2023 RLLR 248

Citation: 2023 RLLR 248
Tribunal: Refugee Protection Division
Date of Decision: November 17, 2023
Panel: Ayodele Adeyemo
Counsel for the Claimant(s): John W Grice
Country: Sri Lanka
RPD Number: TC3-26171
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A

DECISION 

[1] MEMBER: This is the reason for the decision in the claim for refugee protection of Mr. XXXX XXXX XXXX XXXX XXXX. And the final number is TC3-26171. 

[2] You claim to be a citizen of Sri Lanka and claiming refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act. 

[3] Your allegations. In summary, you allege a fear of persecution at the hands of the Sri Lankan government, the army, the police, and other security agencies due to have been identified as Tamil males, Muslims, and specifically for your participation in a mass protest against the government of Sri Lanka had on XXXX XXXX, 2022, for the government economic failure of poverty in the country. You allege that you were first arrested and detained with three (3) other people during the protest and released on bail. You allege that after a new government came on board because of the protest, the government ordered re-arresting those who participated in the protest, including you. You allege that you are arrested by some four (4) army men and taken to army camp meeting where you were detained, beaten, and tortured for XXXX XXXX XXXX XXXX XXXX. You allege that you are threatened to be charged under the Prevention of Terrorism Act for being anti-government and for having connections with the anti-government group in Sri Lanka and internationally. You allege — afraid of being charged of terrorism act, you fled to Canada to seek protection. 

DETERMINATION

[4] I find that you are a Convention refugee under section 96 of the Immigration and Refugee Protection Act on the intersecting Convention grounds of your race or nationality as Tamil male, being a Muslim, your actual or imputed political opinion for facilitating the mass peaceful protest along with others to demonstrate your displeasure on the government’s academic failure. 

Identity 

[5] Regarding identity, I find on a balance of probabilities that you have established your personal identity as a Tamil in Sri Lanka and nationality as a citizen of Sri Lanka by copies of your documents at Exhibit 7. For you, this include the copies of bio pages of your passport, the original passport been with the Border Service, original being with the Border officers as via Exhibit 1, letter of seizure and register of birth.

Nexus 

[6] I find on a balance of probabilities that you fear — your fear is linked to the Convention grounds of your race or nationality as Tamil man, your actual and imputed political opinion as perceived supporters of the anti-government faction for being anti-government, for having connection with anti-government group in Sri Lanka internationally, the Liberation Tigers of Tamil Eelam, known as LTTE. Therefore, your claim is assessed under section 96 of the Immigration and Refugee Protection Act. 

Credibility 

[7] With regards to credibility, your testimony was significantly consistent with your Basis of Claim narrative and other documents on file, and I find you have established the core element of your claims on a balance of probabilities. You testified that you are a Tamil male, apart from your ability to speak another Tamil language. In support of your claim, you presented Exhibit 7, pages 3 to 4, which are the register of birth issued by the government, containing your father’s name, your name, and your race. The document contain the family details, your parents’ name, address, occupation (inaudible). All the document and interpreted government issued document signed by presumed authority — signed by presumed authorized person. I have no reason to doubt this document and their probative value in establishing your claim as Tamil man. I give full weight to this document. I believe your testimony that you are a Tamil male, apart from you speaking a language, were also based on the documentary evidence of Exhibit 7. I, therefore, find on a balance of probability that you have established your identity as a Tamil male from Sri Lanka.

[8] Specifically, regarding your arrest and detention, you testified that you participated alongside with your friends, NT and SJ, in a mass protest against the government of Sri Lanka as Tamils on XXXX XXXX 2022. You testified that while you were peacefully protesting, the army were also present, possibly to disperse people from the protest. You testified that after a few minutes, a group of policemen and army came, arrested, and assaulted you. You testified that you were taken to the police station and was detained. You testified that after the police took your details and released you XXXX XXXX XXXX after, issued a stern warning not to participate in any protests. 

[9] You presented a letter from your father, Exhibit 7, pages 34 to 37, and photographs supposedly taken at a rally van in support of your claim. Exhibit 7, 32 to 34. I assign full weight letter from your father. The letter is an interpreted version from a — from Tamil to English. It describes and narrates your ordeal with police and army. I believe the statement in the letter because the author is talking about what he experienced regarding your ordeal with the police, and you have testified that your father actively help in looking for you while you were in police custody and have in securing your release from both the police and the army. I have no reason to doubt its authenticity. 

