2023 RLLR 205

Citation: 2023 RLLR 205
Tribunal: Refugee Protection Division
Date of Decision: November 1, 2023
Panel: Olachi Nwachukwu
Counsel for the Claimant(s): Michael Korman
Country: Sri Lanka
RPD Number: TC3-31797
Associated RPD Number(s): N/A
ATIP Number: A-2024-01010
ATIP Pages: N/A

DECISION

[1] MEMBER: This is the decision for the claim of XXXX XXXX XXXX XXXX XXXX, who claims to be a citizen of Sri Lanka and is claiming refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act. The Panel has considered your testimony and other evidence in the case and is ready to render its decision orally. 

[2] In assessing your claim, the Panel has considered the Chairperson’s Guideline on refugee claimants involving sexual orientation, gender identity and expression, and Chairperson’s Guideline 4, gender considerations in proceedings before the Immigration and Refugee Board. 

[3] Your allegations are set out in your Basis of Claim form found in Exhibit 2 and further explained in your oral testimony. In summary, you are a XXXX-year-old Sinhalese female from XXXX in Sri Lanka and you fear persecution from the Sri Lankan authorities and society because of your sexual orientation as a lesbian. You fear you cannot live safely and freely as a lesbian if returned to Sri Lanka. 

[4] Your personal identity and nationality as a citizen of Sri Lanka have been established on a balance of probabilities. This has been established through your testimony and your Sri Lankan passport. The Panel also finds that your identity as Sinhalese has been established, on a balance of probabilities, by your oral testimony, which you responded in Sinhalese language, and your birth certificate. 

[5] The Panel finds that your alleged fear has a nexus to the Convention, namely the grounds of your membership in a particular social group, your sexual orientation as a lesbian. Therefore, your claim is assessed under section 96 of the IRPA. 

[6] In assessing credibility, the Panel is cognizant of the difficulties that you may face in establishing your refugee claim, specifically social and cultural factors, as well as the milieu of the virtual hearing environment, coupled with distress inherent in responding to questions through an interpreter. Furthermore, in assessing the credibility of the evidence that you have presented in support of your refugee claim, the Panel is guided by the principles established in the Federal Court of Appeals’ decision of Maldonado. The principle set out in Maldonado is that when the refugee claimants swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness.

[7] In general, the Panel finds you to be a credible witness and believe what you have alleged. There were no major inconsistencies in your testimony or contradictions between your testimony and other evidence before the Panel that were not reasonably explained. You answered all your questions — all questions with a sufficient level of detail and spontaneity. Your testimony was also consistent with information in you Basis of Claim form. 

[8] You told the Panel how you realized that you were sexually attracted to girls at the age of XXXX to XXXX years when you were in high school at a Buddhist convent school in XXXX XXXX You described how you were attracted to a female classmate but suppressed your feelings because of the societal attitude towards the LGBTQ community. You explained how you went through school without engaging in any romantic relationships. You described how your mother and siblings tried to marry you off after completing your secondary education, which was a tradition for most girls in your community. You stated that your family received many proposals of marriage on your behalf, but you rejected them all because you were not sexually attracted to men. You described how you continued to hide your sexuality from your family members for fear of the consequences that might follow. 

[9] You described how you had an opportunity to express your feelings in 2017 with a girl, XXXX XXXX XXXX XXXX (ph), who you met while travelling on an office transport from XXXX to Colombo when you started a job in Colombo. You described how you struck up a friendship with her and also realized that she was attracted to women and that you had a lot in common. You testified that on XXXX XXXX, 2018 you expressed your feelings towards her and bought her gifts and you became secret lovers. You described how both of you continued to keep your relationship a secret from your family members who thought you and XXXX were just friends and only spent time together during the time you were both travelling on the bus. You told the Panel that as the relationship developed, you and XXXX desired to spend more time together and you both started meeting up in hotel rooms in Colombo. 

[10] You stated that your problems started in Sri Lanka when you took your mobile phone for repairs in late XXXX 2021. You described how in early XXXX 2021, as you were working near a taxi park near your home, you were heckled by a driver who yelled out, ‘Hey, lesbian girl.’ You soon realized that your chats to XXXX would have been assessed during the phone repairs and you described how this heckling grew and how people from your area started to call you derogatory names associated with being a lesbian. 

[11] You described how on XXXX XXXX, 2021, while shopping with XXXX, you were both pelted with eggs and tomatoes by some men who shouted derogatory words for lesbians at you. You told the Panel how after the incident you finally revealed to your family members about your sexual orientation and your relationship with XXXX. You were visibly upset when you told the Panel about how your family received the news. You testified that your family did not take this revelation very well. 

