2023 RLLR 220

Citation: 2023 RLLR 220
Tribunal: Refugee Protection Division
Date of Decision: December 5, 2023
Panel: Olachi Nwachukwu
Counsel for the Claimant(s): Myriam Harbec
Country: Sri Lanka
RPD Number: TC3-45377
Associated RPD Number(s): N/A
ATIP Number: A-2024-01133
ATIP Pages: N/A

DECISION 

[1] MEMBER:  This is a decision for the claim of XXXX XXXX, who claims to be a citizen of Sri Lanka, and he’s claiming refugee protection (inaudible). 

[2] The Panel has conceded your testimony and the other evidence in the case and is ready to render its decision orally.

[3] Your allegations are set out in your Basis of Claim form found in Exhibit 2 and further explained in your oral testimony and in your amendment found in Exhibit 4.

[4] In summary, you are a Tamil male from Jaffna in the north of Sri Lanka. And you fear persecution from the Sri Lankan authorities because of your ethnicity as a Tamil from northern Sri Lanka and your imputed political opinion based on your perceived support and involvement with the Liberation Tigers of Tamil Eelam or the LTTE as it is known. You fear being arrested and harmed if returned to Sri Lanka. 

[5] 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 included at Exhibit 1. The Panel also finds that your identity as Tamil has been established on a balance of probabilities by your oral testimony, which you responded in Tamil language and by your birth certificate included in Exhibit 4.

[6] The Panel finds that your alleged fear has a nexus to the Convention, namely the grounds of your Tamil ethnicity and your imputed political opinion. Therefore, your claim is assessed under section 96 of the IRPA. 

[7] In general, the Panel finds you to be a credible witness and believes 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 questions with a sufficient level of detail. Your testimony was also consistent with information included in the port of entry notes. 

[8] You told the Panel how your problems started in Sri Lanka in 2010 after you were detained by the army at their camp. Interrogated, beaten, and accused of being an LTTE supporter. You described how you went to live in your wife’s village in XXXX and started working in your father’s farm in XXXX in 2011.

[9] You described how you employed two (2) of your friends, XXXX and XXXX, to help in the farm. Your evidence is that on XXXX XXXX, 2021, alongside your two (2) friends XXXX and XXXX, you went to watch a demonstration and protest held by Tamils and Muslims from the north and east of Sri Lanka named XXXX to XXXX, which was a protest to raise awareness on the mistreatment of the Muslims and Tamil communities in Sri Lanka. 

[10] You described how, at the venue of the demonstrations, your two (2) friends were given special headbands designed for the procession at the event. You described how army personnels were in attendance recording the participants at the event and attempted to disperse the procession by throwing stones and sharp objects at the demonstrators. You told the Panel how you and your two (2) friends helped in moving the objects thrown at the demonstrators by the army. 

[11] You described how on XXXX XXXX XXXX 2021, you were beaten at your farm by three (3) army personnels when you protested the arrest of your friend and employee XXXX, who they accused of terrorism. 

[12] You told the Panel that in XXXX of 2021, you were again visited at the farm by the army and questioned on the whereabouts of your second friend and employee XXXX (ph), who they accused of being involved in terrorism. You described how you told them that he was absent from work and how you were advised to inform the army when he returns. 

[13] Your evidence is that you advised your friend to go into hiding, and on XXXX XXXX, 2021, you were arrested at your farm and accused of helping your friend XXXX evade arrest. You described how you were taken to their army camp and detained until XXXX XXXX, 2021. You said you were assaulted when you were in their custody.

[14] You told the Panel how you were shown a picture image of you and your friends taken at the demonstration event and accused of being involved with the LTTE and in terrorism. You stated that you were released after your father-in-law paid a XXXX XXXX XXXX rupees bribe. 

[15] You told the Panel how you were again arrested by the army in XXXX of 2022 and accused of harbouring your friend XXXX, who had escaped from their custody. You described how you were detained and assaulted while in their custody and released when your father-in-law paid a XXXX XXXX rupee bribe. 

[16] You told the Panel that on XXXX XXXX, 2022, you fled your home in XXXX and went into hiding in Colombo when you were informed that the army went to your farm on XXXX XXXX, 2022, to look for you. You described how you stayed in hiding in Colombo until you were able to leave the country in XXXX XXXX, 2022, with the help of an agent. 

