2024 RLLR 28
Citation: 2024 RLLR 28
Tribunal: Refugee Protection Division
Date of Decision: April 18, 2024
Panel: K. Bainbridge
Counsel for the Claimant(s): Prasanna Deshapriya Pathiraja Waduge
Country: Sri Lanka
RPD Number: TC2-02177
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A
DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX who is a citizen of Sri Lanka and is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1
ALLEGATIONS
[2] The specifics of the claim are set out in the principal claimant’ s Basis of Claim (BOC) form.2 The following is a summary of the allegations.
[3] The claimant alleges that he cannot return to Sri Lanka because he has been accused of harboring an Islamist terrorist by Sri Lankan police due to his association with his tenant. The claimant has been perceived by authorities in Sri Lanka as being involved in terrorist activities due to XXXX XXXX.
DETERMINATION
[4] The panel finds that the claimant is a Convention refugee as he faces a serious possibility of persecution in Sri Lanka for the reasons that follow.
ANALYSIS
Identity
[5] The panel finds that the claimant has established his personal and national identity, on a balance of probabilities, as a citizen of Sri Lanka by his testimony and his passport.3 The panel
notes that the claimant changed his name from, XXXX XXXX XXXX, to XXXX XXXX XXXX however, his passport is under his original name. The claimant provided documents to demonstrate the name change and explained that he changed his name because his previous surname belongs to a lower caste which caused him a lot of hardship, he changed it in order for his children to legally have his new name. The claimant further explained that the documents that pertain to his qualifications, certificates, and documents used for his work: XXXX XXXX4, namely his travel documents5, are in his original name, but he does not use his original name inside the country of Sri Lanka. While in Sri Lanka, his identity documents reflect his new name, such as his birth certificate and national ID card.6
[6] The panel accepts the claimant’s explanation for the name change and the accompanying documents which demonstrate the change within Sri Lanka and the use of his old name when dealing with documents that are used for his work as a seaman and the international travel documents required due for that work.
Nexus
[7] The panel finds that there is a nexus between the harm that the claimant fears from Sri Lankan authorities and one of the five Convention grounds, namely that of religion or imputed religious beliefs/association because the claimant has been accused of having been involved in Islamist terrorist activities.
Credibility
[8] The presumption of truthfulness as set out in Maldonado applies to a claimant’s swom testimony unless there is reason to doubt its truthfulness.7 However, the presumption of truthfulness can be rebutted through material contradictions, inconsistencies, and omissions if they are not satisfactorily explained. Further, claims may be undermined by a lack of credibility.
[9] The panel found that the claimant testified in a straightforward manner and that there were no relevant inconsistencies or omissions in his testimony that were not adequately explained. The panel found that his testimony was consistent with the allegations in his BOC narrative and that he provided spontaneous detail. The claimant also provided several documents to corroborate and support the alleged events.
[10] Given the claimant’s credible testimony and supporting documentation, the panel accepts the following as true on a balance of probabilities: the claimant worked as a XXXX from 2005 to 2020; the claimant practices Buddhism; the claimant is married with three children who are all residing in Sri Lanka in the Kegalle District8; the claimant fears the Sri Lankan police, the Sri Lankan Army and the Terrorist Investigation Division (TID); the claimant first experienced problems in October 2017 when he drove with a friend, who will be referred to as “S”9, to XXXX; during their drive, the police asked them to pull over, S was driving and refused to pull over, but they stopped in XXXX where the police arrested them and discovered that the claimant’s friend was a member of the Liberation Tigers of Tamil Eelam (LTTE); the claimant was held for XX days and the police asked him several questions about his involvement in LTTE activities, even though the claimant was not involved; the claimant joined a XXXX shortly after his release because he felt threatened by Sri Lankan authorities due to this experience; on April 21, 2019, the Easter attacks occurred in Colombo and Batticaloa, which killed hundreds of people, and there was growing animosity against Muslims in Sri Lanka due to these attacks; the claimant’s problems also stemmed from renting out a house on his land to his friend, who will be referred to as “M”10, that was Muslim and frequently had male Muslim guests; on XX XX 2020, the police alleged that M was arrested and they found pamphlets, two swords, and documents detailing plans to spread Islam throughout the world; the police attended the claimant’ s home, put a gun to his head and told him to kneel while they searched his home, but they did not find anything; the police searched M’s home on the claimant’ s property and found more pamphlets relating to Islamist extremism; the claimant was taken to the police station and asked many questions about M, and the claimant was accused of helping Muslim extremists, which was exacerbated by his arrest in 2017 for charges that he was working with the LTTE; the claimant was interrogated on XX XX 2020 by officers from the TID and he was assaulted by members of the army during this interrogation11; this continued until XX XX 2020 until his brother-in-law was able to paya bribe to have the claimant released; once released, the claimant did not go home as the police continued to go to his home asking about him; he had a visa to the United States for a XXXX contract and was able to leave the country on XX XX 2021; the claimant did not make a claim in the United States as he always intended to make a claim in Canada, and he entered once covid restrictions were lifted in XX 2022; the police continue to visit the claimant’ s property and ask his mother and wife questions about his location, which is demonstrated through photos taken by their security camera at their home12; the claimant alleges he cannot return to Sri Lanka because he continues to be a person of interest to the authorities in that country as he has been accused of “harboring a terrorist of the Muslim Organization of Tawheed Jamaad” for which a warrant for his arrest has been issued as of XX. XX 2023.13
[11] Given that the panel accepts these allegations as true, the panel finds that the claimant has established his subjective fear of returning to Sri Lanka, on a balance of probabilities.