[10] For the photographs, I assign a low weight to them as it is difficult to ascertain or identify specifically individual in the photographs. However, I find your testimony to be credible based on your detailed response and the exhibit and find on a balance of probabilities that you participated in a protest of XXXX XXXX 2022 that led to your arrest and detention. You also testified that you are arrested, detained, and assaulted on XXXX XXXX 2022 on the general order of the new government in Sri Lanka. You were arrested in your home by army men and whisked away to a military camp. You testified that you were questioned about your link with anti-government group in Sri Lanka and internationally. You testified that you were assaulted and called derogatory names on account of your religion as Muslim and raised as Tamil. You also testified that you were assaulted and threatened to be put in jail for life for opposing the government. you testified that the army said to you that it is the Tamils and Muslim that are problem in Sri Lanka, and you are to leave the country. 

[11] In support of your testimony, you submitted Exhibit 7, Exhibit 7, pages 34 and 37, a letter from your father. Having weighed in the preceding paragraph, this with other evidence, your testimony and document, I believe your testimony to be credible, and I find on a balance of probability that you were arrested, detained, and tortured on the alleged date on the grounds of your political opinion by expressing your displeasure like many other people by participating in protests against the government. Regarding your arrest and detention. Again, you were able to give details in a spontaneous manner and your testimony on the accusation that was alleged against you, including the allegation of being — having connection with the anti-government groups presumed to be LTTE. Your testimony did correspond with your narrative regarding your experience in the hand of the Sri Lanka army and police. You testified that you were harassed, needlessly interrogated, and questioned by the Sri Lanka army because of your protest against government and imputed link to anti-government group and because of your race as Tamil. 

[12] I believe your testimony because I find your response to this spontaneous, detailed, and consistent with your Basis of Claim regarding the allegation. I, therefore, find on a balance of probability that you have been alleged and imputed a link with the anti-government group presumed to be LTTE, are likely to be charged with terrorism under the Prevention of Terrorism Act. I considered that a forward-looking risk for you in Sri Lanka. When asked if you are to go back to Sri Lanka, what will happen to you? You testified that you will be arrested and detained, are likely forced charged under the Prevention of Terrorism Act levied against you. 

[13] As Exhibit 7, your father’s letter (inaudible) in assessing the earlier paragraph stated that the army are still looking for you, that two (2) men visited his home and introduced themselves as army intelligence. This corroborates your testimony regarding the fact that the army is still looking for you. I believe your testimony to be credible based on your testimony of the same exhibit and I find on a balance of probabilities that you will face a risk of persecution based on your evidence adduced if returned to Sri Lanka. This, along with your detailed and credible testimony, establishes on a balance of probability that you have been detained on numerous occasions by Sri Lankan authorities and accused of having links to government opposition group, the LTTE, because of your race and Tamil male. 

[14] Consequently, I find on a balance of probability that you have established the core element of your claim, namely that you are a Tamil male — because of your race as Tamil. In Sri Lanka, army have imputed into you membership and association with Tamil individual from LTTE, which is considered as an anti-government group by the Sri Lankan government, that you have been harassed, needlessly questioned, and tortured, and detained by Sri Lanka authorities (inaudible) on multiple occasions and alleged possibility of having linked to anti-government groups, including LTTE, and that Sri Lanka authorities have continued to seek you out after you fled Sri Lanka. As a result, established your subjective fear on a balance of probability. 

[15] Also, with your credible testimony describing your fear of Sri Lanka authority, I find your subjective fear has been established on a balance of probabilities.

Objective Basis 

[16] Regarding the well-foundedness of your claim and the objective basis in documentary evidence of the National Documentation Package for Sri Lanka, Exhibit 3 Item 3.8, support the claim that security forces regularly monitor and harass members of the Tamil community, especially those of having any form of LTTE connection like you are alleged. The same source, Item 3.4.3 that the Sri Lankan government does not believe the LTTE has been completely suppressed. This leads to the belief that any activities such as protesting as you did will revive the LTTE. Consequently, the government continues to use the Prevention of Terrorism Act to arrest Tamils, or any alleged LTTE supportive behaviour as you have been threatened at the army camp. 

