2023 RLLR 67
Citation: 2023 RLLR 67
Tribunal: Refugee Protection Division
Date of Decision: December 11, 2023
Panel: Luljeta Caraoshi
Counsel for the Claimant(s): Ian D. Hamilton
Country: Sri Lanka
RPD Number: TC2-14009
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
REASONS FOR DECISION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX (“the Claimant” ), who claims to be a citizen of Sri Lanka and is claiming refugee protection pursuant to sections 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “IRPA”).
[2] The panel considered and applied the Chairperson’s Guideline 4 on Gender Considerations in Proceedings before the Immigration and Refugee Board in refugee claims.[1]
ALLEGATIONS
[3] The claimant’s allegations are set out in her Basis of Claim (BOC) form submitted to the board.[2] In summary, the claimant alleges that she fears persecution at the hands of the Sri Lankan police and army due to her Tamil ethnicity and imputed political opinion.
DETERMINATION
[4] The panel finds that the claimant is a Convention refugee pursuant to section 96 of the IRPA.
ANALYSIS
Identity
[5] The panel finds that the identity of the claimant as a national of Sri Lanka is established, on a balance of probabilities, by her testimony and the copy of her passport in file. [3]
Nexus
[6] The claimant alleges that she fears harm at the hands of the authorities because of her ethnicity and because the police and the army consider her involved with LTTE. She also alleges that her risk of harm is exacerbated because she is a widow in Sri Lanka. Therefore, the panel finds that there is a link between what the claimant fears and the Convention ground of ethnicity as a Tamil from Sri Lanka, imputed political opinion and her membership in a particular social group, that of Tamil widowed women who have children in western countries. The panel, therefore, assessed her claim under section 96 of the IRPA.
Credibility
[7] When a claimant swears to the truth of certain allegations, this creates the presumption that those allegations are true, unless there are valid reasons to doubt the veracity of their allegations.[4] The presumption of truthfulness is rebuttable, and the claimant bears the burden of establishing the claim.[5] A determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.[6] The existence of contradictions, inconsistencies or omissions in the evidence can be a valid basis for negative credibility findings.[7] It is also open to a decision-maker to consider vagueness, evasiveness, and/or the implausibility of a claimant’s evidence based on common sense and rationality and having regard to all the surrounding circumstances.[8]
[8] In assessing the claimant’s credibility, the panel was mindful of the difficulties faced by the claimants in establishing their claims, including cultural factors, level of education and the inherent stress of the hearing process. The panel also took in consideration the Chairperson’s Guideline 4: ‘Gender Considerations in Proceedings before the Immigration and Refugee Board’.
[9] The claimant testified that she is afraid of the army and the police because they consider her a supporter of LTTE. She testified that she had to leave the country after army officers asked her about her daughters abroad and their links with LTTE. She also testified that the daughter of her brother was involved with LTTE which rendered her a suspect when she told the police officers that the daughter of her brother died during the civil war.
[10] According to her BOC and testimony, the claimant was stopped when she was returning from Vavuniya to Jaffna on XXXX XXXX, 2021. She testified that she told the army officers that she was at her sister’s place, but they accused her of going to Mullivaikal Remembrance Day. The claimant testified that after this incident, two army officers went to her house and accused her of being involved with the LTTE in diaspora, because of her daughters in Germany and Canada. The claimant testified that after they threatened her to send her to a detention camp, she talked with her daughter and her daughter in Canada and after receiving the visa, she came to Canada. The claimant testified that the army has inquired about her since she left the country.
[11] The panel notes that the claimant provided consistent information about the last incident which forced her to leave the country but was confused about the previous incidents she alleges in her BOC. She was consistent with her BOC narrative about the interrogation when she returned from Germany to Sri Lanka or that police officers went to her house after she returned from India. However, she was confused and changed her testimony when asked about the dates when the incidents happened and about the visits of police or army officers to her home after she returned from Germany and India.
[12] When the panel pointed out the discrepancies, the claimant explained that she was very confused and thought that she was being asked about the other incident, or that she forgot. While the panel still has credibility about her narrative regarding police visits before the incident of XXXX 2021, the panel notes that the claimant alleges that she left the country after they accused her of being involved with LTTE in XXXX 2021. She reiterated during the hearing what happened to her in XXXX 2021 and what led her to tell her daughters about the incidents.