OBJECTIVE BASIS
[12] The panel finds that there is an objective basis to the subjective fears of the claimant of returning to Sri Lanka given he has been accused of being an Islamist terrorist due to his association with his tenant who is Muslim.
[13] The objective evidence states that of the 22.7 million people in Sri Lanka 70.2% identified as Buddhist, 12.6% identified as Hindu, 9.7% identified as Muslim and 7.4% identified as Christian as per the 2012 census. Between 1981 and 2012, Sri Lanka’ s Muslim population grew by over 40% from 1.12 million to 1.97 million, and there are Muslim communities throughout Sri Lanka, and most speak Tamil. 14
[14] The objective evidence states that there were attacks on Christian churches and luxury hotels in 2019 on Easter Sunday, known as the Easter Sunday attacks.15 Security has been heightened across Sri Lanka since the attacks which were perpetrated by the National Thawheed Jammath (NTJ), and Jamaat-al Mullathu Ibrahim (JMI) and were inspired by Daesh (ISIL/Islamic State) on April 21, 2019.16 More than 250 people were killed and 490 injured.17 The Sri Lankan government claimed that it has “killed or apprehended all those directly involved” in the attack, and nearly 2,300 individuals have been arrested in connection with the attacks, up to 300 of whom remain in police custody as of 2021.18 Further, while most security checkpoints restricting travel to the north and east of the country have been dismantled, some were re-established after the Easter Sunday attacks.19
[15] Tensions rose after the 2019 Easter Sunday Attacks for which the Islamic State militant group took ownership of. There have been several governmental restrictions placed on Muslims
in Sri Lanka, such as the banning of the burka and other face coverings in public on the grounds of national security following the 2019 Easter Sunday Attacks.20 Further, after the attacks,
Muslim small business owners and daily labourers in the Eastern Province were obstructed from carrying out their daily activities, and leaflets were distributed to promote the boycotting of Muslim owned businesses. The Muslim community also came under increased scrutiny as part of the governments counter terrorism efforts following the attacks, which included monitoring for radicalization. According to reporting at the time, up to 2,000 Muslims were questioned and, in many cases, detained for extremism based on limited evidence. Muslims were reportedly
targeted for vehicle searches at security roadblocks throughout the country.21
[16] Further, various political groups emerged in response to perceived threats to Sri Lanka’s Buddhist identity, which includes the Bodu Bala Sena (BBS) which is the most prominent of the groups and was founded in 2012.22 The BBS has engaged in acts of violence and hate speech against religious minorities, particularly Muslims, and hate speech has been particularly present against Muslims on social media.23 Hate speech against Muslims grew significantly in April and May 2020 as they were blamed on social media and in other media as contributing to the spread of Covid during the pandemic. In 2021, a spokesperson for the BBS stated that the government needed to “prevent the emergence of terrorists through Islamic extremism” and treat them the same way the government treated LTTE terrorist activities, wiping them from the country.24
[17] The objective evidence also states that Muslims have been arbitrarily arrested and accused of critiquing Buddhism and the government.25 While the government has amended the Prevention of Terrorism Act in March 2022, the law still allows the government to detain anyone for up to a year without charge, without producing any evidence, and without the possibility of bail, nor are there any meaningful safeguards against torture, rather it is encouraged as a means of obtaining convictions through confessions to a police officer.26
[18] Given the objective evidence which speaks to the treatment of the general Muslim population after the Easter Sunday Attacks, and the treatment of those suspected of being involved in Islamist terrorism simply due to association with the Muslim religion orthose that practice it, the panel finds that there is an objective basis to the claimant’s fears of returning to Sri Lanka.
