Tamils likely safe from persecution in Sri Lanka, IRB says

Your life is not in danger just because you’re a Tamil who has been sent back to Sri Lanka, says a new policy introduced by Canada’s Immigration and Refugee Board.


The “persuasive decision,” a note aimed at maintaining consistency in IRB rulings, said meaningful changes in Sri Lanka suggest Tamils – particularly young males – won’t be persecuted because of their social group or political opinions.

Although refugee board adjudicators aren’t forced to follow the new guideline, the IRB said such notes “are offered to members as models of sound reasoning that may be adopted in appropriate circumstances.”

The policy, which could affect refugee claimants who arrived in Canada aboard the Ocean Lady and MV Sun Sea, is being challenged in court by a lawyer who says it is not legally sound. The note was also criticized by activists, who suggested it could put lives in danger.

The IRB’s decision was released last month, just before the holidays. Persuasive decisions derive from individual cases that are identified as being of persuasive value in developing guidelines.

The case cited in the new IRB policy involved a 25-year-old Tamil male from Sri Lanka. (He did not arrive in Canada on either of the high-profile boats.)

The claimant told the refugee board that “he has been and will be persecuted by the Sri Lankan army, government officials and paramilitary agents associated with the Sri Lankan government if he returns to Sri Lanka.”

The claimant said he was arrested by Sri Lankan forces in 2006, interrogated, hit in the stomach and pushed against a wall. He moved to a different area with a friend soon afterward, but was stopped by government forces the next year. He said his friend was eventually executed. The claimant fled to Malaysia in 2007 before arriving in Canada in 2009.

The IRB, an independent administrative tribunal, rejected his refugee claim in November. It was cited in the persuasive decision four weeks later.

“The claimant is not a person in need of protection in that his removal to Sri Lanka would not subject him personally to a risk to his life,” the refugee board adjudicator said in the ruling. The IRB pointed to improvements in the country’s human-rights situation, among other factors.

The persuasive decision said protection is limited to those who face a specific risk that is not faced generally by others in or from the country.

Lorne Waldman, a Toronto lawyer, has filed an application with the Federal Court of Canada for leave to seek judicial review of the persuasive decision. “What’s before the court is whether this decision is legally sound,” he said, declining to comment further.

Daniel McLeod, a Vancouver lawyer who has represented many of the recent Tamil migrants, said the decision appeared to be politically motivated. He accused Ottawa of trying to stymie Tamil refugees at a time when the number of claims is high.

“I’m particularly concerned about the so-called finding that young Tamil males from the North and East are no longer at risk, which is contrary to past Federal Court decisions,” Mr. McLeod said. “I think that, frankly, the evidence that was cited does not support that conclusion.”

David Poopalapillai, a spokesman for the Canadian Tamil Congress, echoed those concerns and called the persuasive decision a “worrisome development.” He wondered how the IRB could argue the situation in Sri Lanka has improved so greatly since the country’s civil war ended in 2009.

Melissa Anderson, an IRB spokeswoman, said the decision “reflects the fact that changed conditions in the country of alleged persecution have an impact on the determination of whether or not a claimant faces a serious possibility of persecution.”

Ms. Anderson added each refugee claim, including those made by Tamils from Sri Lanka, is determined on its own merits by applying the law to the facts of the particular claim. – (The Globe and Mail)