TB6-06413

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 : TB6-06413 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 July 13, 2016 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Barrister & 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) claims that he is a citizen of Sri Lanka. He appeals the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not tendered new evidence in this appeal. The Appellant asks that the RAD set aside the decision and substitute a determination that he is a Convention refugee or, in the alternative, refer the claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. His appeal is denied. Background [3] The Appellant alleged before the RPD that he is a citizen of Sri Lanka and an ethnic Tamil. He fears the Sri Lankan authorities and paramilitary groups because they perceive him to have ties to the Liberation Tigers of Tamil Eelam (LTTE). [4] The Appellant's refugee determination hearing was held over two sittings on November 16, 2015 and January 14, 2016. In a written decision of April 18, 2016, the RPD rejected the Appellant's claim finding that the Appellant's allegations were not credible and that there was insufficient credible or trustworthy evidence to establish his claim. [5] The Appellant submits that the RPD erred in drawing its credibility findings and in its treatment of his supporting documents. The Appellant also submits that the RPD erred by failing to conduct an assessment of his risk of return as a failed refugee claimant. ROLE OF THE RAD [6] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 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. [7] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. [8] The Appellant submits that correctness is the appropriate standard of review but argues that deference cannot be afforded to the RPD's credibility findings. The RAD cannot agree. The RAD finds that the jurisprudence allows the RAD to afford deference to the RPD's credibility findings in specific circumstances on a case-by-case basis where the RAD finds that the RPD is better positioned to draw those findings. ANALYSIS OF THE MERITS OF THE CLAIM Contested Credibility Findings Inconsistency in the Account of Assisting Persons to fill out UNHCR Forms [9] The Appellant alleged in his Basis of Claim (BoC) narrative that he was arrested, detained and beaten by police after they discovered him assisting others to complete their UNHCR forms. He alleged that the police were convinced that he was assisting the LTTE. He alleged that, after his release from detention, he went into hiding and that the authorities were searching for him. The RPD found that the Appellant's testimony in this regard was inconsistent with his BoC narrative. The RPD made several attempts to solicit an explanation for the contradiction; however, the Appellant could not provide a reasonable explanation which addressed the inconsistency. The RPD found, on that basis, on a balance of probabilities, that the events connected to the Appellant's allegation did not occur. The RPD further found that the Appellant was not detained by the police, did not go into hiding and is not being pursued by the authorities. [10] The Appellant admits that there is no doubt that his BoC and oral evidence were contradictory and that he was unable to provide an explanation. He submits, however, that the evidence is nuanced, and it is plausible that here might have been a misunderstanding regarding the exact sequence of events. He argues that, although his oral testimony was inconsistent with his BoC narrative, his oral testimony was consistent. The Appellant implies that the BoC contained incorrect facts and that the RAD ought to give him the benefit of the doubt for the errors in the BoC. [11] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the RPD noted that the Appellant provided a very confusing account of the third day on which he provided assistance to persons to complete their UNHCR forms which was inconsistent with his BoC. He was asked several times to explain the inconsistency between his oral testimony and his BoC form. The RPD notes that the Appellant ultimately stated that the account which he provided in oral testimony was the account that he had provided for the preparation of his written narrative. [12] The RPD found that his explanation was not credible, on the balance of probabilities. First, the RPD noted that, despite several attempts to seek an explanation, the one provided was circular and did not squarely address the inconsistency, in that he alleged to have provided the oral account when his BoC was prepared, but the oral account is not reflected in the BoC. Secondly, the RPD noted that the Appellant endorsed the information in his BoC form as being complete, true and correct. He repeated this affirmation at the hearing, before his BoC form was entered as an exhibit. Thirdly, despite having made amendments to his BoC, he did not make a change to the account of the events in question to be consistent with his oral testimony. [13] The RAD finds no reason why it should not afford deference to the RPD's credibility findings in this regard. The RPD observed the Appellant's testimony which led to the identification of the inconsistency. The RPD heard the Appellant's explanation and provided its rationale for disbelieving that explanation. The RAD finds that the RPD was well positioned to assess the Appellant's credibility on his issue. Regardless of whether deference is afforded to these findings or not, after its own review and assessment of the evidence, the RAD agrees with the RPD's findings and would have come to the same conclusions on this evidence. Inconsistency and Omission about Persons searching for the Appellant [14] The Appellant alleged in his BoC narrative that, following his arrest and detention, three persons-one in army uniform and two in civilian clothing-went to his home to enquire about him. The RPD noted that no specific date was provided in the BoC regarding when this incident occurred. Noting that instructions are provided in the BoC form to set out events chronologically ending with the newest, the RPD found that the Appellant's BoC narrative reads as though the incident occurred when he was in Sri Lanka. The RPD noted, however, that the Appellant testified that he was in Mexico in September 2014 when three men went to his home in Sri lanka looking for him. The RPD noted the inconsistency and questioned the Appellant as to why he had not simply mentioned so in his narrative account. The RPD noted that the Appellant did not give a direct response, but