Persuasive Decision VA9-02166

Background

[25] Sri Lanka's political landscape has radically changed over the last 18 months. In order to assess what those changes may mean for the claimant's claim to refugee protection, it is important to examine these changes in their historical context. From such an understanding, a determination can be made about whether the claimant currently is a protected person pursuant to sections 96 and 97 of the Act.^{Note 9}

[26] The claimant fled Sri Lanka on XXXXX, 2007. At the time he arrived in Canada on April 19, 2009, the Sri Lankan government had been in a civil war with the Tamil LTTE for over 26 years. Security forces and pro-government paramilitary groups had committed numerous human rights violations, including arbitrary arrests, detentions, armed attacks, killing of civilians, recruitment of child soldiers, and torture.^{Note 10} The overwhelming majority of victims were young male Tamils.^{Note 11}

[27] Outside of the conflict zone too, such as in Colombo, young male Tamils overwhelmingly were the victims of extrajudicial killings and disappearances.^{Note 12}

[28] In the first several months of 2009, the fighting intensified. The Sri Lankan Army ultimately defeated the LTTE, capturing all remaining LTTE controlled territory. In these final months of fighting, the LTTE forcibly recruited adults and children as combatants, used civilians as human shields against the approaching government forces, and attacked civilians who tried to escape. According to some estimates, thousands of civilians died in this fighting.^{Note 13}

[29] The LTTE conceded defeat in May 2009 and stated that it had decided to lay down its arms.^{Note 14}

[30] The United Nations estimates that the conflict had killed between 80,000 - 100,000 people since it erupted into a full-scale civil war in 1983 - including unofficial and unverified tallies showing 7,000 civilian deaths since January 2009.^{Note 15}

[31] When the war concluded, the situation for young Tamil men from the north and for much of the Tamil community as a whole remained dire. The government had used heavy weaponry indiscriminately in areas densely populated with civilians. The SLA continued to disappear young Tamil men as displaced civilian Tamils crossed into government territory.^{Note 16}

[32] The army had arrested and detained more than 12,000 suspected LTTE cadres and others with suspected LTTE links. These detainees, the vast majority being Tamil males, were kept in separate rehabilitation sites and prisons.^{Note 17} Many were allegedly arrested on limited evidence.^{Note 18}

[33] Approximately 300,000 people, most of whom were ethnically Tamil, were interned in wretched conditions in camps under military control, with no independent oversight or access to the United Nations or non-governmental organizations.^{Note 19} There were allegations of various crimes committed against the interned by governmental forces, including rape and sexual assault.^{Note 20}

[34] After such horrific maltreatment for so many, the conditions for young Tamil men and for Tamils in general began to improve. The Sri Lankan government started to release Tamils from detention. By mid-June 2010 approximately 246,000 persons were released from the displacement camps to return to their places of origin or to live with host families, relatives and friends. There are plans for the remaining 40,000 to be released by the end of 2010.^{Note 21}

[35] By January 2010, the government began to also release some of the suspected LTTE cadres. At the end of May 2010, all former LTTE-associated child soldiers had been reportedly released from rehabilitation centres.^{Note 22} Some of the adult detainees have also been released after completing rehabilitation programmes or because they were no longer deemed to present a risk, including some persons with physical disabilities. As of May 2010, around 9,000 alleged former LTTE cadres are reportedly still in closed camps.^{Note 23}

[36] The situation for persons suspected of having links with the LTTE remains forbidding. There are allegations from a number of sources that indicate that such persons face torture and death in detention. Prison conditions are poor.^{Note 24} Moreover, LTTE members, and those suspected of having links with the LTTE, are still being apprehended by authorities.^{Note 25}

[37] Except for those suspected of being LTTE members or those suspected of having links with the LTTE, life for the remaining Tamil population has improved. Restrictions on freedom of movement have ceased.^{Note 26} The A9 road, the main arterial link joining the north and south of the country, is now operational. This road is now busy with traffic, including tourist buses.^{Note 27}

[38] Other security measures however, including military/police checkpoints along the main roads and a highly visible military presence continue to be maintained through the country, reportedly to prevent the re-establishment of the LTTE by cadres still at large.^{Note 28}

[39] The human rights situation in the country has also improved.^{Note 29} The government has relaxed some of its emergency legislation. It has withdrawn several provisions, including those dealing with the imposition of curfews, as well as those restricting processions and meetings once considered detrimental to national security.^{Note 30}

[40] The northern city of XXXXX, from where the claimant hails, feels like a different city compared with a year ago, when residents faced extended curfews and intrusive checks. Shops are open for long hours, cultural programmes have started once again, and tourists from the ethnic majority Sinhalese in the south are coming in numbers to the region.^{Note 31}

[41] The country is now completely centrally governed. For example, some areas of the north that had previously been under the control of the LTTE for decades are now governed by the Sri Lankan governmental authorities.^{Note 32}

