2024 RLLR 9

Citation: 2024 RLLR 9
Tribunal: Refugee Protection Division
Date of Decision: July 10, 2024
Panel: Eva Di Noto
Counsel for the Claimant(s): Ian D Hamilton
Country: Sri Lanka
RPD Number: TC2-02518
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A

DECISION

[1]                   MEMBER: This is the decision in the claim for refugee protection made by XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, file number TC2-02518.

[2]                   You are claiming to be a citizen of Sri Lanka and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. In making this decision, I have considered and applied Chairperson’s Guideline 9, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression and Sex Characteristics . I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally.

[3]                   I find that you are a Convention refugee on the grounds of your sexual orientation for the following reasons.

[4]                   You allege that you are a citizen of Sri Lanka and allege that you fear persecution at the hands of Sri Lankan police, including your father, your ex-husband, and society due to your sexual orientation as a lesbian. You allege if you returned, you would be persecuted and unable to freely be who you are in Sri Lanka. You allege that there is no state protection for you or an internal flight alternative available.

[5]                   Your personal identity as a citizen of Sri Lanka has been established by your testimony and the supporting documents filed with your exhibits, namely the certified true copy of your Sri Lankan passport, which can be found in Exhibit 1. You have also provided a copy of your birth certificate and Sri Lankan driver’s licence and Exhibits 2 and 3. I therefore find on a balance of probabilities that your identity and country have referenced have been established.

[6]                   I find there is a link between what you fear and a Convention ground, namely membership in a particular social group, due to your sexual orientation as a lesbian woman from Sri Lanka. I have therefore assessed your claim under section 96.

[7]                   In terms of your credibility, I found you, miss, to be generally a credible witness. Your testimony was very straightforward, and you were forthcoming and did not embellish your testimony, and I also found that there were no major errors, omissions, or inconsistencies in your testimony. In short, I do not find that there were any issues — sufficient issues to undermine the presumption of truthfulness.

[8]                   You told me in consistent detail about your experiences growing up in Sri Lanka, and how you began to realize your sexual orientation as a young woman. You told me how you began to realize when you were in a girls’ school, and how, in 2012, you started a romantic relationship with XXXX (ph), who became your first female partner. You were able to candidly describe the relationship from its start all the way to the contact you still maintain with her today, and your intentions to one (1) day have a family with her, which is not permitted in Sri Lanka.

[9]                   I found you also provide a detailed testimony surrounding your experiences here in Canada. I note you have been in Canada since XXXX of 2021. However, you told me — you were able to tell me how you were able to express your sexual orientation to Canada, and how you have been able to express it. Furthermore, you have also testified that you dated other women after arriving in Canada. You told me in detail about those relationships, including how you met and some of the things that you did together.

[10]                   I also note that you provided a number of photos of you together, including from XXXX, also from XXXX (ph) and XXXX (ph), the two (2) women that you dated here. You provided a number of documents to support your claim, and these include the various photos from Canada and Sri Lanka, documents from XXXX XXXX, letters of support from XXXX and your mother, XXXX (ph), and your two (2) friends XXXX (ph) and XXXX (ph) from childhood, both of whom were aware of your relationship with XXXX and your abusive marriage to XXXX (ph). They were all able to corroborate when and where you met and describe the relationship as stated in your BOC narrative.

[11]                   I also find that there is an objective basis for what you fear in Sri Lanka, which is supported by the National Documentation Package at Exhibit 3. As noted in Items 2.1, 6.3, and 6.4, consensual activity between adults of the same sex is illegal in Sri Lanka, with those convicted facing up to 10 years of imprisonment. Anti-discrimination laws do not prohibit discrimination based on sexual orientation and gender identity. The act relating to sexual acts between same-sex individuals is inherently problematic in the way it is worded, and the lack of legal interpretation allows law enforcement to abuse its power by giving them the virtue of these laws to arrest, detain, and harass people of the LGBTQ+ community by willingfully (sic) misinterpreting these laws and intentions.

[12]                   Although there have not been many cases where — in which a person has been accused of homosexual activities and has been prosecuted under these laws, the laws are still used to threaten and discriminate against members of the LGBTQ+ community. For example, medical personnel in Sri Lanka also perform invasive physical exams to obtain evidence of homosexual conduct and continue to face threats, harassment, and forced heterosexual marriage from family members, members of the community, and some members of the LGBT community, which you also faced in your forced marriage to your soon-to-be-ex-husband (sic).

[13]                   Although I do note that the Supreme Court has ruled in favour of decriminalization, objective evidence does support the discrimination faced by LGBTQ+ community, and you testified about the obstacles in finding housing and employment as well, which are both supported by NDP evidence found in section 6.3 of the NDP for Sri Lanka. And while I note the west and central regions of Sri Lanka are considered to be more tolerant of sexual orientation relative to other parts of Sri Lanka, hostility towards the LGBTQ+ community exists across the board, or across the country, and is not confined to any particular ethnic group or geographical area.

[14]                   I also noted you have provided some country condition evidence through your Counsel in pages 1 to 83 of your initial disclosure, which details that persons identifying as LGBTQI face horrific incidences of discrimination and violence in Sri Lanka, and it is further confirmed by the evidence in the NDP.

[15]                   Therefore, based on the evidence before me, I find that you have a well-founded fear of persecution.

[16]                   In assessing the issue of state protection, there is a presumption that the state is capable of protecting its citizens, except in situations where the state is in complete breakdown. The claimant is tasked with rebutting the presumption of state protection by providing clear and convincing evidence that protection in their home country is inadequate.

[17]                   Objective evidence indicates that police use threat of assault — threat of arrest to assault, harass, and sexually or monetarily extort lesbian, gay, bisexual, transgender, intersex persons at Item 2.1. The lack of any constitutional protection or anti-discrimination laws or policies is noted as exposing the LGBTQI individuals to pervasive discriminatory treatment in all aspects of daily life, including their employment, housing, healthcare, education, and law enforcement. This can be found in Exhibit 3, Item 6.3.

[18]                   In view of the criminalization of the same-sex activities in the country and the state agent of persecution, I find that there is no state protection available to you, and therefore, I find that the presumption of state protection has been rebutted.

[19]                   I have also considered whether there is a viable internal flight alternative that exists for you. On the evidence before me, I find that, on a balance of probabilities, there is no viable internal flight alternative in Sri Lanka because the risk to you is evident throughout the country, as the conditions are similar throughout the country.

[20]                   Therefore, on the totality of the evidence, I find you face a serious possibility of persecution in Sri Lanka on the grounds of your membership in a particular social group, as a lesbian. I find you to be a Convention refugee, and therefore, I accept your claim.

——— REASONS CONCLUDED ———