[12] You described how in XXXX of 2022, you had to move away from your community to a relative’s home in XXXX for your safety. Your evidence is that you lost contact with XXXX and in XXXX 2022, you were forced to resign from your job by management when they learned about your sexual orientation. You applied for a visa to come to Canada and arrived in January 21st, 2023 and made your claim with the help of a representative. 

[13] You are currently in a relationship with your partner, XXXX (ph), who also fled Sri Lanka for her safety. You fear you cannot live safely as a lesbian woman if you were to return to Sri Lanka. 

[14] In support of your claim, you submitted a letter of support from your mother, a letter of support from your partner, XXXX XXXX XXXX XXXX (ph), a letter of support from your sister corroborating your allegations, a copy of a 519 Space for Change letter welcoming you to the LGBTQ community in Canada. You also provided a copy of the mobile phone repair to support what you have alleged and pictures of you and your current same sex partner. You also showed the Panel chats between you and your partner. The Panel finds the supporting documents to be credible and trustworthy and gives them weight. 

[15] In view of the above, the Panel finds that you have established, on a balance of probabilities, that you were harassed and intimidated in Sri Lanka because of your sexual orientation as a lesbian woman. Considering the totality of the evidence, the Panel finds that you have established a subjective fear of persecution should you return to Sri Lanka based on your sexual orientation as a lesbian woman.

[16] The Panel finds that based on the objective documentary evidence included in Exhibit 3 in the National Documentation Package, that your fear is generally well-founded. Your objective documentation also supports your allegation and the risk to you on return to Sri Lanka. The evidence shows the treatment meted out to the LGBTQ community in Sri Lanka. Item 6.3 of the NDP states 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. Those who are prosecuted under these sections face a term of imprisonment, which may extend to 10 years and also face a fine. Lack of legal interpretation means that the police can arrest and detain LGBTQ persons even if no sexual acts took place. The NDP went on to say that while other laws do not specifically relate to LGBTQ persons, they are sometimes arrested under the vagrancy ordinance, which gives the authorities the power to detain those who they consider to be loitering in public. 

[17] Item 2.4 of the NDP provided that the Penal Code prohibits carnal intercourse against the order of nature and any act of gross indecency. These provisions are widely understood to criminalize consensual same sex activity. Item 1.9. of the NDP states that Sri Lanka’s National Action Plan for the Protection and Promotion of Human Rights does not include sexual orientation and gender identity as a basis for protection against discrimination. An LGBTI advocacy group in its 2017 mapping study 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, meaning incidents go largely unreported. 

[18] Item 1.9 went on to say that, according to local sources, LGBTQ individuals are widely seen as sexual deviant and routinely experienced discrimination and bullying in the workplace and the education and healthcare system. Local sources told DFAT that openly gay couples face obstacles to securing housing and accommodation and as a result, many LGBTQ individuals seek to conceal their sexual orientation. Item 1.9 went on to see that lesbians face other difficulties in being open about their sexuality. Sources told DFAT that being a woman in Sri Lanka as a patriarchal society was challenging in itself and the challenge of being a lesbian was greater still. Lesbians are reportedly pressured by their families into heterosexual marriage and face harassment in public, including on public transport. 

[19] Based on your credible testimony and the documentary evidence, the Panel finds that your fear of returning to Sri Lanka has an objective basis. The Panel, therefore, finds that you have a well-founded fear of persecution in Sri Lanka.

[20] Based on your personal circumstances as well as the objective country documentation, the Panel concludes that it is objectively unreasonable for you to seek protection from the authorities in Sri Lanka. The authorities are the agent of persecution as your sexual orientation as a lesbian is a criminal offence in Sri Lanka. Therefore, you have rebutted the presumption of state protection in Sri Lanka. The Panel, therefore, finds that there is no adequate state protection available to you in Sri Lanka. 

[21] The objective documentary evidence, such as the Australian 2021 DFAT country information report, states that Sri Lankan security forces maintain effective control throughout the country and individuals are unlikely to relocate internally with anonymity. Based on the objective country documentation set out above, the Panel finds, on a balance of probabilities, that there would be a serious possibility of persecution based on your membership in a particular social group as a lesbian woman throughout Sri Lanka, and as such, there is no viable IFA. 

[22] Therefore, based on the totality of the evidence, the Panel finds that you would face a serious possibility of persecution throughout Lanka if you were to return there based on your sexual orientation as a lesbian, and therefore, the Panel finds that you are a Convention refugee and accepts your claim. 

[23] I wish you all the best. 

——— REASONS CONCLUDED ———