[42] This is not to say that Sri Lanka is a flourishing democracy that is responsive to the wishes and desires of its minority Tamil population. As the International Crisis Report states, "The government sees the "reconstruction" of the north as a matter of creating a new north, one that it controls very tightly and that serves its political and security purposes."^{Note 33} Military leaders currently have effective veto power over all important decisions about the treatment and resettlement of the displaced. Pro-government Tamil political parties and armed groups monitor and control the local population.^{Note 34}

[43] Prior to the security and human rights developments outlined above, the United Nations High Commissioner for Refugees (UNHCR) had maintained, even after the end of the civil war, that all Tamil asylum seekers in and from the North should be recognized as refugees under the 1951 Convention, absent clear and reliable indicators that they did not meet the criteria.^{Note 35} With the improved country conditions in Sri Lanka for Tamils, the UNHCR has now changed its position. Its July 2010 Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (UNHCR Guidelines) now concludes:

In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for…a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country.^{Note 36}

In other words, the UNHCR Guidelines now state that generally Tamils from the north of the country are no longer presumptively eligible for refugee protection. In my view, this includes young Tamil males from the north.

[44] The UNHCR Guidelines state that all asylum-seekers should be considered on their individual merits and further, that some individuals with certain profiles require a particularly careful examination of the possible risks they may face.^{Note 37} The UNHCR Guidelines specifically recommend ongoing protection for those persons with the following profiles: persons suspected of having links with the LTTE, journalists and other media professionals, civil society and human rights activists, women and children with certain profiles, and lesbian, gay, bisexual and transgender individuals.^{Note 38} It is worth noting that amoung the profiles the UNHCR has recommended for ongoing protection, young male Tamils are not mentioned.

Well-Founded Fear of Persecution

[45] The claimant has not alleged that he was ever seriously suspected of having links with the LTTE or that he fits any of the other profiles listed in the UNHCR Guidelines. The PIF and the claimant's testimony together demonstrate that the claimant had been detained several times because the SLA wanted to know whether the claimant knew if other Tamil students at his school had links to the LTTE and to verify that the claimant did not have any links with the LTTE.

[46] At the hearing, counsel for the Minister of Public Safety and Emergency Preparedness argued in her submissions^{Note 39} that with the changed circumstances in Sri Lanka, the Sri Lankan government would not target, harass, or do other persecutory acts toward the claimant if he were to return to Sri Lanka since the claimant was not a member or a suspected member of the LTTE.

[47] Counsel for the claimant maintained in his submissions that there are no durable changed circumstances in Sri Lanka. He contended that the evidence suggests that young Tamil men in and from the north of Sri Lanka are still subject to harassment and extortion by the authorities. They are also still disappeared and killed by the government and paramilitary forces. Young Tamil men from the north of the country thus continue to be members of a particular social group who need not show how they will be particularly targeted in the future. They, like the claimant, must only demonstrate that there is more than a mere possibility that they would be subject to persecution.

[48] The Court of Appeal in Yusuf v. Canada^{Note 40} has stated that changed circumstance is a factual determination. There is no separate legal "test" by which any alleged change in circumstances must be measured. The Court went on to state:

The use of the words such as "meaningful", "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s. 2 of the [former] Act^{Note 41}: does the claimant now have a well-founded fear of persecution?

[49] Having considered all the evidence filed in this case, I find that there has been a change of circumstances. Although the National Documentary Package has documents that indicate that Tamils from the north are especially targeted, disappeared, arrested, and tortured, all those documents reflect the circumstances that had existed during and right after the close of the civil war.^{Note 42}

[50] The more up-to-date documents and analyses are more compelling as to the present situation in Sri Lanka.^{Note 43} They indicate that the civil war is over. There has been no LTTE resurgence since the close of the war in May 2009. With the LTTE's utter defeat and the vast majority of Tamils in the country now screened to determine whether they were LTTE members or close associates of the LTTE, Tamils are no longer subject to the persecutory acts that they habitually had suffered in Sri Lanka. Tamils are no longer routinely or sporadically stopped, arrested, rounded up, beaten up, shelled, and extorted by the SLA and other governmental and paramilitary forces. Almost all of the 300,000 Tamils have been released from internment camps and the remaining Tamils still interned are to be released shortly. The evidence leads me to conclude that the changes in Sri Lanka are meaningful and durable and that the claimant's fear of persecution based on his particular social group, perceived political opinion and nationality is not well founded.

[51] I have no doubt the claimant's subjective fear of persecution and other harm is genuine given the 26-year-long civil war and the immediate aftermath of that war, however the major change of circumstances in his country no longer supports the objective basis for his claim.

[52] The claimant's evidence reveals that on several occasions before he left Sri Lanka, the SLA had rounded him up to determine if he had supported, abetted, or even knew of anyone who had supported the LTTE in any way. During those roundups, the government photographed the claimant, examined his identity documents and interrogated him. And after each of these arrests, whether those roundups were community wide or were particularly focused on the claimant, he was released.

