2022 RLLR 103

2022 RLLR 103 Citation: 2022 RLLR 103 Tribunal: Refugee Protection Division Date of Decision: December 8, 2022 Panel: Avril Cardoso Counsel for the Claimant(s): Ian D. Hamilton Country: Sri Lanka RPD Number: TC1-05389 Associated RPD Number(s): N/A ATIP Number: A-2023-01023 ATIP Pages: N/A REASONS FOR DECISION [1] The claimant, XXXX (the “claimant”) claims to be a citizen of Sri Lanka and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration Refugee Protection Act (IRPA).[1] ALLEGATIONS [2] The details of the claimant’ s allegations are set out in his Basis of Claim (“BOC”) form.[2] [3] The 27-year-old male Sinhalese claimant fears persecution by the government because of imputed support of the Liberation Tigers of Tamil Eelam (LTTE) arising from his activities in Canada. Specifically, he joined two cricket teams consisting of primarily players of Tamil origin and the Tiger flag is displayed at team events. DETERMINATION [4] I find that the claimant is a Convention refugee under section 96 based on imputed political opinion. ANALYSIS Identity [5] The claimant has established his persona! and national identity based on his passport, national identity card and testimony.[3] Credibility [6] The claimant benefits from the rebuttable presumption of truth. Background facts [7] The claimant came to Canada on XXXX, 2017 based on a study permit to attend XXXX College. He returned to Sri Lanka on XXXX,2018 to visit family and was detained by Sri Lanka authorities. He returned to Canada on XXXX 2018 and claimed protection on XXXX, 2020. The claimant is Sinhalese [8] I find that the claimant is a Sinhalese Buddhist. His birth certificate[4] indicates that both his parents are Sinhalese and I accept his testimony that he is a Buddhist. The claimant was detained in XXXX 2018 [9] I find that the claimant was detained by the authorities in Sri Lanka on XXXX, 2018 and held until XXXX, 2018. Although his refugee claim forms indicate he was detained from XXXX to XXXX, 2018 he insisted it was XXXX and that he clearly remembers this date clearly. He said he confirmed this in his first interview. The claimant testified that he returned to Sri Lanka on XXXX 2018 and the next week, Criminal Investigation Division (CID) officers came to his home and searched his phone and his room. He said they informed him that they saw pictures of his activities with Tamil people and then took him to the 4th Floor CID office. He said he was put in an empty room containing a table and a chair and he was handcuffed. The claimant testified that he was questioned about his connections to the LTTE. He said he spoke with his father on the second day and was released with a warning that his activities in the diaspora would be under surveillance. The claimant testified that he obtained medical treatment at the XXXX hospital on XXXX, 2018. He described hearing loss likely stemming from a slap/punch on his jaw and wrist injuries from being handcuffed. He said he was prescribed pain killers and rest. [10] The claimant’s testimony was spontaneous and materially consistent with his narrative. It was corroborated by supporting documents, specifically, a medical report which describes treatment and injuries consistent with the claimant’s testimony.[5] Delay claiming protection is not credibly explained [11] The claimant arrived in Canada on XXXX, 2018 and made his claim for protection on October 1, 2020. When asked to explain this apparent delay, he testified that he planned to study here until_XXXX, 2019. He said he did not complete the four-semester XXXX program because he was worried and his mental state was not conducive to studying. He said he was gathering information about regularizing his status in Canada and was vigilant about the situation in Sri Lanka. He also said he needed to work to pay for legal fees. He said once Gotabaya Rajapaksa came into office in November 2019, he decided to make a claim for protection. He said the pandemic delayed his efforts. When I pointed out that pandemic restrictions did not come into effect until March 2020, he said he was collecting information from friends about filing a claim for protection. He admitted that he did not have status in Canada from XXXX 2019 until October 2020. In response to counsel’s questions, the claimant elaborated about his information gathering efforts and said he spoke with the community, friends and advisors. He said that he heard that only Tamil claims for protection were successful. [12] I find that the claimant’s explanation for this delay is not credible. His testimony lacked detail and evolved as he was questioned. For example, regarding the timing of the pandemic which he blamed for some delay. The claimant’s study visa was valid until XXXX, 2019 and he remained in Canada for over a year without status. He did not credibly explain why he did not take steps to secure his immigration status from XXXX 2019 until February/March 2020 when the pandemic restrictions took effect. I find this failure to act detracts from his subjective fear. The claimant faces a forward risk based on sur place activities in Canada [13] The claimant testified that he attended a protest in Mississauga near XXXX opposing Gotabaya Rajapaksa – Aragalaya protest. He said the protests occurred from August to September 2022 and the objective was to pressure Gotabaya Rajapaksa to resign. The claimant said the protests started in Sri Lanka and many countries around the world joined this movement in solidarity with Sri Lanka. He said he attended twice and said there was live media and social media coverage of the event. The claimant also testified about attending the Mullivaikal Remembrance event in May 2018 and again in 2019 to remember those who died in the civil war. He said this event was held at the XXXX. The claimant said he had many Tamil friends who passed away and he was invited to attend as he is closely associated with the Tamil community. When asked about his interest in Tamils, the claimant testified that he grew up in XXXX with Tamil people. He said many Tamils settled in XXXX from the North. He said he had Tamil and Muslim friends. The claimant said his mother was a XXXX and XXXX to many Tamil and Muslim children which fostered his connected with Tamil children. [14] The claimant also provided testimony about his activities with two cricket clubs in Canada which are primarily patronized by Tamil people. He said he has posted pictures of various tournaments and team events on social media and submitted some of his social media posts. He said that