TB3-02876

RAD File No. / N° de dossier de la SAR : TB3-02876 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 21, 2013 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jack Davis 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 (de la) ministre REASONS AND DECISION [1] XXXX XXXX, a citizen of Sri Lanka, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111 (1) (a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that XXXX XXXX is neither a Convention Refugee pursuant to s. 96 of the IRPA nor a person in need of protection pursuant to s. 97 of the IRPA. BACKGROUND [3] The appellant alleged before the RPD that she is the wife and mother of four children from Sri Lanka. Her husband, 18-year-old son, 15-year-old daughter and 13-year-old son remain in Sri Lanka. Her 24-year-old daughter is in Canada and is married to a Canadian citizen. She is currently staying with her daughter here in Canada. She lived with her children in the northern province of Nainativu. Her husband works and partially lives in Colombo and travels home about twice a month. Her mother now cares for her three younger children in Sri Lanka on a day-to-day basis. [4] In early XXXX 2012, her eldest son and husband were taken by the Sri Lankan Army and questioned about any Liberation Tigers of Tamil Eelam (LTTE) involvement. Her husband was detained for about five hours and interrogated. Her son was detained for two nights and three days. The Army also came to the appellant's house and questioned her. [5] In approximately XXXX2012, she applied for a visa to Canada. This was because her eldest daughter, who lives in Canada, was expecting her first baby in late 2012. In addition, earlier in her daughter's pregnancy, in XXXX2012, her Canadian son-in-law was severely injured in a motor vehicle accident and, since his release from hospital, has required long-term home care. The claimant applied for and was granted a visa, valid from XXXX XXXX, 2012 to XXXX XXXX, 2013. Her intention at the time of arriving in Canada on XXXX XXXX, 2012 was to return to Sri Lanka on or before the expiry of her visa. [6] On XXXX XXXX, 2013, the Army came to her house and took her eldest son for questioning. Members of the Eelam People's Democratic Party (EPDP) militants accompanied the Army. Her husband was also detained for a few hours. He was told that the appellant must present herself at the camp upon her return to Sri Lanka. Her son was detained for two days and one night. He was hit. Her husband paid 50,000 rupees for his release. The officers told the family that they had gathered information that in the past the appellant had safe-guarded two female LTTE members in the house. They provided no details about these allegations. She learned of this event by a telephone call from her mother. [7] She made her claim for refugee protection on or about January 29, 2013. [8] The RPD determined that the appellant was not a Convention refugee or a person in need of protection on the basis that it was not credible that she would be a target of Sri Lankan authorities for harbouring LTTE members or for any other reason. SUBMISSIONS [9] The appellant submits that the RPD erred in: (a) applying an incorrect test; (b) ignoring relevant evidence that directly contradicts the conclusion reached; and (c) in the treatment of an affidavit from the appellant's husband. [10] The appellant requests that the RAD set aside the RPD's decision and find that the appellant is a Convention refugee. In the alternative, she requests that the RAD refer the matter back to the RPD for re-determination by a different member. [11] The Minister did not intervene in this matter. ANALYSIS OF THE MERITS OF THE APPEAL [12] The determinative issues in this appeal are: 1. Did RPD apply an incorrect test? 2. Did the RPD ignore relevant evidence? 3. Did the RPD make erroneous credibility findings? Appellant's Arguments [13] The appellant submits that the RPD made a finding that she is a female Tamil from northern Sri Lanka. The RPD was required to analyze the evidence to determine whether or not, on the basis that she was a female Tamil from northern Sri Lanka, she has a well-founded fear of persecution in Sri Lanka. The RPD made an incorrect finding by applying an incorrect test when it stated the country condition documents tendered by the Board and by counsel - voluminous in this case - did not support a finding that the claimant presents a typical profile of a Tamil likely to be targeted by the Sri Lankan authorities as an LTTE sympathizer. [14] The appellant argues that "likely to be targeted" is an incorrect test. The correct test for determining whether or not a person is a Convention refugee is whether or not there is a reasonable chance or serious possibility that the claimant would be persecuted should she be returned to her country of nationality (or former habitual residence as the case may be), with "serious possibility" being the preferred phraseology. This standard is lower than the balance of probabilities, but higher than a mere possibility. As "likely to be targeted" represents a balance of probabilities test, it is clear that the RPD has erred. [15] The appellant submits that notwithstanding the application of the incorrect test, there was copious evidence before the RPD that a person such as the appellant, a female Tamil from northern Sri Lanka, faces a serious possibility of persecution in Sri Lanka. The appellant then states this documentary evidence and maintains that other than noting that the documentary evidence before the RPD was "voluminous", the RPD made no specific reference to any of the documentary evidence, even though the same had been specifically drawn to the RPD's attention by way of written submissions. Such being the case, the RPD has committed the error of ignoring relevant evidence that directly contradicts the conclusion