2024 RLLR 67
Citation: 2024 RLLR 67
Tribunal: Refugee Protection Division
Date of Decision: November 4, 2024
Panel: Asheka Tasnim
Counsel for the Claimant(s): Ian D Hamilton
Country: Sri Lanka
RPD Number: TC2-00296
ATIP Number: TC2-00297, TC2-00298
ATIP Pages: A-2025-00362
REASONS FOR DECISION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX XXXX (the principal principal claimant), XXXX XXXX XXXX XXXX XXXX (the associate principal claimant), and XXXX XXXX (the minor principal claimant), who are citizens of Sri Lanka and are seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
Designated Representative
[2] XXXX XXXX XXXX XXXX was appointed as the designated representative for the minor principal claimant, XXXX XXXX, pursuant to the Refugee Protection Division Rules.
Rule 55
[3] These claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules.
Notice to Minister
[4] A notice to Minister was sent on the basis of exclusion under Article 1F for the principal claimant. The Minister responded they did not intend to intervene and submits that it is an abuse of the process to have a refugee claim in process while also having an application for permanent residence.
ALLEGATIONS
[5] The claimants’ allegations are set out in the Basis of Claim form (BOC).[2] In summary, the claimants are citizens of Sri Lanka and fears harm from the security forces in Sri Lanka. The principal claimant believes he is being targeted due to his Islamic faith and has been accused by the security forces of supporting a terrorist organization in Sri Lanka.
DETERMINATION
[6] The panel finds that the principal claimants are Convention refugees pursuant to section 96 of the IRPA.
ANALYSIS
Identity
[7] The principal claimants’ personal and national identities as citizens of Sri Lanka are established, on a balance of probabilities, by their testimony, supporting documents, and copies of their Sri Lankan passports.[3]
Nexus
[8] In order to satisfy the definition of a “Convention refugee,” as per s. 96 of IRPA, a claimant must establish that they have a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group, or political opinion.
[9] The panel finds that the allegations of the principal claimant establish a nexus to the Convention grounds based on his ethnicity as a Tamil Muslim man. The panel also considered that the principal claimant has been accused by state agents of being a supporter of a terrorist organization, which leads to a well-founded fear of persecution based on the principal claimant’s imputed political opinion.
[10] As such, the panel will assess this claim under section 96 of IRPA.
Credibility
[11] When a principal claimant swears to the truth of certain allegations, it creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.[4] However, the presumption of truthfulness can be rebutted through material contradictions, inconsistencies, and omissions if they are not satisfactorily explained. The presumption of truth does not apply to inferences or speculation.
[12] The panel finds the principal claimant testified in a straightforward, spontaneous, and credible manner. There were no material inconsistencies in the evidence which have not been satisfactorily explained. The presumption of truth holds in the claim.
[13] The principal claimant is a young Tamil Muslim man from XXXX, Sri Lanka. The principal claimant identified himself as a Sri Lankan Moore. The principal claimant testified that while in Sri Lanka he was part of an organization called XXXX XXXX, which he founded with his school friends while in XXXX. The organization XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The principal claimant states that he was socially active in the community from a young age, but he was not part of any other organization. The principal claimant states that he interacted with the Sri Lankan police on two occasions while in Sri Lanka. The first interaction occurred when the principal claimant travelled to XXXX to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and the second time was when his brother was detained by the security forces and he and his father had to report to the police station. In addition to the principal claimant’s very detailed BOC, the principal claimant provided testimony that was consistent with his BOC.
[14] The principal claimant testified that claiming refugee protection was not part of his plan as he had come to Canada for furthering his career prospects, however, the principal claimant fears returning to Sri Lanka as he believes he would be arrested and face persecution.
[15] The principal claimant testified that he received updates from his father in Sri Lanka that the TID had come looking for him again in 2024, a month prior to this latest hearing, and inquired as to when he and his wife will be returning to Sri Lanka. The principal claimant testified that he never had any direct interaction with the TID.
[16] The principal claimant applied for a police clearance in Sri Lanka in XXXX 2018 for his study permit to Canada and was able to receive the police clearance certificate without any issue. The principal claimant since then has been residing in Canada and completed his study program. The principal claimant went back to visit his family in XXXX 2019, as his wife was due for the birth of their child, and came back to Canada within the same month.
