TB8-06689

RPD File No. / N° de dossier de la SPR : TB8-06689 Private Proceeding / Huis clos Reasons and Decision ? Motifs et Décision Claimant(s) XXXX XXXX Demandeur(e)(s) d'asile Date(s) of Hearing June 6, 2019 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision July 11, 2019 Date de la décision and reasons et des motifs Panel T. Nicholson Tribunal Counsel for the Claimant(s) Adam B. Sadinsky Conseil(s) du (de la/des) demandeur(e)(s) d'asile Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] The claimant, XXXX XXXX, 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 claimant's allegations are fully set out in his Basis of Claim (BOC) form.2 To summarize, the claimant, who is Tamil, is afraid of Sri Lankan authorities due to an imputed political belief of being a supporter of the Liberation Tigers of Tamil Eelam (LTTE). [3] The claimant worked as a XXXX XXXX in Qatar, and was active in a badminton game amongst fellow Tamil expatriates there. The claimant was introduced to a XXXX, who asked him about job opportunities. While unable to help, the claimant testified he was later asked by XXXX if the two could meet up while they were on vacation in Sri Lanka. The claimant obliged and gave XXXX his home address in Sri Lanka. [4] While the claimant was at his parent's house on vacation in Sri Lanka, he was visited by army officers on XXXX XXXX, 2018, who informed the claimant that XXXX was a member of the underground LTTE. The claimant testified that he was then interrogated and beaten, being held until XXXX XXXX, 2018, after his aunt paid a XXXX XXXX XXXX Rupee bribe to secure his release. [5] The claimant, fearful that his status in Qatar was too temporary for safety, travelled to the United States on a valid visa on XXXX XXXX, 2018, and entered Canada on XXXX XXXX, 2018 under an exception to the safe third country agreement. DETERMINATION [6] Having considered the totality of the evidence, the panel finds that the claimant is not a Convention refugee or a person in need of protection. ANALYSIS [7] The determinative issue was credibility. Identity [8] The claimant was able to provide a true copy of a valid Sri Lankan passport.3 [9] The panel finds that through his testimony and the documentary evidence provided,4 the claimant has established his identity on a balance of probabilities. Countries of Reference [10] The claimant had residency status in Qatar tied to his employment, which the claimant voluntarily left to travel to Canada. [11] The panel does not find that the status in Qatar, which the panel finds to be temporary, gave the claimant the rights and responsibilities of a citizen as the claimant did not have the right to obtain social benefits or to education. The panel finds that Sri Lanka is the only country of reference in the matter. Credibility [12] While the panel is aware of the general presumption of truth of the claimant's testimony, the panel had serious issues with the claimant's testimony regarding key matters that went to the heart of the claim. [13] The claimant testified that during his interrogation, he was kicked and hit with fists. The panel asked if there were any other harms that he was subject to. The claimant indicated there were not. [14] It was indicated to the claimant that his BOC form had indicated that he was hit with a plastic pipe. [15] The claimant responded that this was what he meant when he was hit with a hand. [16] The panel finds it unreasonable that, when it was put to the claimant specifically how he was harmed, that he would not remember the cause of that harm, especially the use of a weapon. [17] The panel rejects the claimant's explanation for the discrepancy with his BOC, and draws a negative inference with regard to his credibility. [18] The claimant, in describing his interrogation by Sri Lankan authorities, testified that he was tied up, and then shown a photo of XXXX, whom he recognized. [19] It was brought to the claimant's attention that in his BOC he had indicated he had been shown XXXX's picture before he was tied up. [20] The claimant then said that he was shown before, and that he was shown subsequently and this is what he had meant when describing the incident. [21] The panel finds it highly unlikely that the claimant would mistake the timing of first seeing the picture of the cause for his internment before his alleged mistreatment at the hands of Sri Lankan authorities began. [22] The panel rejects the claimant's explanation for the discrepancy, and draws a negative inference with regard to the claimant's credibility. [23] Given that the claimant incorrectly described the order of events in the interrogation, and given that the claimant did not describe being hit by a weapon despite his mentioning in his BOC that he was, the panel finds that the detention did not occur. XXXX [24] The panel asked the claimant about his interactions with XXXX. The claimant described a conversation regarding a possible job for XXXX at the claimant's workplace, and then a conversation in which XXXX asked to meet the claimant in Sri Lanka. The claimant said he had no contact with XXXX other than this. [25] The claimant then, despite only having two conversations of substance with XXXX, testified that XXXX wanted to travel approximately120-130 km to see the claimant in Sri Lanka. [26] The panel asked why the claimant had agreed to this. The claimant indicated that he was merely being polite, and that he never thought XXXX would ever come. [27] The claimant provided a variety of photographs of the badminton group.5 When asked if XXXX was pictured, the claimant testified that none featured XXXX. [28] The claimant provided two letters purporting to be from members of the badminton group.6 The claimant testified that the knowledge of these letters was primarily from him, given that they focus on events that occurred after the claimant left Qatar. Neither letter provides details relating to the relationship between the claimant and XXXX, or the reason why they would meet in Sri Lanka, despite