TB7-14585

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 : TB7-14585 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 31, 2018 Date de la décision Panel Linda Hart Tribunal Counsel for the person(s) who is(are)the subject of the appeal John W. Grice 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 XXXX (the Appellant) 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 and requests an oral hearing. [2] He asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own decision that he is a Convention refugee or person in need of protection or, in the alternative, refer his claim back to the RPD for redetermination. DETERMINATION [3] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD. BACKGROUND [4] The Appellant alleged before the RPD that he is a seaman from Sri Lanka who entered Canada and subsequently abandoned his ship on September 3, 2015, and made his claim for refugee protection. [5] The Appellant alleged that the Bodu Bala Sena (BBS), a nationalist Buddhist organization in Sri Lanka, will harm him due to his conversion from the Buddhist faith to Christianity. He further alleged that he fears the police, the CID and the army, who detained him because he worked aboard ships where he lived amongst Tamils. He states that the authorities believe that he has assisted the LTTE by smuggling provisions to them and providing shelter. [6] The Appellant's application for refugee protection was heard on January 14, 2016, August 24, 2016, November 15, 2016 and December 15, 2016. In a written decision dated June 29, 2017, the RPD rejected his claim, finding that the Appellant had not established his national, personal and religious identity. The RPD alternatively found that his allegations that he was targeted by the police, the CID, or the Army as an alleged supporter of the LTTE were not credible and that the risk profiles in the documentary evidence did not apply to him. [7] The Appellants submit that the RPD made the following errors in coming to its conclusions: a) the RPD erred in its assessment of his identity; b) the RPD erred in its assessment of his religious belief; c) the RPD erred in not conducting an assessment of his risk of persecution as a perceived supporter of the Tamil diaspora and LTTE; and, d) the RPD erred in not conducting a full analysis pursuant to sections 96 and 97 of the IRPA. ROLE OF THE RAD [8] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica. In assessing issues involving credibility of oral testimony, I may apply the RAD modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage as per the decision in X (Re), 2017 CanLII 33034 (CA IRB). ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [9] As provided for in subsection 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing on the basis of the record of the proceedings of the RPD, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal. Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim, or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [10] The Appellant has submitted the following documents: * Original Seaman's Book * Notices of Seizure of passports and Seaman's Book * Text conversation with individual from his ship who sent these documents to his wife in Sri Lanka. [11] The Appellant submits that the Seaman's book and notices of seizure were not available prior to the rejection of the claim as the Canada Border Services Agency (CBSA) was nonresponsive to the requests made by the RPD regarding the whereabouts of these documents. He submits that this resulted in his not being able to satisfy the RPD with respect to his identity. [12] The RAD will allow these documents into evidence. Although they existed prior to the rejection of the claim, the fact that they were not available was outside of the Appellant's control. The text conversation he has submitted provides an explanation as to how he was eventually able to acquire these documents. The RAD notes that they only came into his possession after the rejection of the claim. [13] The RAD was able to acquire from CBSA certified true copies of the Appellant's two passports and his Seaman's book.1 These documents were disclosed to counsel who was given 10 days to provide submissions in response to this disclosure. The Appellant submitted that the new evidence raises a serious issue with respect to findings relating to his credibility and identity, which were central to the decision made by the RPD. 2 Request for an Oral Hearing [14] The Appellant has requested an oral hearing based on this new evidence submitted by the RPD.3 [15] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.4 [16] The RAD is able to consider such evidence and assess its probative value without holding an oral hearing. Moreover, as discussed below, the RAD finds that the new evidence submitted by both the Appellant and supplied by the CBSA is credible and probative, and that the Appellant's identity as a Sri Lankan national has been established on a balance of probabilities. However, this new evidence does not justify allowing or rejecting the refugee protection claim given the other issues and findings discussed in the analysis below. The RAD chooses not to hold a hearing under 110(6). Personal and National Identity RPD Findings [17] The RPD found that the Appellant had not established his personal and national identity because of his failure to produce his original Sri Lankan passports (valid and expired). The RPD rejected his explanation that his passports were seized by CBSA because there was no notice of seizure in the RPD file; both CBSA and Immigration, Refugees and Citizenship Canada (IRCC) did not respond to letters from the RPD requesting information about the documents and the seizure; and the Appellant did not contact the ship's captain or company to confirm the whereabouts of his personal documents. The RPD further noted that the order of his three names was different in each of the passports and that the serial numbers on the passports were inconsistent with the documentary evidence. [18] The RPD rejected his birth certificate because his mother's date of birth was written as unknown, whereas the Appellant had provided her birth date in the refugee claim