[13] The panel also considered the profile of the claimant, a Tamil widow from Jaffna, in the northern part of Sri Lanka. The claimant provided corroborative evidence regarding her residence in Jaffna and her allegation that she is Tamil from the Northern part of Sri Lanka. The panel further notes that she alleges that she is considered as someone supporting the LTTE because of her daughters abroad but also because the daughter of her brother was a member of LTTE who died during the war. The panel further notes that the claimant has been in Canada for two years, a country with a large Tamil diaspora. She has been stopped and interrogated in the past when she returned from Germany in 2019 as a Tamil woman returning in the country.
[14] Therefore, while acknowledging that the claimant’s testimony was not perfect, considering overall her testimony and the documentary evidence submitted, and in particular considering her profile, the panel finds that the claimant established on the required standard of a balance of probabilities, that she fears harm should she return, due to her profile as a Tamil widowed woman with extended family members involved with LTTE in the past, with two daughters abroad, and who has been in Canada for two years.
Objective basis
[15] The allegations of the claimant are supported by the objective evidence. In general terms, the NDP sources indicate that Tamils remain second-class citizens, as it has been for decades and that harassment, mistreatment and human rights abuses have all continued relatively unabated.[9] The National Documentation Package further indicates that Tamils are detained and tortured on suspicion of supporting the LTTE.[10] According to the documentary evidence, the security forces regularly monitored and harassed community members, especially activists, journalists and former or suspected former LTTE members.[11] Other objective documentary evidence points out that “people connected to politically-sensitive war-related issues, such as missing persons, land release and memorial events, are most likely to be monitored.”[12]
[16] Other sources in NDP such as Freedom House Report indicate that the police and security forces are known to engage in “abusive practices… including extrajudicial executions, forced disappearances, custodial rape, and torture, all of which disproportionately impact Tamils.”[13] The National Documentation Package further informs that the police harass citizens and torture is an accepted use of force which is used by the police and that Tamils face discrimination.[14]
[17] With respect to women, the reports indicate that women face significant levels and gender-based persecution and discrimination in Sri Lanka and that Tamil women routinely face sexual and gender-based violence and live with multiple challenges that threaten their freedom, dignity, and security on a daily basis.[15]
[18] A report by the International Crisis Group states that Tamil speaking women in the north and east have arguably been more affected by the conflict and its aftermath than any other group in Sri Lanka. Tens of thousands of war widows and wives of the missing have been forced to become heads of household and primary income earners, in a patriarchal society, and are made insecure by the continued presence of the Sinhalese military. They suffered gender-based violence and abuse throughout the conflict and continue to suffer discrimination, sexual and gender-based violence, harassment, and abuse from within their own community and from the authorities, including at the hands of the military. These vulnerable groups of women do not feel safe in making complaints to authorities about discrimination, abuse, or violence against them and in most instances, it has been law enforcement agencies or decision-makers that have perpetrated this violence.[16]
[19] According to NDP sources female-headed household as vulnerable to societal discrimination, official harassment and exploitation, and authorities may continue to monitor those believed to have family links to the LTTE. [17] Another report indicates that the presence of the military and former LTTE controlled areas, such as the north, has heightened Tamil woman’s sense of insecurity and their vulnerability to gender-based violence at the hands of authorities.[18]
[20] Suspected sympathizers of Tamil rebel groups are still subject to arbitrary arrest. There is ample evidence of Tamils monitored abroad and are being suspected of having links to the LTTE, upon return to Sri Lanka. Even Tamils who have a low profile and are only connected through the LTTE in a historical association, have been targeted. Tamil returnees who have claimed refugee status abroad and return to Sri Lanka are sometimes interrogated and detained at the airport.[19]
[21] While the NDP does talk about some improvements under the previous government led by Sirisena, the elections of 2019 and 2020 resulted in Gotabaya Rajapaksa as president and his brother Mahinda Rajapaksa as prime minister. The panel notes that sources in the National Documentation Package inform that human rights deteriorated significantly since Rajapaksa was elected president, especially in Tamil areas.[20] The National Documentation Package also talks about the increased crackdown on Tamils during COVID-19. The government used the pandemic to further justify increased surveillance of Tamils in the north.
[22] The documentary evidence shows that the Sri Lankan authorities were concerned about the resurgence of the LTTE or any similar Tamil separatist organisation within Sri Lanka, and, as such, the revival of the civil war. Therefore, the Sri Lankan authorities have been actively engaged in rooting out the LTTE supporters and sympathizers. It is reported that, “the Tamils in the north and east “are under scrutiny in a way in which they were never before”.[21] The arrests of former LTTE combatants have also significantly increased through search operations.[22] The objective evidence also speaks about interrogation of Tamils returning from western countries.