reached. The appellant referred to jurisprudence of the Federal Court that states: However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence". The agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice where the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its findings, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.1 It is well known and accepted that a decision-maker does not have to refer to all evidence upon which it relies but at the same time, when there is relevant contradictory evidence that is unacknowledged by the decision-maker, a reviewing Court may conclude that the Board ignored or misapprehended key facts and came to an erroneous decision...2 [16] The appellant states that the RPD reviewed the affidavit from the appellant's husband but only gave it minimal weight as it was self-serving and not probative. The appellant referred to jurisprudence that stated: "With respect to letter from the President of the organization, I do not understand the Board's criticism of the letter as being self-serving, as it is likely that any evidence submitted by an applicant will be beneficial to his or her case, and could thus be characterized as 'self-serving'."3 There was also reference to other jurisprudence to the same effect. ANALYSIS [17] The issue of whether the RPD applied an incorrect test is a question of law. The issue of whether the RPD erred in its assessment of the appellant's risk by ignoring relevant evidence and the issue of the treatment of the affidavit from the appellant's husband are questions of fact. In considering these matters, it is necessary to determine the standard of review that will be used. [18] The appellant did not make any submissions on the appropriate standard of review. [19] Section 110(1) of the IRPA sets out the grounds for an appeal to the RAD. The appeal may be on a question of law, of fact, or of mixed fact and law. There are a number of decisions or determinations of the RPD that cannot be appealed to the RAD as set out in Section 110(2) of the IRPA. [20] Section 111(1) sets out the decisions that the RAD can make after considering the appeal. The RAD can confirm the determination of the RPD; set aside the determination and substitute a determination that, in its opinion, should have been made; or, refer the matter to the RPD for re-determination, giving directions to the RPD that it considers appropriate. [21] The standard of review is not specified in the legislation. [22] There are a few cases that have dealt with the standard of review to be applied by administrative appellate tribunals. The Alberta Court of Appeal dealt with the issue in the case of Newton v. Criminal Lawyers' Trial Association, 2010 ABCA 399. The case concerned the basic structure and interrelationship of the tribunals in Alberta that review the conduct of police officers when that conduct is called into question in disciplinary proceedings under the Alberta Police Act. [23] The matter was first heard by a senior police officer ("presiding officer") from the RCMP. There were two counts of misconduct against an officer. The presiding officer found that one count was proven and one count was not proven. The determination of the presiding officer was appealed to the Law Enforcement Review Board ("Board"). The Board conducted a hearing de novo. The Board allowed the appeal on the one count not proven, thus, overruling the decision of the presiding officer. The Court found that the Board did not conduct any analysis of the reasoning of the presiding officer, did not reflect on whether it should afford his decision any deference, and did not explain why it disagreed with the inferences he had drawn from the evidence. [24] The Court of Appeal reviewed the law on standard of review that has developed in Canada. [30] The standard of review analysis respecting appellate superior courts and trial courts was definitively stated in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33. Shortly put, an appellate superior court reviews the decisions of trial courts on questions of law for correctness. Errors of fact, mixed errors of fact and law and inferences to be drawn from the facts are generally reviewed for palpable and overriding error. [32] The standard of review analysis respecting the relationship between superior courts and administrative tribunals is found in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, building on the platform laid down in Puspanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. Dunsmuir summarized the standards used at para. 51: ...questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness. Some legal issues, however, attract the more deferential standard of reasonableness. Truly jurisdictional questions are usually reviewed for correctness. Errors of law within the expertise or mandate of the tribunal are often reviewed for reasonableness. Questions of law of more general interest to the legal system are often reviewed for correctness. [33] The standard of law applied by the superior courts to decisions of administrative tribunals recognizes the purely supervisory role of the superior courts. ... Because the role of the superior courts is supervisory, it is not their place to substitute their judgment for that of the tribunal. The legislature has given the authority to make the decisions under review to the tribunal, not the courts. Therefore, deference to the decision of the tribunal is an important factor in setting the standard of review. The standard of review is set by considering four factors: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by the interpretation of the enabling legislation; (3) the nature of the question at issue; and (4) the expertise of the tribunal:4 [25] The Court went on to state: [42] The determination of the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance requires