[17] Your evidence is that the army have continued to look for you at your farm and at your residence in XXXX. They have come to look for you on three (3) occasions, in XXXX, XXXX, and XXXX of 2023, at your home and at your farm in XXXX of 2023. 

[18] In support of your claim, you submitted a letter of support from your wife in Sri Lanka, corroborating your allegation. This can be seen in Exhibit 4.

[19] The panel asked you why you did not obtain a letter of support from your friend XXXX (ph) and Nazim. You told the Panel that you are no longer in contact with them. The Panel accepts your explanation as reasonable and do not make any negative credibility inference based on that. The Panel do not have reason to doubt the authenticity of the document provided and finds the supporting documents to be credible and trustworthy and gives it weight. 

[20] In view of the above, the Panel finds that you have established on a balance of probabilities that you were taken and detained by Sri Lankan authorities and was interrogated by the authorities, subjected to mistreatment as suspected of having connections with the LTTE. 

[21] The objective documentation also supports the allegation and the risk to you on return to Sri Lanka. Considering the totality of the evidence, the Panel finds that you have established a subjective fear of persecution. 

[22] The objective documentation also supports your allegation and the risk to you on return to Sri Lanka. The evidence shows in Exhibit 3 the ongoing abuses against the Tamil population in Sri Lanka. Sources indicate that impunity for such abuses against Tamils persists. And that many people allege to have committed serious crimes against Tamils are now in government positions. And this can be found in Item 13.1.

[23] Similarly, at Item 2.3 of the NDP, it states that shortly after becoming president, President Ranil Wickremesinghe suppressed demonstrations and used the notorious Prevention of Terrorism Act to detain student activist. He has even warned that he will again declared a state of emergency and deploy security forces in the event of major protests. 

[24] Item 1.9 of the NDP states that members of the Tamil community and NGOs reports that authorities continue to monitor public gatherings and protests in the north and east and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically sensitive issues, including those related to the war, such as missing persons, land release and memorialization events.

[25] Communities in the north and east report that monitoring is undertaken by military intelligence and Police Criminal Investigation Department, though in many cases, officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. This corroborates your allegation.

[26] Item 13.1 of the NDP states that – sources report that military presence in the north is significant or very large and imposing. The Adjunct Assistant Professor indicated that the army is disproportionately present in Tamil-majority areas and monitors Tamils’ activities.

[27] The same source in the NDP states that Tamils remain second-class citizens, as it has been for decades and that since the end of the war, while Tamils are not dying on battlefields, harassment, mistreatment, and human rights abuses have all continued relatively unabated (sic). 

[28] Item 13.1 went on to say that Freedom House reports that abusive practices by the police and security forces, including extrajudicial executions, forced disappearances, custodial rape, and torture, disproportionately impact Tamils.

[29] Item 1.9 states that some Tamils with actual or imputed LTTE links, including those who fought for the LTTE or were part of its civilian administration, continue to report police monitoring and harassment. 

[30] On treatment of returnees to Sri Lanka, Item 14.6 states that returnees are systematically questioned upon arrival at Colombo Airport by the Department of Immigration and Emigration, followed by the SIS and the CID. The same source indicates that the length of interrogations vary between a few hours to several days. The returnees may be visited by the police at their residence at a later time after the interrogation.

[31] 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. 

[32] 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 and the agent of persecution, as you have been detained by them on two occasion – on three (3) occasions rather and accused of anti-government activities, therefore the Panel finds that there is no adequate state protection available for you in Sri Lanka.

[33] The objective documentary evidence, such as the Australian 2021 DFAT Country Information Report in Item 1.9 of the NDP, states that Sri Lankan security forces maintain effective control throughout the country, and individuals are unlikely to relocate internally with anonymity.

[34] According to the sources, Sri Lankan police have been registering the details of occupants of households across Colombo with at least some forms also asking the ethnicity and religion of any occupant. 

[35] Based on the objective country documentation set out above, the Panel finds on a balance of probability that there would be a serious possibility of persecution based on your imputed political opinion throughout Sri Lanka. As such, there is no viable IFA. 

[36] Therefore, based on the totality of the evidence, the Panel finds that you would face a serious possibility of persecution throughout Sri Lanka if you were to return there based on your Tamil ethnicity and your imputed political opinion. And therefore, the Panel finds that you are a Convention refugee and accepts your claim.  

——— REASONS CONCLUDED ———