[17] Item 2.1 of the objective evidence of National Documentation Package Exhibit 3, the United States Department of State report for Sri Lanka report the prevalence of significant abuses in the country, including unlawful killings, torture, and arbitrary detention by government agents. International organization have alleged torture by Sri Lanka military and the police forces involving people with imputed links or anti-government activities and LTTE as you are. The Human Rights Commission also report of torture by the police to (inaudible). The report state that the Prevention of Terrorism Act permits authorities to enter homes and monitor communication without judicial or other authorization. The evidence also support your fear that you could be detained again on your return to Sri Lanka as you have already been detained on several occasions in the past. 

[18] Item 1.9 of the same source report that many Tamil man reports been monitored, harassed, and arrested by police and security forces. There is also evidence in Item 13.1 of the NDP that Tamils continue to face discrimination in Sri Lanka and that they remain second class citizen. The objective evidence of National Documentation Package Exhibit 3 Item 14.1 indicate that those who return to Sri Lanka with a temporary travel document will often be detained, interrogated, and thoroughly checked by the Sri Lankan authorities upon arrival at the airport. Again, temporary documents suggest that individual depart the country illegally. And the objective evidence also indicate that anyone returning from abroad after failing to obtain asylum, which will be the case in your case, could be questioned harshly as Sri Lanka authorities monitor members of the Tamil diaspora returning to the country. 

[19] In addition to being marginalized, Tamils are excluded from national government policy, and government continues to use the Prevention of Terrorism Act to arrest Tamils as seen in Item 5.4 of the source. The Prevention of Terrorism Act has been linked to cases of police and security forces engaging in extrajudicial executions and forced disappearances and torture, all of which disproportionately affect Tamils are seen in Item 9.11. Therefore, based on the evidence provided by you with respect to your background as Tamil man, your imputed anti-government and LTTE links, and the detention you suffered, and continued effort to locate you by Sri Lanka authorities, I find that your fear of persecution as an objective basis, based on the evidence I have just discussed. Therefore, I find on the balance of probabilities that you have established a well-founded fear of persecution based on your imputed political opinion as suspected supporter of anti-government forces, LTTE, and your race as Tamil.

State Protection

[20] I must also consider whether state protection is available to you in Sri Lanka. In your case, the agent of persecution are the state, the army, and the police who arrested you and detained you. You started that after you left Sri Lanka to Canada, some army officer came to look for you from your father regarding the alleged participation. You also testified that the army is still looking for you to be arrested. Therefore, I find it would be objectively unreasonable for you to seek the protection of the state in your circumstances. And you have, therefore, rebutted the presumption of state protection on a clear and convincing evidence in that regard. I equally find on a balance of probability that there is no adequate protection available for you at operational level in Sri Lanka. 

Internal Flight Alternative

[21] With regard to internal flight alternative, again in your case, Trincomalee and Welimada was suggested at the beginning of the hearing. First, I know that Sri Lanka is a small country with over 25,000 square metres. Sri Lanka has national police, and the state is the agent of persecution in this case with control over the entire country. The objective evidence of National Documentation Package Item 5.15 indicates that individuals in the country cannot relocate anonymously within the country, passing through the checks of the authorities. 

[22] You, being sought by security agencies linked with the LTTE, the objective evidence shows that individuals in your (inaudible) are easily targeted and persecuted everywhere in the country by the police and other security agencies who have presence everywhere in the country. Consequently, I find on a balance of probabilities that there is a serious possibility of persecution throughout not only in the identified internal flight alternative, but throughout Sri Lanka for the reasons stated above. Therefore, a viable internal flight alternative does not exist for you in Sri Lanka. 

[23] According to the objective evidence, the state has a strong aversion for anyone who has a link with LTTE, and because of that, you will remain at risk of persecution everywhere in Sri Lanka as a result, regardless of your profile. 

CONCLUSION 

[24] Having considered the totality of evidence, I find that there is a serious possibility that you will face persecution everywhere in Sri Lanka based on your race or nationality as Tamil male, and your imputed political opinion. I, therefore, conclude that you are a Convention refugee persecution to section 96 of the Immigration and Refugee Protection Act, and I, therefore, accept your claim. 

——— REASONS CONCLUDED ———