TB3-05791

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 : TB3-05791 Private Proceeding / Huis clos Redetermination of the Appeal 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 August 12, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Paul Vandervennen 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. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to substitute that decision with a finding that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant asks the RAD to refer the matter back to the RPD to be re-considered by a different panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he was kidnapped, held for ransom and tortured for three months because his father had failed to pay a ransom demand when he himself (his father) had been kidnapped by members of the Sri Lankan security forces. The Appellant managed to escape custody with help and fled to Colombo where he hid until he was able to escape Sri Lanka. The Appellant flew from Sri Lanka to Canada, traversing at least two western European countries, France and Germany, before arriving in Canada. The Appellant fears returning to Sri Lanka because the security forces and other groups will kill him. Greater details are available in the Appellant's Basis of Claim (BOC) form1 as well as from his oral testimony, available on audio CD. [4] The Appellant's application for refugee protection was heard over a period of three sittings on April 3, 2013, April 26, 2013 and May 8, 2013. A decision was rendered in writing on August 8, 2013 with a finding that the Appellant was neither a Convention refugee nor a person in need of protection, listing credibility as the major issue in the decision. The Federal Court, upon appeal by the Appellant, has sent the matter back to the RAD to be heard "de Novo" to have the refugee and sur place claims reconsidered. [5] The Appellant submits that the RPD erred by ignoring evidence that the claimant would be persecuted on return to Sri Lanka as an asylum seeker forced to return to his country. [6] The Appellant submits that the RPD erred by ignoring evidence properly before it, in particular with regard to the continued persecution of young Tamil males originating in the north and east of Sri Lanka. [7] The Appellant submits that the Immigration and Refugee Board (Board) erred by making unsupported adverse finding of credibility. However, the Federal Court, upon appeal, dismissed that portion of the judicial review, upholding the RAD's decision to admit the new evidence. ANALYSIS Admissibility of Evidence Submitted on Appeal [8] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [9] Even where a document meets the test in Section 110(4), this does not require the RAD to admit it into evidence without any further consideration. It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant. [10] The Appellant has submitted a document2 which was published on September 2, 2013 which was post-hearing and speaks to certain Tamil returnees to Sri Lanka from Switzerland. The document speaks about a Swiss investigation into the fate of two Tamil men repatriated to Sri Lanka. As this document was not available before the decision of the Board was rendered and because it is relevant, the RAD will allow it in as new evidence and assess it below. Role of the RAD [11] In regard to the role that the RAD plays in the review of an RPD decision, the RAD finds that the recent Federal Court decision, in Huruglica,3 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." [12] 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. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions, but is not bound by those conclusions. The RPD's Findings [13] The Appellant argues that credibility findings or concerns of the RPD do not impact on the Appellant's particular cause for his persecution on return to Sri Lanka. The RPD determined that the Appellant did not have a certain risk profile required for a returnee to fit into a category of persons who would be at risk upon return to Sri Lanka. The Appellant speaks to documents4 at the Board in which risk profiles are discussed. The Appellant points out that according to that document, failed Tamil refugee claimants are subject to arrest, detention and torture. However, that document does not say that is the case with all failed refugee claimants forced to return to Sri Lanka. It is true that many and possibly even most are detained upon arrival at the airport where they are questioned for up to five hours in some cases. Follow up questions may occur at the returnee's place of residence as well. [14] The RAD has difficulty with the Appellant's argument that the RAD should basically ignore the credibility findings when considering the risk factors for this Appellant to return to Sri Lanka. This is not logical. If the RAD ignores the credibility issues then it becomes impossible to assess the likelihood of persecution should the Appellant return. The RAD must consider the profile of the Appellant and that also means looking at what did or did not occur in Sri Lanka before his departure. That means that the credibility issues must be considered by the RAD. The RAD recognizes the fact that the Appellant is a young Tamil male and a failed refugee claimant, both factors which may impact his return to Sri Lanka in some manner. [15] The RAD notes that the United Nations High Commissioner for Refugees (UNHCR) speaks to profiles of Sri Lankans who are likely to face more in-depth attention and possibly persecution should they be forcibly returned to their homeland. The profiles5 mentioned by the UNHCR certainly do not match the profile of this Appellant. The new document6 submitted by the Appellant as evidence speaks to an investigation into the fate of two returned Tamils, one of whom might fit the UNHCR profile (see below) of persecuted returnees while nothing was offered on the second man's profile nor on the results of the investigation. The RAD therefore can give no weight to this new evidence as it really does not say anything of value to the Appellant or to support his case. [16] Counsel for the Appellant has argued that the RPD ignored evidence which is contrary to its finding regarding the profile of the Appellant and the Appellant's risk upon return. It is obvious to the RAD that the RPD did consider counsel's submissions regarding the risk factors.7 The RPD decided that it preferred the documentation of the UNHCR over the other documents mentioned by counsel. As previously mentioned, the UNHCR is the premier agency in regards to protection of refugees. The UNHCR exists for that purpose, so when the UNHCR writes that, generally, there are certain profiles that are at risk and others that are not or are at minimal risk, then the RAD believes what the UNHCR says. It is not that the documents do not speak to exceptions where some returnees are imprisoned and even tortured but they are a tiny minority of the