a consideration of the same factors that are discussed in Housen and Dunsmuir/Pushpanathan, adapted to the particular context: College of Physicians and Surgeons of Ontario v. Payne (2002), 219 D.L.R. (4th) 350, 163 O.A.C. 25 (Div. Ct.) at Para 20. [43] The following factors should generally be examined: (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of the first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [26] The case of MacNeil v. Canada Employment Commission 2009 FCA 306, also dealt with the issue of standard of review between a tribunal of first instance and an appellate tribunal. In that case, an individual acting as an umpire allowed the appeal of the Employment Insurance Commission from a decision of the Board of Referees. The issue in the case was whether the pension payments received by the appellant were earnings that had to be deducted from the benefits payable to the appellant under the Employment Insurance Act. [27] The Court stated that the Umpire did not set out the standard of review he applied in arriving at his decision. Counsel for the appellant argued that the reasonableness standard should have applied, since the question that the Umpire was reviewing was a question of mixed fact and law. The Court did not agree. The Court stated that the application of a legal standard to a set of factual findings is typically regarded as a question of mixed fact and law, which is reviewed on a standard of reasonableness, unless there is a readily extricable question of law. In this case, the legal standard is the definition of pension in regulations to the Act. The collective agreement is also to be considered. The Court found that these questions were questions of law, and the standard of review was correctness. [28] The case of Halifax (Regional Municipality) v. Anglican Diocesan, 2010 NSCA 306 also dealt with the issue of standard of review by an appellate tribunal of a decision of a tribunal of first instance. In this case, the Diocese wanted to erect a building with a residential component on land that it owned. Halifax's land-use bylaw zoned the property as Park and Institutional. The Diocese applied for a development permit, but it was denied by the municipal development officer on the basis that the residential component was not permissible according to the bylaw. [29] The Diocese appealed to the Utility and Review Board ("Board") which allowed the appeal. The Municipality then appealed to the Court of Appeal. The Court reviewed the legislation establishing the Board. The relevant parts of the legislation stated that the Board could overturn a development officer's refusal of a development permit only on the grounds that the development officer's decision does not comply with the land-use bylaw or conflicts with the provisions of the land-use bylaw plus other matters that were not relevant. The Board stated that it "may only allow this appeal if it determines that the Development Officer's decision 'conflicts with' or 'does not comply' with the land-use bylaw". The Court stated that the Board should do just what the statute tells it to do. [30] The Court found that the legislation expects the Board to interpret the land-use bylaw. It went on to find that the Board reasonably interpreted the phrase "other institution of a similar type." [31] In my view, the reasoning of the Federal Court of Appeal in McNeil and the Nova Scotia Court of Appeal in Anglican Diocesan is consistent with the Alberta Court of Appeal decision in Newton and might well have been reached using the factors set out in that decision. In the McNeil case, the court appears to have considered the nature of the question in issue, the interpretation of the statute as a whole as well as the other factors. In the Halifax case, the Court considered the nature of the question in issue, the interpretation of the statute as a whole, the expertise and advantageous position of the tribunal of the first instance, compared to that of the appellate tribunal as well as the other issues. For that reason, in my opinion, the standard of review to be applied by the RAD should be determined using the factors set out in Newton. [32] In considering the standard of review to be applied by the RAD to the RPD decision, I reviewed the factors set out by the Alberta Court of Appeal. (a) The RPD's principal function is to hold oral hearings to determine if a claimant referred to the Immigration and Refugee Board ("Board") by Citizenship and Immigration Canada (CIC) or Canada Border Services Agency (CBSA) is a Convention refugee in accordance with Section 96 of the IRPA or is a person in need of protection according to Section 97 of the Act. The RPD also considers whether a claimant is subject to exclusion under Section 98 of the IRPA. Section 98 incorporates sections "E" and "F" of Article 1 of the Refugee Convention. The RPD may inquire into any matter relevant to the claim. It must hold a hearing, but it may accept a claim without a hearing through an expedited process. It may question the witnesses, including the person who is the subject of the proceeding. The RPD must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations. An appeal to the RAD may be made by the person who is the subject of the RPD proceedings or by the Minister against a decision of the RPD to allow or reject the person's claim for refugee protection. The person or the Minister may appeal to the RAD on a question of law, question of fact or a question of mixed law and fact. There is no appeal to the RAD in certain circumstances as set out in the IRPA. The RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD shall make one of the following decisions: confirm the determination of the RPD; set aside the determination and substitute a determination that, in its opinion, should have been made; or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate. The