[17] The principal claimant received an invitation to apply for his permanent residency as per his immigration process in Canada, and again applied for a Sri Lankan police clearance in XXXX 2020 as part of the permanent residency process. The principal claimant testified that he received a police clearance from Sri Lanka in XXXX 2021 naming him as being associated with an Islamic terrorist organization, Jammiyathui Millathu Ibrahim Organization, suspected for the 2019 Easter Attacks in Sri Lanka. The principal claimant states that he withdrew from the permanent residency process in Canada, and had his father-in-law in Sri Lanka go to the police station in person to correct what he believed might have been a mistake. The principal claimant states that at the time his brother was being held in detention for a second time in Sri Lanka and he did not want to send his own father because his parents would not have the strength to deal with the police.
[18] The principal claimant testified that during his last interaction with the Sri Lankan police in 2019 he was questioned on his studies, Islamic studies, job as a XXXX XXXX in Sri Lanka, friends and family, and whether he knew a particular XXXX XXXX who also hailed from Colombo and was considered responsible for the Easter Attacks in Sri Lanka. The principal claimant stated that he was being targeted because of the similarities he had with the wanted person and especially because of his religion, Islam. The principal claimant states that he continues to be socially active in Canada by volunteering with many organizations and had taken part in a protest against the Sri Lankan government.
[19] In support of his claim, the principal claimant provided documentary evidence[5] including but not limited to; the two police clearance certificates from Sri Lanka, letter of appeal submitted to Sri Lankan police to amend the police certificate, invitation to apply for Canadian permanent residency, a submission to Human Rights Commission in Sri Lanka regarding his brother’s detention and arrest papers for his brother, multiple affidavits from family members, colleague, and organizations he is associated with, and photos of his community work in Sri Lanka and in Canada, including photos of the principal claimant protesting against the Sri Lankan government in Canada. The panel accords significant weight to the evidence in corroborating the principal claimant’s testimony of the harm he experienced at the hands of state agents in Sri Lanka.
[20] The panel finds on a balance of probabilities, based on the principal claimant’s testimony and supporting documents, the principal claimant has established that he fears being harmed by state agents if he were to return to Sri Lanka. Accordingly, the panel finds on a balance of probabilities, the principal claimant has established his subjective fear of persecution based on his ethnicity as a Tamil Muslim man and thereby his imputed political opinion.
Well-Founded Fear of Persecution
[21] When assessing a claim for refugee protection, the panel looked at whether the principal claimant has a well-founded fear of persecution which involves both a subjective fear element and objective basis for that fear. The law is very clear that the definition of Convention refugee is forward-looking. As articulated by the Federal Court of Appeal in Mileva, “[t]he question raised by a claim to refugee status is not whether the principal claimant had reason to fear persecution in the past, but rather whether he now, at the time his claim is being decided, has good grounds to fear persecution in the future.”[6]
[22] The objective evidence supports the principal claimant’s allegations and fear of persecution.
[23] The National Documentation Package (NDP) for Sri Lanka, establishes that widespread violence perpetrated against the religious and ethnic minorities are taking place in Sri Lanka, not only by the extremists, but also by the Sri Lankan state.[7] The US Department of State report says that there are serious human rights issues in Sri Lanka and serious problems with the independence of the judiciary, government corruption and crimes involving the targeting of members of national, racial, and ethnic minority groups.[8]
[24] The evidence clearly indicates that after the 2019 Easter Sunday attacks, there has been a surge in hostility towards Muslims in Sri Lanka and the situation is getting worse regarding anti-Muslim violence, discrimination, harassment, and marginalization. Freedom in the World Report 2023 states that religious minorities are vulnerable to violence and mistreatment by security forces and Sinhalese Buddhist extremists.[9]
[25] The 2020 Human Rights Watch report states that calls to boycott Muslim organizations and concerns for safety and security of Muslims after the 2019 Easter Sunday attacks are widespread.[10] NDP item 12.6 talks about hostility towards Muslims.[11] Many Tamils report that they were monitored and harassed or detained by security forces.[12]
[26] The objective evidence shows that there is a prevalence of significant human rights abuses in Sri Lanka, which includes unlawful killings by the government, torture by government agents and arbitrary detention by government entities. Sri Lanka lacks independent and efficient mechanisms to address complaints of abuse and harassment.[13] Limited steps are taken to hold perpetrators of serious human rights violations accountable. Furthermore, police and security forces are known to engage in abusive practices, including extrajudicial executions, forced disappearances, custodial rape, and torture.