he has not posted after coming back to Canada in XXXX 2018 out of fear and because the authorities had discovered his social media posts when he was detained in XXXX 2018. He said that the Sri Lankan government viewed the display of the Tiger flag at the cricket events as an anti-government view and intention to rebuild the LTTE. The claimant said the flag has no meaning to him and he just enjoys playing cricket. [15] The claimant also testified that the authorities visited his mother on XXXX, 2022 and she was questioned about the claimant’ s attendance at the Aragalaya protest in Canada. He said this event was widely televised on television and social media which was likely how his attendance was discovered. [16] I find that the claimant has credibly established his attendance at the Aragalaya protest in XXXX 2022. He has also established that his social media posts related to cricket tournament and associated events where the Tiger flag was prominently displayed would have drawn concern from the authorities who would have perceived this as an expression of anti­ government opinion and support for the LTTE. The claimant submitted a statement from his mother, letters from two cricket clubs he plays with and social media posts which include the Tiger flag in the background.[6] Credibility conclusion [17] Despite the credibility concerns regarding the claimant’s delay in claiming protection, he has credibly established his detention in Sri Lanka and his sur place activities in Canada with the Tamil diaspora. I give more weight to the credible evidence as it goes to the core of his claim. Well-Founded Fear of Persecution [18] The claimant’s fear of deportation to Sri Lanka has an objective basis and is well- founded. He was detained upon return to Sri Lanka in XXXX 2018. The authorities were aware of his activities with the Tamil cricket teams including photos where the Tiger flag was displayed. His mother was questioned in XXXX 2022 after his attendance at a protest in Canada. Taken together, it is likely that the claimant would be of interest to the authorities upon return and a record of his past detention would likely come to light. [19] After Gotabaya Rajapaksa took power in November 2019, progress towards accountability and human rights deteriorated and a return to past decades of widespread human rights violations was feared.[7] It is reported that authorities monitor public gatherings including at memorialization events. Participants in public gatherings are often photographed. Intelligence agencies also monitor links to foreign groups including some in the Tamil diaspora.[8] The Sri Lankan government may perceive attendance ag meetings and demonstrations, holding flags or banners displaying the LTTE emblem or attendance at commemorative events and any presence on social media as anti-government which may trigger official harassment upon return.[9] According to this source, Sri Lankan security forces maintain effective control throughout Sri Lanka and individuals are unlikely able to relocate internally with anonymity.[10] [20] The U.S. Department of State report states that significant human rights issued included torture, arbitrary arrest and detention and politically motivated reprisals against individuals in other countries. Perpetrators operated with effective impunity.[11] [21] Amnesty International notes that the government continued its crackdown on dissent and reports excessive use of force. The Prevention of Terrorism Act continued to be used to target critics from minority communities through arbitrary arrests and prolonged detention without judicial oversight.[12] [22] Another research reports states that non-Tamils who express support for or raise Tamil issues are branded as Liberation Tigers of Tamil Eelam (LTTE) sympathizers.[13] [23] Another research reports states that the Sri Lankan government perceives political activities by members of the Tamil diaspora as a primary threat to territorial integrity and national security. This source states that the authorities conflate advocating for Tamil issues with LTTE resurgence and Tamil separatism. Sri Lanka’s embassies are heavily invested in carrying out surveillance of Tamil communities in the diaspora including taking photographs at demonstrations.[14] According to this source, returnees who sought asylum are seen as traitors. There is also a stop list containing arrests and detentions and a watch list for surveillance which is accessible at the airport.[15] State Protection [24] There is a presumption of state protection unless a state is in a condition of complete breakdown. This presumption is rebutted with clear and convincing evidence. [25] Given that the state is the agent of persecution, I find that it would be objectively unreasonable for the claimant to seek the protection of the state in his circumstances, and adequate state protection would not be reasonably forthcoming. Internal Flight Alternative (IFA) [26] Given that the state is the agent of persecution with control over the entire country, I find that there is a serious possibility of persecution throughout Sri Lanka and therefore a viable IFA does not exist. CONCLUSION [27] Having considered all the evidence, I find that there is a serious possibility that the claimant would face persecution in Sri Lanka. I find that the claimant is a Convention refugee and I accept his claim. (signed) Avril Cardoso December 8, 2022 [1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. [2] Exhibit 2. [3] Exhibit 4 and 8. [4] Exhibit 7, p. 14. [5] Exhibit 8, p. 14. [6] Exhibit 7, pp. 49, 50, 51, 53 and Exhibit 8, pp. 1-2 pp. 10-14. [7] Exhibit 3, National Documentation Package (NDP) on Sri Lanka (May 31, 2022), Item 1.9 at para. 2.5. [8] Exhibit 3, National Documentation Package (NDP) on Sri Lanka (May 31, 2022), Item 1.9 at paras. 3.9 and 3.10. [9] Exhibit 3, National Documentation Package (NDP) on Sri Lanka (May 31, 2022), Item 1.9 at para. 3.54. [10] Exhibit 3, National Documentation Package (NDP) on Sri Lanka (May 31, 2022), Item 1.9 at para 5.14. [11] Exhibit 3, National Documentation Package (NDP) on Sri Lanka (May 31, 2022), Item 2.1 p. 2. [12] Exhibit 3, National Documentation Package (NDP) on Sri Lanka (May 31, 2022), Item 2.2 p. 1. [13] Exhibit 3, National Documentation Package (NDP) on Sri Lanka (May 31, 2022), Item 13.1, p. 20. [14] Exhibit 3, National Documentation Package (NDP) on Sri Lanka (May 31, 2022), Item 14.7 at pp. 2, 3 [15] Exhibit 3, National Documentation Package (NDP) on Sri Lanka (May 31, 2022), Item 14.7 at p. 4.