Act provides that the RAD must proceed without a hearing on the basis of the record of the RPD proceedings except that the RAD may, in accordance with certain provisions, accept documentary evidence and written submissions and conduct an oral hearing. (b) The basic question before both the RPD and the RAD is whether a claimant is a person in need of protection. Both the RPD and the RAD are given authority to use "specialized knowledge" in reaching their decisions. The RAD is to determine if the question is one of law, fact, or mixed fact and law. (c) In reviewing the interpretation of the IRPA as a whole, sections 3(2) and 3(3) set out the objectives of the Act with respect to refugees and the general application of the Act. Among other matters, these sections state that the objectives include: recognition that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; granting, as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution; establishing fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings; promoting international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals; fulfilling Canada's international legal obligations with respect to refugees and affirm Canada's commitment to international efforts to provide assistance to those in need of resettlement. The Act is to be applied in a manner that ensures that the decisions taken are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; and complies with international human rights instruments to which Canada is signatory. The Act also provides in Section 162 that each Division of the Board has, in respect of proceedings brought before it, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction and each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. (d) The RPD is able to hear and observe the evidence in the original hearing. Both the RPD and the RAD are considered to have the expertise to use "specialized knowledge". The RAD has more than a supervisory role over the RPD, since it can set aside the determination and substitute a determination that, in its opinion, should have been made. (e) As noted above, the Act provides that the RAD must proceed informally and quickly as the circumstances and the considerations of natural justice permit. The RAD must proceed without a hearing on the basis of the record of the RPD proceedings except that the RAD may, in accordance with certain provisions, accept documentary evidence and written submissions and conduct an oral hearing. Together with the items mentioned in paragraph (f), these factors indicate that the Act contemplates the need to limit the number, length and cost of appeals. (f) The Act provides that there is no appeal to the RAD in respect of an RPD decision regarding designated foreign nationals; withdrawn or abandoned claim; no credible basis or manifestly unfounded claim; exception to the Safe Third Country Agreement; designated country of origin (DCO); Minister's application that refugee protection has ceased (whether allowed or rejected); Minister's application to vacate refugee protection (whether allowed or rejected); deemed rejection of claim because of Extradition Act; application for protection, i.e., Pre-Removal Risk Assessment (PRRA). Along with the factors listed in paragraph (e), the Act preserves the economy and integrity of the RPD. (g) No other relevant factors. [33] These factors indicate that the Act does not contemplate that the proceedings before the RPD are to be given no deference. The RPD is an important step in the process of refugee determination. It has the obligation to decide many matters that cannot be appealed to the RAD, and it has the significant advantage of hearing first-hand evidence from witnesses in an oral hearing. The RAD, in contrast, is primarily an appeal on the record. Deference ought to be given to the tribunal which has the advantage of a full oral hearing in which to make its findings of fact and fact and law. Although the RAD and the RPD have similar expertise in interpreting the enabling legislation, that would support a standard of correctness only for questions of law. The RAD is given the ability to set aside a determination of the RPD and substitute a determination that, in its opinion, should have been made. This is a remedy that a court does not have in exercising judicial review of an administrative tribunal. I have taken this into consideration; however, in assessing these remedial powers against the above factors and the roles set out for the RPD and the RAD, I conclude that the RAD is still to give deference to the RPD. [34] In accordance with this deference, findings of fact and findings of mixed law and fact are to be assessed on the basis of reasonableness. Both the RPD and the RAD are considered to have specialized knowledge. Therefore, errors of law within the expertise or mandate of the tribunals as well as questions of law of more general interest to the legal system are to be reviewed for correctness. [35] The issues raised by the appellant in this case challenge the RPD's findings of law and fact. Findings of law are to be examined on the standard of correctness, and findings of fact are to be examined on the standard of reasonableness. [36] The question of whether the RPD applied the correct legal test in determining whether the appellant was at risk of persecution under Section 96 of the IRPA is a question of law to be reviewed on the standard of correctness. In considering this matter, it is necessary to look at the reasons for decision as a whole. The Federal Court5 has quoted various decisions dealing with the test to be applied: In this case, looking at the impugned decisions as a whole, I find the tribunal expressed itself sufficiently and did not impose an inappropriate burden on the applicants. The tribunal conveyed the essence of the appropriate standard of proof, that is a combination of the civil standard to measure the evidence supporting the factual contentions and a risk of persecution which is gauged by not proving persecution is probable but by proof there is a reasonable chance or more than a mere possibility a claimant would face persecution.6 ...