State Protection
[19] There is a rebuttable presumption that states are capable of providing protection to their citizens, absent a complete breakdown of the state. However, this presumption can be rebutted by clear and convincing evidence from the claimant demonstrating, on a balance of probabilities, that adequate state protection would not be forthcoming.27
[20] The claimant was arrested, detained, held for several days, and tortured, by police and the TID. The claimant continues to be a person of interest to the authorities in Sri Lanka as he has been accused of “harboring a terrorist of the Muslim Organization of Tawheed Jamaad” for which a warrant for his arrest has been issued as of XX 2023. The claimant is a practicing Buddhist and has not had any involvement in the allegations of the police. The claimant has been accused of being connected to terrorist activities due to his friend and tenant, M, having
allegedly been involved in these activities and being arrested by police.
[21] The panel finds, on a balance of probabilities, that adequate state protection would not be available to the claimant in Sri Lanka because in situations where the agent of persecution is the state, the presumption of state protection may be rebutted without exhausting all avenues of recourse in a country. In the claimant’s case the agent of persecution is the police, army and TID, and he fled Sri Lanka on that basis that he was illegally detained and tortured by these agents of the state due to his tenant being found to be an alleged Muslim extremist. There is also a warrant out for the claimant’s arrest, and the police have attended his home several times since he left Sri Lanka in 2021. Therefore, it would not be reasonable to expect the claimant to approach the state for protection, and the presumption of state protection has been rebutted.
Internal Flight Alternative
[22] The test for an internal flight alternative (IFA) is two-fold, as set out by the Federal Court of Appeal in the case of Rasaratnam.28 The panel finds that, on a balance of probabilities, the test for an IFA fails on the first prong in the present case.
[23] As stated previously, the agent of persecution in this case is the state, and according to the objective evidence, Sri Lankan forces maintain effective control throughout the country and individuals are unlikely to relocate internally.29 The state has generated an ongoing interest in the claimant, and the panel finds that the state has the ability to locate him throughout the country, on a balance of probabilities, therefore the IFA test fails on the first prong. There is no viable IFA for the claimant.
CONCLUSION
[24] In consideration of the totality of the evidence, the panel finds that the claimant is a Convention refugee pursuant to section 96 of the IRPA. This claim is accepted.
——— REASONS CONCLUDED ———
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Exhibit 2.
3 Exhibit 1.
4 Exhibit 5, pages 96-117.
5 Exhibit 5, pages7,8, 11, 12.
6 Exhibit 5, pages 9, 10, 13-16.
7 Maldonado v. ME. 1. [1980] 2 F.C. 302, 31 N.R. 34 (C.A.)
8 Exhibit 5, pages 73-88.
9 Exhibit 5, pages 92-94.
10 Exhibit 5, pages 66-69, and 90.
11 Exhibit 5, page 29.
12 Exhibit 5, pages 47-53.
13 Exhibit 5, pages 22-28.
14 Exhibit 3, National Documentation Package, Sri Lanka, 31 July 2023, tab 12.3: Country Policy and Information Note. Sri Lanka: Religious minorities. Version 2.0. United Kingdom. Home Office. August 2021.
15 Exhibit 3, National Documentation Package, Sri Lanka, 31 July 2023, tab 12.1: Sri Lanka. International Religious Freedom Report for 2022. United States. Department of State. 15 May 2023.
16 Exhibit 3, National Documentation Package, Sri Lanka, 31 July 2023, tab 1.9: DFAT Country Information Report: Sri Lanka. Australia. Department of Foreign Affairs and Trade. 23 December 2021.
17 Ibid.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid.
22 Exhibit 3, National Documentation Package, Sri Lanka, 31 July 2023, tab 1.9: DFAT Country Information Report: Sri Lanka. Australia. Department of Foreign Affairs and Trade. 23 December 2021.
23 Ibid.
24 Ibid,
25 Exhibit 3, National Documentation Package, Sri Lanka, 31 July 2023, tab 12.9: Sri Lanka: Eliminating Intolerance and Discrimination based on Religion or Belief and the Achievement of Sustainable Development Goal 16 in Sri Lanka: Submission to the Special Rapporteur on Freedom of Religion or Belief. Amnesty International. 8 June 2020. ASA 37/2487/2020.
26 Exhibit 3, National Documentation Package, Sri Lanka, 31 July 2023, tab 2.11: Sri Lanka. World Report 2023: Events of 2022. Human Rights Watch. January 2023.
27 Canada (Attorney General) v Ward, [1993] SCR 689.
28 Rasaratnam, Sivaganthan v. M.E.1 (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991.
Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
29 Exhibit 3, National Documentation Package, Sri Lanka, 31 July 2023, tab 1.9: DFAT Country Information Report: Sri Lanka. Australia. Department of Foreign Affairs and Trade. 23 December 2021.