2024 RLLR 30

Citation: 2024 RLLR 30
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2024
Panel: Christopher Kinsella
Counsel for the Claimant(s): Michael Korman
Country: Sri Lanka
RPD Number: TC4-19210
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A

DECISION

[1]       These are the reasons for the decision in the refugee claim of XXXX XXXX who alleges to be a citizen of Sri Lanka and is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).¹

[2]       At the end of the hearing, it was agreed that counsel for the claimant would s submit written submissions and post hearing disclosure. These documents² were received on November 22nd, 2024, and were considered when deciding this claim.

ALLEGATIONS

[3]       The claimant’ s allegations are fully set out in his basis of claim (BOC) form and narrative.³ To summarize, the claimant alleges fear of the Sri Lankan authorities based on his imputed political opinion. More specifically, the claimant alleges that he has been accused of being a Liberation Tigers of Tamil Eelam (LTTE) supporter, and has been detained, assaulted, and threatened by agents of the government on multiple occasions.

DETERMINATION

[4]       The panel finds that the claimant is a Convention refugee under s.96 of the Act.

ANALYSIS

Identity

[5]       The panel finds the claimant’s identity as a national of Sri Lanka has been established by his testimony and his seized Sri Lankan passport⁴ on a balance of probabilities.

Nexus

[6]       In order to satisfy the definition of a Convention refugee found in section 96 of the Act, a claimant must establish that he or she has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group or political opinion. In this case, the claimant alleges he has been targeted by the Sri Lankan government due to real or imputed political opinion. The panel finds that the claimant has established a nexus to the Convention ground of real or imputed political opinion. The panel has therefore assessed this claim under s. 96 of the Act.

Credibility

[7]       When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their veracity. The presumption of truthfulness is rebuttable, and the claimant bears the burden of establishing his claim.

[8]       The panel finds the claimant to be a credible witness on a balance of probabilities, and therefore believe what he said in support of his claim. The claimant was able to provide answers to the panel’s questions with spontaneity, precision and details that were consistent with the basis of claim form and narrative. Similarly, when asked questions where the answers were not in the BOC, the claimant’s testimony was spontaneous and fulsome.

[9]       The claimant alleges that as part of his duties as a XXXX he recruited his Tamil friend named S to join the company. The claimant let S borrow his car to travel to XXXX on November 23, 2022. A few days later, the claimant lost contact with Sand on XX XX 2022, police officer went to the claimant’ s house and accused him of supporting the LTTE. The police arrested the claimant and took him to the police station where he was held in a small cell, tortured, and asked questions about his relationship with S and the vehicle he lent to him. They also asked the claimant about a previous trip he took with S to Dubai and also about XXXX LKR he lent S. The claimant’s testimony about these events was consistent with his BOC. In addition, the claimant provided multiple documents as evidence which include photos⁵ with S in Dubai, a support letter from a colleague,⁶ a letter from human resources⁷ which confirmed S worked at the company during the times alleged, and a vehicle registration certificate.⁸ Lastly, the claimant provided a letter from his bank post-hearing⁹ which states that the claimant’s bank account is currently under investigation and details cannot be released without a formal court order or an order issued by the Terrorist Investigation Division. The panel has reviewed the noted evidence and finds it persuasive. The panel has no reason to doubt the authenticity of these documents. As a result, the panel finds that the noted allegations are established on a balance of probabilities.

[10]   The claimant further alleges that he was released from detention on XX XX 2022, after his father paid a XXXX LKR bribe to the officer in charge. In addition to his testimony, which was consistent with the BOC, the claimant provided post-hearing evidence in the form of his father’s bank statements¹⁰ which shows that a withdrawal of XXXX LRR was made on XX XX 2022. The panel has no reason to doubt the authenticity of the bank statement and finds it persuasive. The date and amount withdrawn is consistent with the claimant’s BOC and testimony. The panel finds on a balance of probabilities that the claimant was released from custody on the strength of a bribe.

[11]     At the beginning of the hearing, the panel raised delay in claiming delay in leaving Sri Lanka as issues in the claim. During the hearing, the panel asked why the claimant made a claim in December 2023, almost XX months after entering Canada on XX XX 2023. The claimant explained that the agent he used in Sri Lanka advised to claim after he entered Canada and not to do so at the airport. The claimant also explained that after entering Canada, he approached an interpreter in July and gave him the details about his refugee claim, however he found out the interpreter had passed away and then he had to find another interpreter who in turn connected him with his current counsel. The panel accepts the claimant’s explanation as reasonable. Despite the apparent delay in filing his claim, the claimant has established on a balance of probabilities that he made efforts to file an asylum claim soon after entering Canada and that the claim was not submitted until December because of circumstances beyond the claimant’s control.

[12]     The claimant was also asked about why he left Sri Lanka in XX 2023 if his visa was issued in      XX 2023. The claimant explained that the delayed departure was the result of the agent taking time to secure a bribable officer at the XXXX airport. The panel has no reason to doubt the claimant’s testimony in this regard and therefore accepts the claimant’s response as reasonable.