[t]his is an awkward standard of proof to articulate. This Court has recognized that various expressions of this standard are acceptable, so long as the Board's reasons taken as a whole indicate that there the claimant was not put to an unduly onerous burden of proof.7 [37] In this case, it is difficult to determine if the RPD applied the proper test in considering the appellant's section 96 claim. The RPD states at various places in the decision: The panel finds, on a balance of probabilities, that this claimant would not be target of the Sri Lanka authorities for harbouring LTTE members or for any other reason. The panel does not find her story materially plausible and believes that this claimant, on a balance of probabilities, wishes to stay in Canada to further assist her daughter and son-in-law and has attempted to use the refugee protection system as a means to do so. The country conditions documents tendered by the Board and by counsel - voluminous in this case - did not support a finding that the claimant presents a typical profile of Tamil likely to be targeted by Sri Lankan authorities as an LTTE sympathizer. ...the panel believes, on a balance of probabilities, that the claimant came to Canada to assist her daughter with child care and the care of her infirm son-in-law and now wishes to remain here permanently and hence has fabricated a story for refugee protection. If she returns to Sri Lanka on of (sic) before the expiry of her visa she will do so with legal sanction and not, on a balance of probabilities, be viewed as a deportee by the Sri Lankan authorities. [38] There is no reference in the decision to the test as to whether or not there is a reasonable chance or a serious possibility that the claimant would be persecuted if she returned to Sri Lanka. I conclude that the RPD did not use the correct test in reaching its final conclusion. [39] The RPD made a number of credibility findings, and they are to be reviewed on the basis of reasonableness. The RPD found that the appellant is a 48-year-old wife and mother. She was not a member of any political party and neither she nor any members of her family were supporters of the LTTE. She is a middle-aged mother of four children who has not experienced significant problems with the authorities in the past. She was outside the country for three months before the Army allegedly came to the family home in XXXX 2013 and accused her of harbouring two female LTTE members. The appellant's mother and father, three teenaged children, and her husband, who travelled back and forth to Colombo, lived in the house at the time the two LTTE members were alleged to have been harboured. However, when the authorities came to the house and made the allegation, no other long-term consequences were taken against the other household members who were present. The RPD found it implausible that only the appellant would be considered responsible. [40] The birth of her first grandchild and the accident of her son-in-law that resulted in him requiring constant care were the reasons the appellant gave when she applied for a visa to come to Canada. The RPD found it implausible that the appellant gave these reasons and then the Sri Lankan officials targeted her after she arrived in Canada, but they did target her husband. The RPD concluded that the appellant wished to stay in Canada to assist her daughter and son-in-law and not because she was being sought by Sri Lankan authorities. [41] The RPD stated that the appellant did not provide an arrest warrant or any official document to support her allegations that she is being sought by the authorities. An affidavit was tendered from the appellant's husband, but the RPD placed minimal weight on it as it was self-serving and not probative. The RPD did not explain why the document was not probative. The RPD should not have given the affidavit little weight solely because it was self-serving. Most documents provided by claimants are self-serving. However, in reviewing the affidavit, it states that the appellant's husband along with their son were arrested in July 2012, and they were questioned regarding LTTE militants and in particular his wife. The husband further declares that through the questioning he came to know that his wife was "needed to ascertain LTTE girls whom she said to have harboured before ending of ethnic war in XXXX 2009". [42] The appellant gave evidence that, in the early part of XXXX2012, her son and husband were taken by the Army and questioned about LTTE involvement. Her husband was detained for about five hours and interrogated. Her son was detained for two nights and three days, and he was slapped during his interrogation. Prior to their release, the Army came to her house and searched and questioned her. She then stated that the Army came back on XXXX XXXX, 2013, and it was after this incident that her husband was told that they wanted to question her about harbouring some LTTE girls. This differs substantially from the affidavit of her husband who only makes reference to XXXX2012. If the Army had come to the house in XXXX2013, then the husband would have mentioned this in his affidavit. As a result, it is reasonable to find that the affidavit has minimal probative value. [43] The appellant states that the RPD did not make any reference to the documentary evidence submitted, except to say it was voluminous, even though it was specifically drawn to her attention by way of written submissions. The RPD commented on the documentary evidence by stating that it "did not support a