simply replied that his father told him about this incident while he was in Mexico. [15] The Appellant submits that the RPD was microscopic in its findings in this regard. He argues that the difference with his oral testimony was merely an elaboration of the information in his BoC narrative and that this should not impugn his credibility. [16] The RAD is not persuaded by the Appellant's arguments in this regard. The RAD notes that the RPD's finding in this regard was not made in isolation but was made in the context of the its further findings that the Appellant omitted from his BoC allegations that these men told his father that he was to present himself to the XXXX XXXX XXXX (military camp). The Appellant explained that he must have missed this fact in his BoC narrative. The RPD found his explanation for the omission of this significant fact was not credible. First, the RPD noted that Appellant had endorsed his BoC as being complete, true and accurate; and, secondly, he had made amendments to his BoC narrative at the outset of the hearing indicating that he had reviewed his narrative prior to the hearing. [17] The RAD notes that the Appellant has not contested this aspect of the RPD's findings in relation to his allegation that authorities attended his home in search of him. The RAD agrees with the RPD and finds that, when considered in context to one another, these findings undermine the Appellant's allegations that authorities in Sri Lanka went to his home looking for him. Lack of Credibility of Fearing Military Groups on Return [18] The RPD found the Appellant's testimony about whom he feared on his return to Sri Lanka. The RPD noted that the Appellant's testimony of whom he feared was inconsistent with his BoC narrative and evolved through the course of his testimony. Although he alleged in his BoC and his oral testimony that he feared militant groups in Sri Lanka, he later testified that he would not have problems with militant groups. The RPD also noted that he provided inconsistent and vague testimony about which groups with whom he previously encountered problems. [19] The Appellant submits that the RPD erred in this finding because his fear at the time of the hearing was based on circumstances which would exist in Sri Lanka at the time of his return. He argues that, given the changing and dynamic circumstances which exist in Sri Lanka, the security situation in Sri Lanka remains unstable, and it was unfair for the RPD to draw an adverse credibility finding on this basis. He further argues that the RPD erred by failing to evaluate the risk from paramilitary groups, in particular, the Karuna group. He argues that he would be vulnerable to an accusation of LTTE support as a returnee from the diaspora. [20] The RAD is not persuaded by this argument. The RAD notes that the Appellant initially testified that he feared the militant paramilitary groups but later testified that he did not fear them. The Appellant's arguments fail to explain the inconsistency identified. In fact, the arguments tend to support the fact that he ought not to have testified that he did not fear the militant groups. The RAD finds that this finding undermines the credibility of the Appellant's allegations of arrest and detention by Sri Lankan authorities and further undermines his general credibility. Treatment of the Appellant's Supporting Documentary Evidence Failure of the RPD to Consider the Letter from the Appellant's Wife [21] The Appellant submits that he tendered a letter from his wife, which corroborated his detention by the army in 2007, 2009 and 2014. He argues that the RAD ought to consider the letter credible and, if not, it should order that the claim be returned to the RPD. [22] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that, while it is unfortunate that the RPD did not specifically mention the letter in its Reasons, it does not mean that it did not consider the letter. The RAD notes that the RPD found that the documentary evidence submitted by the Appellant to support his allegations of arrest and detention by authorities in Sri Lanka did not assist to allay the credibility concerns identified. Although it would have been preferable for the RPD to have specifically mentioned the letter in its Reasons, the RAD finds, after its own review and assessment of the evidence, that there is reason to agree with the RPD's finding. [23] The RAD notes that the letter purportedly written by the Appellant's wife was unaccompanied by any identification to verify the author of the letter. The RAD further notes that the letter does not state that the Appellant's wife had independent knowledge of the events alleged in the letter, whether she was present when they occurred, or how she came to acquire the information she attests to in the letter. The RAD finds the absence of an explanation to establish the source of the information she is attesting to undermines the reliability of that evidence. The RAD finds that, in light of the foregoing and in the context of the totality of the adverse credibility findings previously noted, the RAD agrees with the RPD and finds that this letter does not overcome the significant credibility findings in this claim. Householder Lists [24] The Appellant tendered householder lists for his family. The Appellant testified that, sometime after he left Sri Lanka on XXXX XXXX, 2014, his parents and siblings moved into the home of his wife's parents; however, he tendered a householder list for his family, which showed that they reside in their family home. The Appellant explained that he had not telephoned his family to ask for an updated one, and at second sitting of the hearing, he provided an updated householder list to support that his parents and siblings moved to another residence.2 The RPD expressed concern about the reliability of the updated document in that it was obtained because of the concern that the RPD raised, "rather than to having been obtained in the ordinary course of having changed one's residence". [25] The Appellant submits that there is no basis to find that the householder list is not credible. The RPD appears to reject the list but provides insufficient reasons to justify its "concerns". [26] The RAD finds that the Appellant's argument has merit. The RPD failed to provide adequate reasons for rejecting the list. Notwithstanding the foregoing, the RAD finds that there is reason to given the list little weight in establishing the Appellant's allegations. The fact that the Appellant's family and in-laws are all residing in the same residence does not in itself