including other details regarding the case that occurred outside of their knowledge. The panel gives the letters little weight in its analysis. [29] It was put to the claimant that in his interview with immigration authorities, he did not mention that XXXX planned to visit him in Sri Lanka or XXXX' sister's welding, and only mentioned that XXXX had the claimant's telephone number on his telephone. [30] The claimant testified that he had mentioned this at some point to immigration authorities, and may not have mentioned this to immigration authorities in the interview because they wanted him to be brief in his answer. [31] The panel finds it unlikely that the claimant, who is well-educated and sophisticated, would not have mentioned the reason that his contact information was in XXXX's phone to Canadian authorities, given that it was the main reason he was detained in Sri Lanka [32] The panel rejects the claimant's explanation, and draws a negative inference with regard to his credibility. [33] Given his inability to provide a clear substantiation of his relationship with XXXX, the claimant's previous issues with credibility, the panel finds that the claimant has not established, on a balance of probabilities, that XXXX had agreed to meet the claimant in Sri Lanka or that he had given XXXX his address, which was the claimant's stated cause of his detention. Subjective Fear [34] The claimant was asked why he had fled to Canada, instead of going back to Qatar, where he had a job and what he confirmed was an indeterminate status at work. [35] The claimant responded that he was generally unsure about future job prospects in Qatar and thought his status could be revoked at any time. [36] The panel finds it unlikely that the claimant, if he had a subjective fear of being persecuted in Sri Lanka, would immediately go to the expense and risk of travel to Canada when he had a job and a legal status awaiting him in Qatar. [37] The panel rejects the claimant's explanation, and draws a negative inference with regard to the claimants' credibility and his subjective fear. Other Evidence [38] The claimant provided an English-language affidavit from his aunt.7 [39] The claimant was asked if his aunt was fluent in English. He responded she did not speak English, but could probably understand a little. [40] The affidavit read, "The contents of the forgoing affidavit were read over and explained by me in Tamil to the affirm, who understood and placed her signature in front of me in the City of XXXX, on this day XXXX XXXX XXXX, 2019". [41] The panel had a number of issues with this. The affidavit provides no indication of the lawyer's knowledge of English, or his ability to interpret. It does not state it was interpreted, and only that the claimant "understood" and signed the document. [42] The claimant did not know whether the lawyer was an interpreter or not. [43] To benefit from a presumption given to sworn evidence, the panel must be satisfied that the affiant understands what was put to her. The panel, given the claimant's testimony, is not satisfied that this was the case. [44] The panel finds that, given the above issues, the panel is unaware if the claimant's aunt knew what she was swearing. The panel gives the affidavit little weight as evidence. Summary [45] Given that the panel has found that the main incident of persecution did not occur and that XXXX's address has been found not to have been given to the claimant, elements the panel finds that go to the heart of the claimant's claim, as well as the panel's concerns regarding the other documentary evidence provided and the claimant's apparent lack of subjective fear, the panel finds that the claimant has not established that any of the events he described had occurred, given that the events were connected to the claimant's alleged detention. STATUS AS A REFUGEE CLAIMANT [46] Objective evidence indicates that some persons, mainly Tamil males, are subject to screening and questioning at Sri Lankan airports upon return.8 Objective information indicates that screening and arrests are typically for the purposes of either establishing the former claimants' identity (to be sure there is no prior criminal involvement), and that incidents relating to torture of returning refugee claimants are typically a risk only to those suspected of membership or involvement in the LTTE.910 [47] With regard to the claimant's profile, the panel did not accept that the claimant was detained, and thus does not find it likely that he is believed to be an LTTE supporter or member and would not face differential treatment in this regard. [48] The claimant would also return with a valid passport, with a valid embarkation stamp,11 having left Sri Lanka while on vacation from an indefinite contract in Qatar. The panel does not find it likely that the claimant would face issues upon arrival in Sri Lanka. [49] The panel thus does not find that he would face a serious possibility of persecution, or face a danger of torture or of cruel and usual treatment or punishment, based on his residual profile or as a failed refugee claimant from Sri Lankan authorities. CONCLUSION [50] The panel finds that the claimant does not face a serious possibility of persecution in Sri Lanka on the basis of a Convention ground, or that, on a balance of probabilities, he faces a risk to his life or of cruel and unusual treatment or punishment, or of torture. [51] The panel rejects the claim. (signed) "T. Nicholson" T. Nicholson July 11, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1). 2 Exhibit 2. 3 Exhibit 1. 4 Exhibit 5. 5 Exhibit 7, pages 37-43. 6 Exhibit 7, pages 20-24. 7 Exhibit 7, pages 24-27. 8 Exhibit 3, National Documentation Package (NDP) for Sri Lanka (March 29, 2019), item 1.13, ss. 5.17 - 5.28. 9 Ibid., item 1.4, s. 12.2. 10 Ibid., item 1.5, s. 4.7.3. 11 Exhibit 1, claimant's passport issued XXXX XXXX, 2016, page 13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.29.1 (August 31, 2012) RPD File No. / N° de dossier de la SPR : TB8-06689