MB8-12601

RAD File / Dossier de la SAR : MB8-12601 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Québec Appel instruit / entendu à Date of decision October 23, 2019 Date de la décision Panel Me Zofia Przybytkowski Tribunal Counsel for the person who is the subject of the appeal Me Raoul Boulakia Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant, XXXX XXXX (Principal Appellant), is a citizen of Sri Lanka. He alleges that he fears harassment by the Sri Lankan authorities because he is a young Tamil man born outside of Sri Lanka, who does not hold a National Identity Card. He alleges his profile exposes him to suspicions that he has links to the Liberation Tigers of Tamil Eelam (LTTE). He alleges that he returned to Sri Lanka from India, and he was harassed by non-Tamils and arrested three times by the police. [2] The Appellant's case has had a long procedural history. He first claimed refugee status before the Refugee Protection Division (RPD). His appeal was dismissed at the Refugee Appeal Division (RAD). The Federal Court overturned the RAD decision and sent his case back to the RAD. The RAD allowed the appeal and returned the file to the RPD for reconsideration, due to issues in procedural fairness with the first RPD decision. The RPD, on reconsidering the file, rejected the Appellant's claim. This leads us to the present appeal at the RAD. [3] The RPD dismissed the Appellant's claim for refugee status because it found that his testimony was not credible. The RPD called into question whether the Appellant did indeed ever return to Sri Lanka. The RPD also found that the Appellant's profile as a young Tamil male does not, in itself, expose him to a serious possibility of persecution. [4] The Appellant challenges the RPD's decision, arguing that its findings regarding credibility are unclear and unfounded, and that the RPD disregarded the Appellant's explanations for perceived implausibilities. The Appellant submits that the RPD incorrectly analyzed the objective evidence relating to young Tamil men in Sri Lanka. The Appellant argues that the RPD considered that he initially submitted a false narrative at his first RPD hearing when weighing his credibility, although the RPD requested a new narrative and declared it would proceed with "fresh eyes". [5] I have completed an independent assessment of all the evidence, including the RPD and Refugee Appeal Division (RAD) records, and the record of the hearing held before the RPD. I have proceeded without holding a hearing. DECISION [6] The appeal is denied. I confirm the RPD decision, for different reasons. I reject the RPD's findings regarding the Appellant's credibility. However, when analyzing the Appellant's profile as a young Tamil man returning to Sri Lanka, I find that he has not met the burden to demonstrate that he faces more than a mere possibility of persecution upon his return. ANALYSIS The RPD's credibility findings are set aside [7] The RPD found that the Appellant's credibility was the determinative issue. The Appellant challenges the RPD's conclusions on credibility with several arguments. In summary, he submits that the RPD's decision on credibility is unintelligible and unresponsive to the Appellant's testimony. [8] I agree with the Appellant's arguments. [9] The RPD found that the Appellant has not established that he returned to Sri Lanka from India, where he was born, while also finding that he has not adequately explained why his mother would choose to return to Sri Lanka and bring the Appellant with her. I find that the Appellant has established that he did return to Sri Lanka, as he submitted the false Indian passport that he used in order to travel, which contains entry and exit stamps, as well as visitor visa extensions. The RPD did not consider this evidence in its reasons, and I see no reason to doubt its reliability. It is a document from an independent source, which, although it is admittedly false, contains information that is consistent with the Appellant's narrative. The Appellant adequately explained that his mother decided to return to Sri Lanka in 2013, despite the abuse she suffered there in 2007, because she did not have a status in India and her economic situation was precarious. [10] The RPD hardly addresses the Appellant's testimony regarding the arrests, indicating in its reasons that there was only one incident during which the Appellant was arrested, while the Appellant alleged that there were three. I see no reason to doubt that the Appellant was harassed by a Sinhalese young man, who, among other things, wrongfully accused him of damaging his car. A presumption of truth applies to this testimony, and the RPD did not challenge it with any contradictions, omissions or other inconsistencies. [11] If I assume that the appellant was detained by the police for a few hours to two days, on three occasions, after false accusations in 2013, I need to determine if there is a forward-facing risk of persecution if he returns to Sri Lanka. The Appellant does not face a serious possibility of persecution upon returning to Sri Lanka The Appellant's profile as a young Tamil man [12] The Appellant's history of arrests in 2013 does not lead me to the conclusion that he has perceived links to the LTTE that would expose him to a serious possibility of persecution at the hands of the police forces or Tamil militias. [13] The Appellant alleged that he was detained after a Sinhalese young man, who XXXX XXXX XXXX XXXX, accused him of damaging his car. He was questioned and released after one day. The same young man later accused the Appellant of beating him up. The police detained him for two days and questioned him about his involvement with the LTTE, and ordered him to report to the station every Sunday. [14] The Appellant was also held and questioned by the police after being involved in an altercation with two Sinhalese boys at a bus stop. He was released after several hours without charge. Finally, the