establish that they did so as a result of the circumstances alleged by the Appellant. The RAD finds that little weight can be given to these documents in establishing the allegations of the Appellant. The RAD further finds that these documents do not overcome the totality of adverse credibility findings in this claim. Blank UNHCR Form [27] The Appellant tendered a blank UNHCR document to support his allegation that he helped persons to complete such forms in Sri Lanka. The RPD found that the document did not support his allegations because it was simply a blank document and that it bore no indication of it being linked to the UNHCR. Furthermore, the RPD found that, even if it could find it to be a document "released by the UNHCR", then the document would more likely than not be publically available. [28] The Appellant submits that the RAD ought to consider that the form corroborates part of the constellation of facts that support his allegations. The RAD finds, after its own review and assessment of the evidence, that the blank form does little to corroborate the Appellant's allegations. His possession of this document, even if it is a genuine UNHCR document, does not corroborate that he assisted others to fill out such forms. Little weight can be given to this document in supporting his allegations in this regard. Risk to Returnees [29] The Appellant submits that, in assessing his residual profile, the RPD failed to consider his risk as a failed asylum seeker. The RAD finds that the RPD's failure to address the issue of risk to the Appellant as a failed refugee claimant upon return to Sri Lanka in its reasons, while problematic, is not fatal to its decision. The RAD finds that counsel for the Appellant raised this issue in his submissions to the RPD. While it is true that the RPD did make the definitive finding that the Appellant would not face persecution or a personal risk to his life or a risk of cruel and unusual treatment or punishment or face a danger of torture, should he return to Sri Lanka today, it is unclear from its Reasons that the RPD considered counsel's submissions on his risk arising from his status as a failed refugee claimant. [30] However, the RAD has considered whether the Appellant's profile as a failed asylum seeker, should he be returned to Sri Lanka, would attract negative attention from Sri Lankan authorities and whether that attention would be the basis of a well-founded fear of persecution. [31] The RAD has considered whether the Appellant might be at risk of repercussions if he were to return to Sri Lanka. The panel acknowledged that the documentary evidence with respect to returnees is mixed, but it notes that Tamils are subjected to the same screening process as all persons returning to Sri Lanka, whether the return is voluntary or as the result of a failed refugee claim.3 [32] The RAD notes that a number of Federal Court decisions have stated directly or by implication that merely being a Tamil does not result in the conclusion that the person is at risk of persecution. In Velummayilum,4 the Court stated that, although the risk of persecution for a Tamil not found to have links to the LTTE was always present, it was no more than a mere possibility. The RAD further notes that the UNHCR, as noted above, has stated that there is no longer a need for a group-based protection mechanism or for the presumption of eligibility of Sri Lankan Tamils originating in the north of the country. [33] The RAD notes that the Appellant has testified that he had no connections with the LTTE. The RAD further notes that his allegation of Sri Lankan authorities suspecting him of such connection has been found to be not credible. The RAD notes, in the context of credibility findings above, that there is no basis that Sri Lanka authorities would believe that the Appellant has any link to the LTTE, the primary basis for concern by Sri Lanka security officials. [34] The RAD has reviewed the risk profiles listed in the 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka and finds that the Appellant does not fit any of the risk profiles. In addition to not being suspected of links to the LTTE, there is no evidence that the Appellant is a political or human rights activist or an opponent of the government.5 [35] The RAD acknowledges that the NDP indicates there is increased risk of possible detention if a person has illegally exited Sri Lanka. The RAD further notes that country documentary evidence also mentions several aggravating factors which may lead to detention such as a past criminal record, connection with the LTTE, involvement with media or non-governmental organizations (NGOs) and lack of identity documents.6 [36] The RAD finds, in the context of its credibility findings noted above, that although the Appellant has alleged he left Sri Lanka illegally, he has not shown with probative evidence that he departed Sri Lanka illegally. The RAD further notes that the Appellant's profile does not include any of the other aggravating factors. [37] The RAD finds that the Appellant's return to Sri Lanka as a failed asylum seeker would not attract persecutory attention from Sri Lankan authorities. The RAD further finds, in the context of the totality of evidence, findings and analysis noted above that there is only a mere possibility that the Appellant would be targeted by authorities if he were to return to Sri Lanka. CONCLUSION [38] The RAD agrees with the RPD and finds, based on the totality of the evidence, that the Appellant has not established that there is a serious possibility that he would be persecuted in Sri Lanka or that, on a balance of probabilities, he would be personally subjected to a danger of torture, or face a risk to life, or to a risk of cruel and unusual treatment or punishment in Sri Lanka. [39] The RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection. [40] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division. (signed) "L. Favreau" L. Favreau July 13, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD's Record, p. 973, Exhibit 15. 3 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for Sri Lanka (July 17, 2015), item 14.5, Response to Information Request (RIR) LKA104245.E, 12 February 2013. 4 Velummayilum, Thayaparan v. M.C.I. (F.C., no. IMM-11121-12), Harrington, July 3, 2013, 2013 FC 742. 5 Exhibit RPD-1, RPD's, Record, NDP for Sri Lanka (July 17, 2015), item 1.5, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012. 6 Exhibit RPD-1, RPD's, Record, NDP for Sri Lanka (July 17, 2015), item 14.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-06413