thousands of returnees and most fit the profiles below in one way or another. It is up to the Appellant to show how he would fit into the profiles and he has not done that. He simply says that being a young Tamil is all the risk he needs but that is not what the documents8 indicate. [17] This document was the most up to date evidence of the UNHCR on this matter and the RAD finds that the UNHCR documents, considering the main purposes of the UNHCR is refugee protection, are the documents to which the RAD gives most weight. In the same manor, the RAD notes that the Appellant is absent a criminal record. At no time has the Appellant claimed that he is or was an anti-government protester or that he has been politically active since leaving Sri Lanka. There has been insufficient evidence proffered to identify the Appellant as a person suspected of having ties to the LTTE. [18] The UNHCR has listed the following profiles as ones which must be considered more deeply when looking at refugee claims: More specifically, the possible risks facing individuals with the profiles outlined below require particularly careful examination. UNHCR considers that individuals with these profiles - though this list is not exhaustive - may be, and in some cases are likely to be in need of international refugee protection, depending on the individual circumstances of their case. [footnotes omitted] i. persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE); ii. certain opposition politicians and political activists; iii. certain journalists and other media professionals; iv. certain human rights activists; v. certain witnesses of human rights violations and victims of human rights violations seeking justice; vi. women in certain circumstances; vii. children in certain circumstances; and viii. lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.9 [19] The RAD concurs with the RPD that it would be very unlikely that anyone in Sri Lanka would consider this Appellant to be a supporter of the Liberation Tigers of Tamil Elam (LTTE). As the RAD does not find that the Appellant fits any of the profile types mentioned by the UNHCR, the RAD finds that the Appellant will not face persecution upon his return to Sri Lanka. [20] The RAD has analyzed and considered the evidence around the credibility issue of the Appellant. The RAD notes that the RPD made serious note of contradictions surrounding the Appellant's escape from his three months of captivity. The RAD has read the documents in question10 and notes major inconsistencies which lead the RAD to infer negative credibility of this Appellant. [21] For example, in the Appellant's BOC narrative11 the Appellant tells the story of his kidnapping in which he relates how, after being kidnapped at a bus stop, he was taken by the "henchmen" to their camp. The Appellant goes on to describe this camp as a large camp located closer to a jungle side. Here, he was held and tortured for three months. However, in his statement to the Canadian Immigration Officer12 the Appellant says that when he was kidnapped, he was blindfolded and driven approximately one hour away to a house in XXXX and that he was beaten and tortured for three months. This is a major discrepancy however, as it is not clear that it was addressed at the hearing, the RAD cannot make a finding on it. An example of such contradictions or inconsistencies which was addressed at the hearing occurs in the stories told by the Appellant regarding his escape from the jungle side camp or the house in XXXX. In the notes taken by the Immigration officer, the Appellant spoke of his father paying a man by the name of XXXX who in turn paid the kidnappers in order for the Appellant to be released. The Appellant then said that "the paramilitary group and the army intelligence released him, blind folded him and drove him in a XXXX XXXX from XXXX to Colombo." In the BOC narrative13 however, the Appellant stated that his "father was able to negotiate a deal through a businessman to secure my release. ...The businessman made arrangements with an agent who brought me to Colombo and hid me in a secret place...." [22] These two inconsistencies go directly to the heart of the claim. The Appellant may very well say that he was kidnapped and tortured for three months however, he has not provided credible testimony to convince the RAD that this actually happened. With the amount of torture the Appellant described, including having his eyelashes cut off, being beaten with objects until his body was bloated and swollen, being hung upside down and being smashed in the face, it is more probable than not that he would have suffered some injuries requiring medical care, for which there would be records. When asked by the RPD about such treatments and records, the Appellant testified that he never needed to seek medical attention as his injuries were only internal and not much external. The Appellant testified that he did have scars on his wrists but they have since disappeared. The RAD finds that this is implausible. To suffer three months of ongoing torture of the nature described by the Appellant and not to suffer any injuries requiring some sort of medical treatment is just not plausible. The Appellant said he was tortured but did not suffer injury. The RAD finds this not to be credible. [23] Finding that the Appellant is not a credible witness because of the issues related above, the RAD finds that the kidnapping, torture and escape did not occur. The Appellant has not faced past persecution or a risk to his life. Consequently, the Appellant's sur place claim is impacted negatively. [24] It is therefore the opinion and finding of the RAD that the RPD did not err in its assessment of the risk profile of this Appellant in regards to his returning to Sri Lanka. Neither did the RPD err in its credibility assessments of this Appellant. Disposition [25] The RAD has found that the RPD decision will stand. CONCLUSION [26] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe August 12, 2015 Date 1 Exhibit P-2, Appellant's Record, at pp. 20-41. 2 Exhibit P-2, Appellant's record, at p. 51 3 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 4 Exhibit RPD-1, National Documentation Package (NDP) for Sri Lanka (February 27, 2013), item 14.5, Responses to Information Requests, LKA103815.E. 5 Exhibit RPD-1, NDP for Sri Lanka (February 27, 2013), item 1.13. 6 Exhibit P-2, Appellant's Record, at p. 51 7 Exhibit RPD-1, RPD's Record, at pp. 13-14, para 35-36. 8 Exhibit RPD-1, NDP for Sri Lanka (February 27, 2013), item 1.13 9 Exhibit RPD-1, NDP for Sri Lanka (February 27, 2013), item 1.13. 10 Exhibit P-2, Appellant's Record, at pp. 4 -5, para 10-17; Exhibit RPD-1, RPD's Record, at pp. 65 -103. 11 Exhibit P-2, Appellant's Record, at p. 23, para 5-7. 12 Exhibit RPD-1, RPD's Record, at pp. 102 -103. 13 Exhibit P-2, Appellant's Record, at p. 23, para 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB3-05791