which later led to contradictions at the time of his testimony. The claimant left France and came to Canada, as he feared being deported back Sri Lanka. 

[8] After journeying through several countries, he arrived in Canada and claimed refugee protection. He alleges that the authorities have continued to pursue him, and attended his parent’s home in XXXX 2022, to ask about his whereabouts. In support of his allegations, the claimant has provided letters from his mother, neighbourhood friends, and the content of these letters generally corroborates the claimant’s core allegations. I note not concerns on the face of these documents and I afford them full weight in the support of his allegations. I Note that the claimant disclosed the decisions from his refugee claim and appeal in France. These documents were in French, the translation from French into English was completed but not available until after the first sitting on this claim. As I familiarize myself with the contents of these documents, I noted contradictions in the claimant’s allegations between the allegations in the French claim, and the claim before me. The contradictions were material, as they had to do with the length of time the  claimant allegedly spent in detention in 2017. As well as allegations that his brother fought with the LTTE, which was different than what the claimant has alleged in the claim before me. 

[9] The second sitting was held today to put these inconsistencies to the claimant. The claimant’s testimony is that the evidence he provided in the claim before me, is correct and that the conflicting information from the French claim, is borne out of erroneous information provided by the interpreter, as he initially alleged. I note that I find the conflicting information quite specific, for instance it states the claimant’s  brother joined the Tigers Intelligence Services. It correctly states that fearing arrest, his brother Sri Lanka in 2012, and claimed asylum in Australia. It also correctly states the claimant’s paternal uncle fought with the LTTE around the nineties, which the claimant testified is correct. Given the level of detail regarding some of the allegedly erroneous allegations, as well as the fact that they were interwoven with admittedly correct information, on the whole, I  find the claimant’s explanation that the interpreter recording erroneous information to be questionable. However, when I weigh this concern against the rest of the claimant’s evidence, which I have found to be credible, I find that it is insufficient to be fatal to the claim. Having assessed the entire record, I find that the evidence is sufficiently establishes on a balance of probabilities, the claimant’s core allegations of having been targeted, detained, mistreated by the Sri Lankan authorities. Accordingly I find that he has established a subjective fear of persecution in Sri Lanka.

Well-Founded Fear of Persecution 

[10] I find that the claimant’s subjective fears objectively supported by the country conditions evidence about Sri Lanka, found in the National Documentation Package. The objective evidence at NDP Items 13.1 and 13.7, indicates that Tamils with real or imputed links to the LTTE are monitored, and harassed, by the government authorities, and that there is a heavy military presence in Tamil majority areas of the country, such as the East and the North of the country, such as where the claimant is from. Australia’s Department of Foreign Trade Affairs at 13.1 reports that some Tamils with imputed LTTE links, continue to report police monitoring and harassment. 13.7 reports on accounts of people suspected to be part of LTTE, that they are monitored and visited by the authorities, and security forces in the years following being released from detainment. A reported at NDP Item 2.14 also confirms that Tamils were prevented from memorializing  those who were killed during the last stages of the armed conflict, with the police and military disrupting many events. Multiple sources cited in the report at Item 13.1 indicate that there are particular groups who become subjects of monitoring and surveillance namely, during this Tamil war remembrance events, organizers and participants, government critics, human rights activists and others connected to politically sensitive war related issues. These groups are targeted by way of surveillance, detainment, and arrest. 

[11] Item 14.7 of the NDP further states that the Sri Lankan government regularly denounces Tamil Diaspora organizations as fronts for the LTTE and perceives activities by members of the Diaspora as a primary threat to territorial integrity and national security. It is noted that the authorities conflate advocating for Tamil issues with LTTE resurgence, and Tamil separatism. The report provides that in recent years, the Sri Lankan government has been mapping the extended family networks of Tamils, and employing a concerted surveillance effort both within and outside of Sri Lanka, with surveillance activities that included infiltration, informants, and other forms of surveillance. Intelligence gathered abroad is sent the Ministry for Foreign Affairs and to relevant intelligence agencies, including the Terrorism Investigation Division. The same report at 14.7 states that returnees and failed asylum seekers who are suspected of being connected to the LTTE, may be questioned and sometimes detained, tortured, and extorted, and this is particularly true for those who are Tamil and from the North and East of the country. These individuals may face further monitoring including visits by the authorities. Based on the totality of the objective evidence, I find that the claimant’s subjective fear is objectively well-founded. 

State Protection and Internal Flight Alternative

[12] The Sri Lankan authorities are the agents of persecution in this case. I therefore find that it would be objectively unreasonable for the claimant to seek protection of the state, in light of his particular circumstances. Accordingly, I find that the presumption of state protection has been rebutted. Given the evidence before me, and that the Sri Lankan state is the agent of persecution, as well as the objective evidence regarding the treatment of individuals with imputed LTTE links returning to Sri Lanka, I find that there is no viable internal flight alternative available to the claimant in Sri Lanka. 

[13] So, having considered all of the evidence, I find that the claimant is a Convention Refugee, pursuant to section 96 of IRPA, and I accept his claim. 

——— REASONS CONCLUDED ———