Appellant was asked to go to the police station in XXXX 2013, and was questioned in relation to a possible terrorist attack by the LTTE and released after one day. [15] Regarding the incidents with the Sinhalese XXXX XXXX, the Appellant has not alleged or established that this person would have any interest in him if he were to return to Sri Lanka today. As for the other incidents, and the fact that the Appellant has stopped reporting to the police station, he has testified that his mother still lives in Colombo and has not had any problems since he last left Sri Lanka in 2014. The Appellant has not established or alleged that she had visits from the authorities or any contact that would indicate that they have been looking for him since he stopped reporting. [16] I find that the Appellant's narrative and testimony do not establish that the Sri Lankan authorities have a continued interest in him due to perceived links with the LTTE. [17] The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka1 were part of the record at the time of the RPD hearing, and define profiles that would give rise to a need for international protection. These profiles all involve specific links or history with the LTTE, or having family members who have had such links. The Appellant's situation does not correspond with any of these profiles. The Guidelines specify that originating from an area that was previously controlled by the LTTE does not in itself result in a need for international protection. [18] Having reviewed the objective evidence, I find that while it is true that individuals with a profile similar to the Appellant may have faced many difficulties in the past, the documentary evidence indicates that the circumstances in Sri Lanka have changed and continue to evolve. [19] The Appellant has submitted a document from an Amnesty International official, which outlines the treatment of Tamils suspected of links with the LTTE. I disagree with the RPD's assessment of this document as this official's personal opinion. Nevertheless, the report outlines that there is a possibility of persecution for Tamils who have real or perceived links with the LTTE. The Appellant, however, has not demonstrated that the authorities have a reason to suspect him of LTTE-related activities if he returns to Sri Lanka today. [20] The documentary evidence further confirms that while a returned person may be on a "watch list" which may result in monitoring, it states that monitoring alone does not rise to the level of persecution.2 This evidence states that if monitoring does not demonstrate that the person is a Tamil activist seeking to destabilize the country or revive armed conflict, the individual is not reasonably likely to be detained by security forces.3 This is confirmed by more recent documentation.4 I find that the Appellant's profile may expose him to questioning upon returning to Sri Lanka, but that does not amount to a serious possibility of persecution. Despite not having a passport or National Identity Card, he is able to establish his identity and nationality via his birth certificate upon arrival. Lack of a National Identity Card (NIC) [21] The Appellant alleged that his problems with the police were exacerbated by the fact that he did not have a National Identity Card (NIC), and that exposed him to suspicion. However, he testified that he was able to apply for one. This is consistent with the documentation, which indicates that any citizen over the age of 16 can apply for a NIC5. Further, the objective documentation indicates that the processing delay to obtain a NIC is 6 months, and that, in the meantime, a returnee can identify himself on the basis of his Emergency Travel Document or his birth certificate6. The Appellant was in Sri Lanka from XXXX 2013 to XXXX 2013, which is a period of less than XXXX months. He has not indicated in his evidence that he attempted to identify himself using his birth certificate, when questioned by the police. His mother was able to confirm his identity and that the application for a NIC was being processed. [22] I find that, given that the Appellant or his family don't have ties to the LTTE, and that there is no evidence that the authorities are looking for him, the lack of a NIC does not expose him to more than a mere possibility of persecution. CONCLUSION [23] For the above reasons, I confirm the RPD's decision, for different reasons. The Appellant has not met his burden of proof to demonstrate that he faces a serious possibility of persecution due to a Convention ground, or that he personally faces a threat to his life, or a risk of cruel and unusual treatment or punishment. I therefore confirm the RPD's conclusion that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) Zofia Przybytkowski Me Zofia Przybytkowski October 23, 2019 Date /ag 1 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, United Nations. High Commissioner for Refugees (21 December 2012), RPD record p.173-214, at p. 198-199. 2 Ibid. 3 Ibid. 4 National Documentation Package, Sri Lanka, 29 March 2019, tab 14.1: Entry and exit procedures at international airports, including security screening and documents required for citizens to enter and leave the country; treatment of returnees upon arrival at international airports, including failed asylum seekers ... Immigration and Refugee Board of Canada. 10 November 2017. LKA106007.E., p.4-7. 5 National Documentation Package, Sri Lanka, 29 March 2019, tab 3.1: The National Identity Card (NIC); its issuance, cost, validity period, security features and description of front and back. Immigration and Refugee Board of Canada. 14 March 2016. LKA105433.E. 6 UK Border Agency, Sri Lanka : Country of Origin Information (COI) Report, 7 March 2012. RPD Record, p. 432. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-12601 RAD.25.02 (April 04, 2019) Disponible en français 7 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.25.02 (April 04, 2019) Disponible en français