finding that the claimant presents a typical profile of Tamil likely to be targeted by the Sri Lankan authorities as an LTTE sympathizer." The RPD earlier in the decision stated that: The objective documentary evidence certainly speaks to the arrest, detention and mistreatment of LTTE members and journalists. However, this claimant testified that she is not a member of any political party nor is she, or any of her family, supporters of the LTTE. She is a middle-aged mother of 4 children in Sri Lanka who has not experienced significant problems with the authorities in the past - not typically the profile of one who would be targeted by the authorities. [44] The RPD also comments on the context of this case in stating that the appellant had been outside the country for three months before the Army allegedly came to the family home in XXXX2013 and accused her of harbouring two female LTTE members. There is no persuasive evidence that any member of the family suffered any consequences as result of this particular allegation even though her parents, husband and three teenaged children also shared the home. [45] The RPD made a credibility finding that the appellant was not being sought by Sri Lankan authorities for harbouring LTTE members. The RPD based this finding on the plausibility findings outlined above. In order for a statement to be implausible, it must be inherently improbable or suspect. In determining whether a credibility finding is reasonable, the RPD is entitled to deference. The Supreme Court of Canada has stated that reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law within a range of possible, acceptable outcomes.8 [46] The fact that the appellant's husband, children and parents, who apparently lived in the house at the time that the LTTE female members were allegedly harboured, did not suffer any ultimate consequence and yet the appellant was being targeted, is inherently improbable or suspect. There is no documentary evidence or other evidence that a Tamil woman in this position would be targeted but the rest of the family would not be targeted. It was reasonable for the RPD to make this credibility finding. Given that the RPD is entitled to deference on this issue, I find that this conclusion falls within a range of possible, acceptable outcomes. [47] The relevance of the documentary evidence depends on the facts left over once all the credibility findings have been made and found reasonable. I have reviewed the documentary evidence, and it states that Tamils from the North may be at risk of persecution including women. However, it also states: When asked about the profile of people at risk of being arrested, the diplomatic mission informed the delegation that the following groups will be at risk: Tamils who lived for some years in Colombo and abroad and returned to the North, Tamils who left the country around the time of the war and applied for asylum and came back, Tamils involved in money transfer, Tamils with a LTTE profile... [48] It also states that: Sri Lankan nationals returning to the country after living abroad are at risk of being arbitrarily detained on arrival or shortly thereafter. Sri Lankan nationals who are failed asylum seekers are especially at risk and are likely to be interrogated on return. The adjunct professor stated to his knowledge, Tamil citizens, particularly young males between the ages of 18 and 35, continue to be subjected to 'harassment' by security officers. [49] The RPD briefly referred to the documentary evidence, and it was reasonable to treat it in this manner since more emphasis was placed on the specific evidence related to this claim. [50] The allegation that the appellant has been targeted for allegedly harbouring LTTE members is the basis for her claim. The rest of the family members suffered no ultimate consequence as a result of this claim. The appellant's husband and son were previously detained and released, and the appellant herself was questioned. There is no persuasive evidence that the appellant would be targeted merely because she is a Tamil woman from the North, since she does not fit the profile of a person who would be targeted. Her reasons for coming to Canada were to help her daughter with a new born baby and to help care for her son-in-law injured in a car accident. Her asylum claim has been conducted in private in Canada. There is no persuasive evidence that Sri Lankan authorities would have knowledge of her claim for refugee protection if she returned. She would not be a target for making a claim for refugee protection. [51] I have considered these facts under sections 96 and 97 of the IRPA. I find that there is not a serious possibility or a reasonable chance that the appellant would be persecuted if she returned to Sri Lanka based on the facts outlined above. I also find that, on a balance of probabilities, the appellant would not be at risk to her life, or at risk of cruel and unusual treatment or punishment or torture, if she returned to Sri Lanka. REMEDIES [52] For all these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Ken Atkinson" Ken Atkinson August 21, 2013 Date 1 Cepeda-Gutierrez, Carlos Arturo v. Canada (Minister of Citizenship and Immigration) (F.C.T.D., no.IMM-596-98), Evans, October 16, 1998, paragraph 17 2 Goman v. Canada (Minister of Citizenship and Immigration), 2012 FC 643, at paragraph 13. 3 Ahmed v. Canada (Minister of Citizenship and Immigration), 2004 FC 226, at paragraph 31. 4 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 64. 5 Paramsothy, Pratheepan v. M.C.I., (F.C., IMM-421-12), Mandamin, August 16, 2012; 2012 FC 1000. 6 I.F. v. Canada (Minister of Citizenship and Immigration), 2005 FC 1472. 7 Alam v, Canada (Minister of Citizenship and Immigration), 2006 FC 1407. 8 Dunsmuir v. New Brunswick, 2008 SCC 9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-02876