[53] I find that the claimant's repeated releases indicate that the government did not seriously consider that the claimant was an LTTE member or that he had any association with them. While he was detained and harassed more than once, the fact that he was always released shows that the authorities did not consider him to be a threat. The claimant was a victim of persecution because he was a young Tamil male, but the actions of the government during the civil war do not support a conclusion that the claimant would be perceived today as someone with links to the LTTE.

[54] I find, on a balance of probabilities, that the Sri Lankan government would not perceive the claimant to be an LTTE member or as having any association or links with the LTTE. His profile therefore does not fit that of "persons suspected of having links with the LTTE" which is referred to in the UNHCR guidelines as being a profile still at risk. I find that there is no serious possibility that the claimant would be persecuted in Sri Lanka and his fear is not well founded.

[55] In the claimant's PIF, he also averred that he was afraid of Tamil students at his XXXXX college who had wanted him to attend LTTE solidarity events.^{Note 44} The claimant testified however, that with the defeat of the LTTE, he no longer has a fear of being recruited into the LTTE or any other fears associated with the defeated LTTE. The claimant no longer has a subjective fear of the LTTE or its supporters.

[56] For all these reasons, I have determined that the claimant is not a Convention refugee.

Person in Need of Protection

[57] Having found that the claimant is not a Convention refugee, I then considered whether the harms allegedly feared by the claimant would amount to a risk to life or a risk of cruel and unusual treatment or punishment, or a danger of torture pursuant to section 97(1) of the Act.

[58] There is no evidence to suggest that the claimant would personally face a risk to life, torture or unusual treatment or punishment if he were to return to Sri Lanka. The claimant fears the government and government paramilitary forces. I have already determined that there is no serious possibility that he is at risk of harm by these government agents. I thus also find that on a balance of probabilities that if the claimant were to return to Sri Lanka that he would not be personally targeted for harm.

[59] Counsel for the claimant also argued in his submissions that Sri Lanka is dangerous due to the security situation and because Tamil business owners are extorted. I find these are risks that would be faced generally by other individuals in or from Sri Lanka. According to section 97(1) (b) (ii) of the Act, protection is limited to those who face a specific risk that is not faced generally by others in or from the country. For this reason, I also find that the claimant is not a person in need of protection.^{Note 45}

[60] Finally, as to the claimant's allegation of possible recruitment into the LTTE or being forced to participate in LTTE related matters, there is no objective basis for this allegation as the claimant himself conceded in his testimony. No reports of extortion, recruitment, disappearances or bombings conducted by LTTE since the end of the war could be found among the sources consulted by the Immigration and Refugee Board of Canada 's Research Directorate which was tasked to investigate this issue.^{Note 46}

[61] Under the circumstances, I find that the claimant is not a person in need of protection pursuant to section 97(1) of the Act.

Compelling Reasons

[62] The first question to determine in considering this issue is whether the claimant would have been a Convention refugee or a person in need of protection when he left his country and when he made his claim in Canada. As a young Tamil male from the north, I find that the claimant would have been determined to be a Convention refugee at the time he left Sri Lanka in XXXXX 2007 and even later when he arrived in Canada on April 19, 2009. However, as stated, I have found that the change in circumstances in Sri Lanka since that time is such that the reasons for which the claimant sought refugee protection have ceased to exist.

[63] The second question is whether refugee protection can be conferred to the claimant as someone who has suffered such appalling persecution or other harm that his experience alone is a compelling reason not to return him to his country of origin, even though he no longer has any reason to fear further persecution or other harm there.^{Note 47} As the Court of Appeal stated in Obstoj,^{Note 48} compelling reasons will be found to apply to only a tiny minority of present day claimants. It is a question of fact based on evidence adduced by the claimant that he is entitled to the benefit of this humanitarian provision.^{Note 49}

[64] The claimant did not argue at the refugee protection hearing that the treatment he experienced in Sri Lanka was so atrocious and appalling that his experience alone is a compelling reason not to return him to Sri Lanka.

[65] The claimant's evidence is that he had been rounded up by the Sri Lankan Army and government paramilitary forces several times while he lived in Sri Lanka. He was detained for one day in 2006. During the 2006 detention and the following week, the claimant was slapped, punched in the stomach, and thrown against a wall. The claimant never sought out medical treatment for his injuries. The claimant's evidence has not demonstrated that the treatment he endured meets the high threshold for the compelling reasons exception to apply.

[66] Having assessed the level of harm inflicted on the claimant, I find that the compelling reasons exception has not been triggered. All persecution by definition involves physical or mental harm or other penalties. What the claimant suffered is not extraordinary or so exceptional that in the wake of changed circumstances, it would be wrong to return him to Sri Lanka.^{Note 50}