TB5-07695

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-07695 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 8, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ian Wong Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of Sri Lanka, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find he is a person in need of protection or in the alternative refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that he and his family were displaced in XXXX 1995 following the capture of Jaffna by the Sri Lankan army. They eventually returned to their village in Jaffna to find their home and farm badly damaged. In 2000, the Appellant was used by the Sri Lankan army as a human shield against the Liberation Tigers of Tamil Eelam (LTTE) on many occasions. Following the peace talks in 2002, the Appellant experienced no significant difficulties until 2007. At that time, he alleges his father was forced by the LTTE under threat of violence to XXXX XXXX from landowners. He alleges he began to have problems with the Sri Lankan army and was detained and assaulted by them on many occasions. After his last detention in 2015, his family decided he should leave Sri Lanka. Using the services of a smuggler the Appellant traveled to Malaysia and then traveled to Canada. He fears that, if he returns to Sri Lanka, he will be detained and potentially killed by Sri Lankan authorities. [4] The Appellant's application for refugee protection was heard on June 24, 2015. In a decision of July 7, 2015, the RPD rejected the Appellant's claim finding that the Appellant was not credible. [5] The Appellant submits that the RPD made an unsustainable finding that the Appellant did not fit the profile of an individual at risk in Sri Lanka. ROLE OF THE RAD [6] The Appellant has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision in Huruglica1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [7] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [8] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD make an unsustainable finding that the Appellant did not fit the profile of an individual at risk in Sri Lanka? [9] The RAD notes that the RPD drew a number of adverse credibility findings based upon multiple discrepancies and omissions in the Appellant's testimony concerning the detentions and abuse he alleges he suffered at the hands of the Sri Lankan Army. The RPD found significant contradictions between his testimony, his Basis of Claim (BoC) narrative and the Generic Application Form (IMM 5669). The RPD found that the Appellant lacked credibility with respect to significant incidents that he alleges occurred in Sri Lanka and that the numerous contradictions and omissions in his testimony undermined his generally credibility. The RPD went on to find that the Appellant was not detained by Sri Lankan authorities, as he has alleged, and that he attempted to embellish his written and oral testimony to enhance his claim. After its own review and assessment of the evidence in the record the RAD agrees with the RPD's findings in this regard. [10] The RAD also notes that the Appellant does not specifically contest these credibility findings in his pleadings. The Appellant does indicate that he provided an explanation for the inconsistences but does not argue why that explanation should be accepted by the RAD. The RAD notes that the RPD rejected the explanations provided by the Appellant at the hearing and provided sound rationale for doing so. After its own review and assessment of the evidence in the record, including the Appellant's testimony, the RAD agrees with the RPD's decision to reject the Appellant's explanation. [11] The Appellant does argue, however, that in finding that he embellished his claim, by definition; the RPD has accepted some elements of his evidence as credible and trustworthy. The Appellant argues that, in his view, this would include his Tamil ethnicity as well as the fact that he and his family suffered "systemic acts of persecution" including being forcibly relocated, used as human shields and forced to do manual labour for the Sri Lankan Army. [12] The RAD is not persuaded by the Appellant's argument in this regard. Although the RPD has found that the Appellant is a Tamil male, the RPD found that the Appellant's general credibility has been undermined and that he is lacking credibility on the significant events he alleges occurred in Sri Lanka. The RAD finds that a finding that the Appellant embellished his testimony in this regard does not suggest that the RPD found some of his allegations of abuse in Sri Lanka credible; rather, the RAD finds that it suggests that none of his allegations of abuse can be relied upon to be credible. [13] Regardless, the RAD finds that the Appellant has failed to establish how these historical incidents, which he alleged occurred at a time of war in Sri Lanka establishes his risk of persecution in a post-war Sri Lanka. The RAD notes the basis of his alleged risk in retuning to Sri Lanka is his allegations that he has been repeatedly detained beaten and threatened with death by the Sri Lankan Army since 2009. Those allegations have been found not credible. [14] The Appellant submits that central to his claim is his allegation that his father had been forced to XXXX XXXX from landowners on behalf of the LTTE and that, as a consequence of his father's situation, he came under a cloud of suspicion. The Appellant argues that the RPD does not reject his consistent and uncontradicted evidence that his father had been forced to XXXX XXXX and that, as a result, he was perceived by the Sri Lankan army to be a supporter of the LTTE. [15] The Appellant further argues that the RPD acknowledged that Sri Lankans with certain profiles continue to be at risk in their country and that this included LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE, and persons with family links or who are dependent or otherwise closely related to persons with the above profiles. Accordingly, the Appellant argues that he falls with the definition of a person with a profile to put his life at risk if returned to Sri Lanka and that the RPD's finding is unsustainable. [16] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the RPD found in its reasons that the Appellant is not credible regarding the key and pivotal elements of his claim. [20] While the panel certainly agrees that perceived association with the LTTE may be a sufficient basis to place a person at risk of persecution, the panel is unable to conclude that there is more than a mere possibility that the claimant was viewed or perceived thusly by any of the alleged agents of persecution when he departed from Colombo in April 2015. [21] Therefore, the panel finds, on a balance of probabilities, that the claimant is not credible regarding the key and pivotal elements of his claim. As a result, the panel gives no probative value to the allegations made regarding the pursuit and potential persecution by authorities should he return to Sri Lanka, or his fear of return to Sri Lanka because the authorities would pursue, arrest or persecute him. With regard to the issues discussed above, no credible evidence was adduced that would substantiate such a fear.3 [17] After its own review and assessment of the evidence in this appeal, the RAD agrees with the RPD's findings in this regard and further finds that these findings extend to the Appellant's allegations that his father XXXX XXXX on behalf of the LTTE and that, as a result, he was perceived to be a supporter of the LTTE. [18] The RAD notes that the RPD went on to find in its reasons that the evidence the Appellant provided with regard to his father XXXX XXXX on behalf of the LTTE was undermined by his lack of credibility and that there was insufficient persuasive evidence to establish that he is perceived or would be perceived to be a LTTE supporter. [27] Furthermore, given the credibility findings and the fact that the claimant himself in his oral testimony denied any previous association with the LTTE, the panel finds, on a balance of probabilities, that the claimant had no association with the LTTE. The claimant testified that his father was XXXX XXXX XXXX XXXX XXXX from the EPDP; however, due to the panel's finding on the claimant's lack of credibility, the panel finds that the claimant has not provided any persuasive evidence that he would be perceived to be a supporter of the LTTE or any other political group.4 [19] The RAD further agrees with the RPD's uncontested finding that it is reasonable to expect that, if the Appellant was perceived to be a supporter of the LTTE, he would not have been able to pass through security checkpoints when leaving Sri Lanka. For these reasons, the RAD agrees with the RPD that the Appellant has not provided sufficient credible or persuasive evidence to establish that he fits the profile of an individual that would be at risk in Sri Lanka. [20] The RAD also agrees with the RPD's analysis of the objective evidence with regard to the Appellant's risk of return to Sri Lanka as a failed asylum seeker and finds that the Appellant would not be at risk upon his return to Sri Lanka as a failed asylum seeker. CONCLUSION [21] The RAD finds on the basis of the totality of the evidence that there is not a serious possibility that the Appellant would be persecuted in Sri Lanka or that he would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture. [22] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. (signed) "L. Favreau" L. Favreau September 8, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014, 2014 FC 952. 3 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, p. 7. 4 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, pp. 9-10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07695