[13]     In addition to the supporting evidence already cited, the claimant provided letters of support from various family members and friends.¹¹ The panel has reviewed this evidence in detail and finds that it is consistent with and corroborates both the claimant’s BOC narrative and testimony. The panel also notes that the support letters each have corresponding identity documents that is consistent with the authors of each of the letters. The panel gives them full weight. The panel has also reviewed the letter¹² from the Sri Lankan lawyer that the claimant’s father hired to assist the claimant with the false allegations made against him of being an LTTE supporter. The panel has no reason to doubt the authenticity of this letter and it is consistent with both the claimant’s testimony and the allegations in his BOC. The panel gives it full weight.

[14]     Given the totality of the claimant’ s testimony and supporting documents, the panel finds, on a balance of probabilities, that that the claimant is credible and accepts the claimant’s allegations.

Well-Founded Fear of Persecution

[15]     Considering the National Documentation Package (NDP)¹³ country condition evidence, the panel finds the claimant has established their subjective fear is objectively well-founded.

[16]     The LTTE was a former militant organization that fought for an independent Tamil nation. The NDP notes that it was comprehensively defeated by the Sri Lankan government in 2009, but that the Sri Lankan government remains concerned over its potential re-emergence.¹⁴ The Sri Lankan government continues to track, monitor, and arrest suspected members of an LTTE resurgence to date. The NDP further states that while arbitrary arrests, disappearances, and extrajudicial killings have decreased since 2009, these practices do continue in the present day with impunity.¹⁵ The NDP also documents the use of torture and other cruel, inhuman, or degrading treatment by police to obtain confessions from detainees.¹⁶ Human rights abuses by police reportedly increased during 2020-2021 under the guise of the COVID-19 pandemic, though largely in relation to drug-related offences.¹⁷

[17]     The NDP notes that Sri Lanka’s army still occupies high security zones in the north and east of the country and that these forces are believed to be continuing to stigmatize Tamils as militants.¹⁸ It further documents arbitrary arrests, detentions, and harassment of activists, journalists, religious minorities, and persons perceived to be sympathizers with the LTTE.¹⁹ Another source documents that extrajudicial executions, forced disappearances, and torture by police and security forces disproportionately impact Tamils.²⁰ Sorne sources indicate that the human rights situation has deteriorated significantly for Tamil communities since the election of President Gotabaya Rajapaksa in November 2019 and that repression, abuse, and police brutality against Tamil communities is rising.²¹

[18]     The country condition evidence as summarized above is consistent with the claimants’ testimony. The claimant has described abuse suffered at the hands of Sri Lankan authorities, as well as ongoing efforts by the authorities to locate him. Accordingly, the panel find that the claimant’ s subjective fear of persecution at the hands of the Sri Lankan authorities is objectively well-founded.

State Protection

[19]     The state is presumed capable of protecting its citizens except in situations where the state is in complete breakdown. To rebut this presumption, a claimant must establish on a balance of probabilities through clear and convincing evidence that their state’s protection is inadequate on an operational level.

[20]     In this case, the claimant fears the Sri Lankan state itself. When agents of the state are themselves the source of one’s persecution, the presumption of state protection may be rebutted without exhausting all avenues of recourse in the country. The above cited evidence establishes that state authorities arrest, detain and prosecute individuals who are perceived to be supporters of the LTTE.

[21]     The NDP states that Sri Lanka lacks an independent and efficient mechanism to address complaints of torture.²² and that limited steps are taken to hold perpetrators of serious human rights violations accountable.²³ According to the objective documentary evidence in the NDP, although the government has taken some steps to arrest and detain a limited number of police, military and other officials who have committed abuses against citizens, a general culture of impunity persists.

[22]     Considering 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 him in Sri Lanka. The panel therefore finds that there is no operationally adequate state protection available to the claimant in their specific circumstances.

Internal Flight Alternative

[23]     While not raised as an issue at the beginning of the hearing, the panel also considered whether a viable internal flight alternative exists for the claimant. The documentary evidence regarding the persecution faced by individuals suspected of supporting the LTTE is not restricted to any one region, although it is most prevalent in the North and East of the country. According to NDP sources, Sri Lankan forces maintain effective control throughout the country and individuals are unlikely to relocate internally.²⁴

[24]     Therefore, the panel finds that there is a serious possibility of persecution for the claimants throughout Sri Lanka and concludes that there is no viable internal flight alternative.

CONCLUSION

[25]     For the forging reasons, the panel finds that the claimant is a Convention refugee pursuant to section 96 of IRPA. His claim is accepted.

——— REASONS CONCLUDED ———

1 Immigration and Refugee Protection Act, S.C.2001, c. 27.

2 Exhibit 7.

3 Exhibit 2.

4 Exhibit 1.

5 Exhibit 5, page 69.

6 Exhibit 5, pages 27-31.

7 Exhibit 7, page 1.

8 Exhibit 5, pages 83-84.

9 Exhibit 7, page 8.

10 Exhibit 7, pages 2-7.

11 Exhibit 5, pages 1-50

12 Exhibit 5, pages 51-55.

13 Exhibit 3.

14 Exhibit 3, item 1.9.

15 Ibid.

16 Ibid., item 10.7.

17 Ibid., item 10.6.

18 Ibid., item 13.3.

19 Ibid.

20Ibid, item 13.1.

21 Ibid.

22 Exhibit 3, item 2.2.

23 Ibid., item 2.1.

24 Exhibit 3, item 1.9.