E. (E.Y.) (Re) Immigration and Refugee Board

Sri Lanka (LKA) — Positive — Males — Arbitrary arrest and detention — Nationality — Persecution for nationality — Persecution for political opinion — Social group persecution.

Appearances:

Max Berger, for the claimant(s).

Stephen Gold, Refugee Hearing Officer.

REASONS FOR DECISION

This is the decision of the Refugee Division concerning the claim of xxxxxxxxxxxxxxxxxxx to be a Convention refugee. The hearing was held on the 21st of February 1990. It was adjourned on that day and resumed on the 6th of June 1990. The hearing was held in the presence of the claimant in accordance with section 69.1 of the Immigration Act [As enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 18]. The claimant was represented by Max Berger, Barrister and Solicitor. The panel was assisted by Mr. Stephen Gold, a Refugee Hearing Officer. Translation in the Tamil language was provided.

The panel had the benefit of extensive documentary evidence as well as the testimony of the claimant.

Mr. xxxxxxx is a citizen of Sri Lanka. He was a resident of Kokuvil in the Jaffna area of the northeastern province. In August 1983, he was detained in a roundup conducted by the Sri Lankan Army (SLA) in response to attacks on army forces by Tamil militants. The claimant was taken to Jaffna Fort Camp where he was beaten and questioned. After his release, the SLA came to the claimant’s home but the claimant was absent at the time. In May of 1984, the claimant was forcibly taken for indoctrination and training by the People’s Liberation Organization of Tamil Eelam (PLOTE). He was held in the PLOTE camp in Chithankeny. During the first eleven months, the claimant was not allowed to leave the PLOTE camp. He gave a detailed description of the daily life in the camp. In April 1985, he was allowed to visit his family but was accompanied by members of the PLOTE and returned with them to Chithankeny. Security in the camp grew lax and in December 1985 the claimant and others who were disaffected with PLOTE and life in the camp escaped. The claimant testified that members of PLOTE came to his home on several occasions searching for him. In January 1986, the claimant was detained and questioned by another Tamil group whom he believes to have been the Liberation Tigers of Tamil Eelam (LTTE). During the interrogations, the claimant sustained injuries [Exhibit C-12 – Medical Report]. In the months that followed, the claimant avoided contact with PLOTE, SLA and LTTE by moving about and staying with various friends and relatives. In July 1987, the Indian Peace Keeping Forces (IPKF) came to Tamil areas of Sri Lanka. In October 1987 conflict between the IPKF and LTTE escalated. A visit of an LTTE leader to the Kokuvil area came to be known to the IPKF. The area was shelled by the IPKF. The residents of the area fled. The home of the claimant was damaged [Exhibit C-11 – Photocopy of Damage Report].

In March of 1988, the claimant moved to Colombo where he worked as a clerk in a grocery store. In April of 1988, the claimant was arrested in a roundup by police. Such roundups were frequent and were often occasioned by terrorist activities in Colombo and elsewhere. Police conducted roundups of young Tamil males. The claimant in his Personal Information Form and oral testimony linked this particular roundup with the assassination of two prominent Tamils – A. Amirthalingam and Mr. Yogeswaran.

The claimant did not say that he was questioned about these deaths while in custody. Documentary evidence shows that the men in question were assassinated in July 1989 [Exhibit C-5 – “Sri Lanka Falling Apart”, India Today, Sept. 30, 1989, Page 24]. The claimant was released after one week. He decided that the south (Colombo) was no safer than the north of Sri Lanka and decided to leave Sri Lanka. It took him approximately a year to arrange and effect his departure from Sri Lanka in September of 1989.

The Immigration Act in section 2(1) [As enacted by R.S.C. 1985(4th Supp.) c. 28, s. 1] defines a Convention refugee to be any person who:

1. by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

1. is outside the country of the person’s nationality and is unable or by reason of that fear, is unwilling to avail himself of the protection of that country…

Mr. xxxxxxx bases his claim on grounds of nationality, membership in a particular social group and political opinion.

Since Mr. xxxxxxx left Sri Lanka there have been a number of changes in the political and military situation. The IPKF has been withdrawn from Sri Lanka [Exhibit R-9 – Article from International Affairs entitled “It Was Us or Them”]. The LTTE has become the effective ruling force in the Tamil areas of Northern and Eastern Sri Lanka [Exhibit R-8 – News Article entitled “Old Tigers in New Skins”]. The political arm of the LTTE is preparing to contest regional elections and it is conceded that they will win the elections [Exhibit R-8 – News Article entitled “Old Tigers in New Skins”]. The government of Sri Lanka is in dialogue with the LTTE and other elements in the Tamil community [Exhibit R-7 – Article from International Affairs entitled “Indians Exit, Tigers Return”]. There are questions as to whether the claimant would face a serious risk of persecution were he returned to Sri Lanka and whether such risk would be linked with one or more of the grounds of the definition. The panel is of the opinion that the mere fact that the claimant is a young Tamil male would not of itself place the claimant at significant risk. Though the tensions between the two ethnic communities in Sri Lanka still persist, serious efforts to find a peaceful political solution are underway. However, there are elements in this claim that take it beyond the generalized situation. There is significant evidence that the LTTE is in the process of consolidating its power in the Tamil community. One aspect of this process has been the effort to destroy or suppress any rival groups in the Tamil community. The LTTE is waging a military campaign against these other groups [Exhibits R-9 and R-10 – article from International Affairs entitled “It Was Us or Them”]. One of the groups is PLOTE. Mr. xxxxxxx has testified that he was forcibly recruited by PLOTE in 1984 and was a member of PLOTE for a year and a half. His departure from the PLOTE ranks was a unilateral decision and PLOTE continued to consider him one of their members. There is some likelihood that the LTTE would be of the same mind. They showed an interest in Mr. xxxxxxx in January of 1986. The claimant took measures to avoid contact with the LTTE, PLOTE and other groups. Now that the LTTE is free of its struggle with, first, the SLA and then later, the IPKF, it is quite possible that persons with known or suspected affiliations with rival Tamil groups could be targeted by the LTTE. And, given the methods employed by the LTTE, Mr. xxxxxxx would be at risk. Even his absence from Sri Lanka might be negatively interpreted by the LTTE. Some of the members of rival Tamil organizations have fled from Sri Lanka and have found sanctuary and support abroad.

The panel, therefore, concludes that the claimant, xxxxxxxxxxxxxxxxxxx, might experience persecution at the hands of the LTTE because of his past membership in PLOTE and the political opinion attributed to such membership. We, therefore, conclude that xxxxxxxxxxxxxxxxxxx is a Convention refugee.

DATED at Toronto, this 13th day of September, 1990.

“John Haley”
Concurred in by: “Stephen Ng”