2023 RLLR 187

Citation: 2023 RLLR 187
Tribunal: Refugee Protection Division
Date of Decision: November 16, 2023
Panel: Suraj Balakrishnan
Counsel for the Claimant(s): Ian D Hamilton
Country: Sri Lanka
RPD Number: TC2-10778
Associated RPD Number(s): N/A
ATIP Number: A-2024-01010
ATIP Pages: N/A

 

DECISION

 

[1] MEMBER: This is the decision for XXXX XXXX XXXX XXXX XXXX’s claim for refugee protection. You are claiming to be a citizen of Sri Lanka and you are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I have considered all the evidence, including your testimony, Guideline 9 of the Immigration and Refugee Board, and the other evidence in the case and I am ready to render my decision orally. 

 

[2] I find that you are a Convention refugee because you face a serious possibility of persecution in Sri Lanka due to your sexual orientation for the following reasons. 

 

[3] The specifics of your claim are set out in the narrative of your Basis of Claim form. You allege the following. You are a citizen of Sri Lanka, and you fear persecution from authorities and society because of your sexual orientation as a gay man. You allege that if you return, you will be persecuted by authorities and society of Sri Lanka. You allege that there is no state protection for you or an internal flight alternative. 

 

[4] Your personal identity as a citizen of Sri Lanka has been established by your testimony and the supporting documents filed as exhibits, including copies of your passport. I find on a balance of probabilities that identity and country of reference has been established. I find that there is a link between the harms that you fear and the Convention ground of particular social group. This claim will, therefore, be assessed under section 96. 

 

[5] The test under section 96 is whether there is a serious possibility of persecution should you return to Sri Lanka, and I have found that you have met that test. When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary. The main credibility question at the hearing was whether you are genuinely a gay man. You have generally been consistent, credible, and forthright in your testimony. Your testimony was generally consistent with your Basis of Claim form and detailed. Your responses to matters not set forth in the Basis of Claim form were provided in a straightforward manner with spontaneous detail. 

 

[6] You provided testimony about how you came to the realization that you were gay when you were XXXX years old. You were asked about and provided testimony about three (3) of the same-sex relationships you entered into. You were able to provide many details about these relationships, including among other things, how you met them, when you met them, how the relationships developed over time, the dates you went on with them, what you found attractive about them, their favourite hobbies, and the steps you took to keep them a secret, as well as how these relationships came to an end. You also testified about your activities in Canada, namely becoming a member of and participating with the 519, an LGBTQ organization in Canada, as well as your experiences in Canada using Grindr, an LGBTQ dating application. 

 

[7] In terms of your general credibility, I have found you to be a credible witness on a balance of probabilities. You also provided corroborating documentation, including among other things, two (2) letters of support from Sri Lanka from your previous romantic partners, photos of yourself with some of your same-sex partners, screenshots of your chats on Grindr, and documentation from the 519. There is no reason for me to cast out the veracity of these documents and as such, I place good weight on these documents to support your allegations and claim. 

 

[8] Specifically, you established on a balance of probabilities that you are genuinely a gay man. While there is some documentary evidence indicating that attitudes towards sexual minorities are improving, overall, the objective evidence indicates that sexual minorities in Sri Lanka face persecution. The UK Home Office notes that same-sex sexual acts for both men and women are a criminal offence, even if they are consensual under section 365 and 365(a) of the Penal Code. It goes on to note that such activity can attract sentences of up to 10 years in prison and a fine. It also notes that the lack of legal interpretation allows for law enforcement to abuse their powers given to them by virtue of these laws to arrest, detain, or harass persons of the LGBTQ community by wilfully misrepresenting the laws and its intentions. 

 

[9] It further notes that anti-LGBT sentiment is deeply ingrained in Sri Lanka and society. It also states that LGB (sic) persons face stigma, discrimination, harassment, emotional and verbal abuse, and pressure and coercion into heterosexual marriage. Australia’s Department of Foreign Affairs (inaudible) LGBTI individuals in Sri Lanka face a moderate risk of official discrimination and a moderate level of social discrimination on a day-to-day basis. It further notes that no legislation exists to protect LGBTI individuals from discrimination or hate crimes. According to local sources, LGBTI individuals are widely seen as sexual deviants and routinely experience discrimination and bullying in the workplace, and the education and healthcare systems. 

 

[10] It also cites a study which found that 46.7 percent of LGBTI people in Sri Lanka had experienced police harassment. LGBTI victims of abuse and harassment, including by the police are generally unwilling to file complaints due to safety concerns and a reluctance to bring attention to their sexual orientation. Based on your testimony and the documentary cited above, I find that your fear of returning to Sri Lanka has an objective basis. You have a well-founded fear of persecution in Sri Lanka. 

 

[11] The documentary evidence cited above indicates that authorities are among the agents of prosecution as it relates to sexual minorities in Sri Lanka. You have also testified about trying to go to the police but not receiving any assistance. I, therefore, find that you have rebutted the presumption of state protection in Sri Lanka. 

 

[12] I considered whether a viable internal flight alternative exists for you. The agents of persecution includes Sri Lankan authorities. The documentary evidence cited above indicates that although large urban centres like Colombo are relatively better for sexual minorities, sexual minorities nevertheless face violence and violation of rights across Sri Lanka, particularly if they desire to live openly. I find there is a serious possibility of persecution for you throughout Sri Lanka, and I, therefore, find that you have no viable internal flight alternative.

 

[13] Based on the forgoing analysis and considering the totality of the evidence before me, I conclude that you are a Convention refugee because you face a serious possibility of persecution in Sri Lanka. I accept your claim. 

 

——— REASONS CONCLUDED ———