[23] The panel notes that there were recent protests in Sri Lanka which have resulted in the Rajapaksas fleeing the country. However, there is no information before the panel to suggest that the police will no longer target Tamils.
[24] Given the country conditions and considering the claimant’s profile as a Tamil widow, her testimony and the objective documentary evidence, the panel finds that the claimant’s fear of returning to Sri Lanka has an objective basis and that she would continue to face a risk of persecution should she return to Sri Lanka. The panel therefore finds that the claimant has a well-founded fear of persecution in Sri Lanka.
State Protection
[25] States are presumed to be capable of protecting their own citizens, except in situations where the state is in a state of complete breakdown. A claimant is required to approach the state for protection if protection might reasonably be forthcoming or, alternatively, if it is objectively reasonable for the claimant to have sought protection. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability or unwillingness to protect its citizens.
[26] The panel finds on a balance of probabilities that adequate state protection would not be available to the claimant in Sri Lanka. In this case, the agents of persecution are the Sri Lankan authorities, namely the police and the army. When the agents of the state are themselves the sources of one’s persecution, the presumption of state protection may be rebutted without exhausting all avenues of recourse in the country.
[27] The NDP sources further indicate that women do not feel safe in making complaints to authorities about any discrimination, abuse, or violence against them. In most cases it has been law enforcement agencies that have perpetrated the violence.
[28] In light of the objective country documentation as well as the personal circumstances of the claimant, the panel finds that the claimant rebutted the presumption of state protection, and that adequate state protection would not be available to the claimant in Sri Lanka.
Internal Flight Alternative
[29] The panel also considered whether a viable internal flight alternative exists for the claimant. The claimant testified that she would not be able to relocate anywhere in Sri Lanka because the police will find her, and she will still suffer as a Tamil widow from Sri Lanka. She explained that the police will find her, because she must register with the authorities if she relocates. The claimant further stated that it would be very hard for her as a widow, to live alone, considering her age.
[30] The panel notes that the agent of persecution is the police and the army who have targeted her as a widow Tamil woman with children abroad and because of family members being involved with LTTE in the past. The documentary evidence regarding the persecution faced by Tamils is not restricted to any region, although it is most prevalent in the North and East of the country.
[31] Considering the above, the panel finds that there is a serious possibility of persecution for the claimant throughout Sri Lanka, therefore there is no viable internal flight alternative.
CONCLUSION
[32] Considering the totality of the evidence, the panel finds that the claimant is a Convention refugee on the basis of her Tamil ethnicity, imputed political opinion and membership in a particular social group, that of Sri Lankan Tamil widowed women.
[33] The panel therefore accepts her claim.
(signed) Luljeta Caraoshi
December 11, 2023
[1] Chairpersons Guideline 4 at https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx, effective on July 18, 2022 and amended on October 31, 2023.
[2] Exhibit 2.
[3] Exhibit 1.
[4] Maldonado v Canada (MEI), [1980] 2 FC 302 (CA) at 305.
[5] Gill v Canada (MCI), 2004 FC 1498 at para 25.
[6] Orelien v Canada (MEI), [1992] 1 FC 592 (CA); (1991), 15 Imm LR (2d) 1 (FCA).
[7] Dan-Ash v Canada (MEI), [1988] 93 NR 33 (FCA).
[8] Zheng v Canada (MCI), 2007 FC 673 at para 17, citing Aguebor v Canada (MEI), [1993] FCJ No 732 (FCA) (QL).
[9] Exhibit 3. Tab 13:1.
[10] Exhibit 3, Tab 1.5.
[11] Exhibit 3, Tab 13.1.
[12] Exhibit 3, Tab 13.1.
[13] Exhibit 3, Tab 2.3.
[14] Exhibit 3, Tab 2.4.
[15] Exhibit 3, Tab 4.1.
[16] Exhibit 3, Tab 5:10.
[17] Exhibit 3, Tab1.9.
[18] Exhibit 3, Tab. 5.9.
[19] Exhibit 3, Tab 4.1, 13.7 and 14.5.
[20] Exhibit 3, Tab 13.1.
[21] Exhibit 3, Tab 13.2.
[22] Exhibit 3, Tab 13.1.