[27] Due process rights are undermined by the PTA (Prevention of Terrorism Act), which was expanded in March 2021 to allow the authorization of a two-year rehabilitation detention without trial for anyone accused by the authorities of causing religious, racial, or communal disharmony.[14] Many prisoners, especially from minority communities, remain in pre-trial detention lasting many years under the PTA, or are serving lengthy terms, following convictions based on confessions obtained using torture. According to civil society and the HRCSL; under the PTA the ability to challenge detentions was particularly limited.[15]
[28] Amnesty International indicates that reports of torture and other ill-treatment in detention continues.[16] In March, Sri Lanka’s human rights record was examined under the UPR process; the Human Rights Commission of Sri Lanka said that it had continued to document widespread incidents of violence against detainees, including torture and other ill-treatment, which it described as “routine” and practiced throughout the country, mainly by police. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism found that 80% of those arrested under the PTA in late 2016 had complained of torture and other ill-treatment.
[29] The principal claimant states that his younger brother in Sri Lanka was detained by the security forces following the Easter Attacks in 2019 and falsely accused of sharing a post on Facebook in 2014. His brother was subsequently released following months of detention and then again detained since 2021. The principal claimant testified that no charges were laid against his brother and that his brother remains in detention since 2021 without any reason given for the detention.
[30] The NDP indicates that since the Sinhalese nationalist government attained power in November 2019, it has further adopted discriminatory practices and policies against the country’s Muslim and Tamil minorities. Those groups are being increasingly marginalised and excluded from the national vision and government policy. Tamils endured discrimination and widespread violations of human rights under the Rajapaksa presidency. Although he has now been replaced and the constitution amended to curb the powers of the President and Prime Minister, changes to the treatment of Tamils remains uncertain.[17]
[31] Furthermore, asylum seekers are viewed as having undermined or shamed the country, and thus are viewed as traitors.[18] Tamils then face more secure scrutiny on return to Sri Lanka, especially as failed asylum seekers. Returnees are checked against watchlists maintained by the police, as well as the watchlist maintained by the state intelligence services.[19] The U.K. Home Office FFM report cites representatives of the Sri Lankan Department of Immigration and Emigration as indicating that returning failed asylum seekers will be questioned if they’ve overstayed their visa. If a person is identified as a failed asylum seeker they will be questioned, then passed to CID (Criminal Investigation Department). They may be released but monitored.[20] There is also documentary evidence indicating that past involvement in or association with the LTTE is key in terms of bringing returnees to the adverse attention of the authorities and causing them to face possible mistreatment.
[32] In consideration of the objective evidence in the NDP and the principal claimant’s testimony, the panel finds on a balance of probabilities that principal claimant’s fear of persecution at the hands of the Sri Lankan authorities is objectively well-founded. The panel finds on a balance of probabilities that the principal claimant’s profile and his imputed political belief would allow a serious possibility for the claimants to experience persecution if they were to return to Sri Lanka.
State Protection
[33] While there is a presumption of state protection, this presumption can be rebutted with clear and convincing evidence that state protection will not be forthcoming to a principal claimant.[21] After considering the objective evidence discussed above and the testimony, and given that the state is the agent of harm in this case, the panel finds on a balance of probabilities that state protection would not be forthcoming to the principal claimant in Sri Lanka. As such, the panel finds the principal claimant has rebutted the presumption of state protection.
Internal Flight Alternative
[34] The panel finds that an internal flight alternative does not exist for the principal claimant as he was targeted by state agents and the state agents are in control of the entire territory. Given the reasoning outlined above, the panel finds on a balance of probabilities that the principal claimant will face a serious possibility of persecution throughout the country and, therefore, there is no viable IFA.
CONCLUSION
[35] In consideration of the totality of the evidence, the panel finds that the claimants are Convention refugees pursuant to section 96 of the Act.
[36] Accordingly, the claim is accepted.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended.
[2] Exhibit 2
[3] Exhibit 1
[4] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302
[5] Exhibit 5, Exhibit 6, Exhibit 7
[6] Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.) at para 8.
[7] Exhibit 3
[8] Exhibit 3, item 2.1
[9] Exhibit 3, Item 2.3
[10] Exhibit 3, Item 12.5
[11] Exhibit 3, Item 12.6
[12] Exhibit 3, Item 1.9
[13] Exhibit 3, Item 2.1
[14] Exhibit 3, Item 2.3
[15] Exhibit 3, Item 7.2
[16] Exhibit 3, Item 2.2
[17] Exhibit 3, Item 5.4
[18] Exhibit 3, Item 14.7
[19] Exhibit 3, Item 4.1
[20] Exhibit 3, Item 14.6
[21] Canada (Attorney General) v. Ward,[1993] 2 S.C.R. 689,103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.