intake forms. The RPD rejected his National Identity Card as unreliable because it was not presented to the intake officer and not listed in his intake forms when the Appellant made his claim, and because it could have been acquired simply and in time for the initiation of his refugee claim. The RPD rejected his driver's license because the inconsistency in the history of his name undermined the reliability of the document. The RPD found that his marriage certificate was not reliable as it indicated that his wife was 21 years old, when in reality, she would have been 20 at the time of marriage. The Appellant explained that it was necessary to put her age of 21 in order to be eligible for marriage. The RPD found that even if it was to accept that explanation, the document would be unreliable due to a misrepresentation. [19] The RPD gave no weight to the other identity documents disclosed given its finding that the primary identity documents were not reliable on a balance of probabilities. Appellant's Arguments [20] The Appellant argues that the RPD impugned his identity primarily because he was not able to procure original or full copies of his passports and Seaman's record book. He submits that it was the Minister's obligation to disclose documents in its possession and that the benefit of the doubt should not have been shown to IRCC and CBSA when assuming that they were not in possession of his documents because they did not respond to the letters requesting them. [21] The Appellant argues that he acquired many sources of alternative identity evidence which were treated with little or no regard by the RPD. He submits that both of his passports had all of his full names, albeit in different orders, and that it was an error at the bureaucratic level. He argues that the RPD does not know the process of obtaining identity documents in Sri Lanka or the frequency of bureaucratic error. [22] The Appellant argues that the RPD erred by rejecting his birth certificate because his mother's birthdate was listed as unknown. He submits that that was not an appropriate reason to reject the validity of an original document. [23] The Appellant submits that the RPD's reasons for rejecting his National Identity Card were clearly an error as he did not have it in his possession when he made his claim and would have requested that it be sent to him only after being alerted to the fact that his other identity documents were not sufficient. He submits that the RPD rejected his other documents despite the presumption of truthfulness. He further submits that the RPD could have undertook an investigation to determine the authenticity of the documents in question, but did not do so. [24] The Appellant argues that the RPD erred by not conducting an independent analysis of the genuineness of the original identity documents that he did submit by relying on prior findings to ground its reasons for rejecting these documents. RAD Findings [25] The RAD has reviewed the record as well as the new evidence submitted with the appeal. The RAD finds that the seizure notices and certified true copies of the Appellant's two passports and Seaman's book,5 requested and received by the RAD, clearly indicate that they exist. The RAD finds that these documents are probative in establishing the Appellant's identity. Although the order of his name is different in the two passports, the RAD notes that there is a correction on page 4 of the 2014 passport which indicates that the correct surname should read as Fernando, and that all of the other information is consistent. The RAD further notes from the Appellant's travel history that both documents were used to travel around the world and were accepted as genuine by the authorities of multiple countries. The RAD finds, on a balance of probabilities, that the passports are genuine documents. [26] The RAD has considered the Appellant's birth certificate, which was rejected by the RPD because his mother's date of birth was shown as unknown. The RPD found this to be inconsistent with the Appellant's present knowledge of her date of birth. The RAD agrees with the Appellant that this was an insufficient reason for finding the document not to be reliable. The RAD finds that it was speculation on the part of the RPD that the Appellant's birth certificate would contain his mother's birthdate. The documentary evidence indicates that Divisional medical officers at the hospital complete a birth certificate at the time of birth on behalf of the Divisional Secretariats.6 The RAD finds that it is within the realm of possibilities that the medical officer who completed the certificate of birth would not have been aware of the mother's birthdate. The RAD further notes that a birth certificate is a necessary document when applying for a passport in Sri Lanka 7 and finds that this document would have been accepted as genuine given that the Appellant has had at least two passports issued to him in Sri Lanka. The RAD finds that the RPD erred in its assessment of the birth certificate. [27] The RAD has considered the National Identity Card and notes that the Appellant provided the original card at the hearing, but did not list it in his intake documents. The RAD agrees with the RPD that this is suspect as question 5 in Schedule 128 asked the Appellant to list all documents that he possessed and/or used to travel to Canada and/or could obtain that were not included in the generic application form. However, the original was provided eventually and there was nothing on the face of the document to indicate that it was fraudulent. The RAD finds the Appellant's reason for not having it when he made his claim for refugee protection to be reasonable. He testified at the hearing that he did not take it with him when he travelled outside of Sri Lanka and that it was not a document that he used very often. He testified that after he made his claim, he asked his wife to send it to him in Canada, which she did. The RAD finds the RPD erred in rejecting this document. Summary [28] The RAD has considered all the previous noted findings regarding the primary identity documents as well as the plethora of other documentation identifying the Appellant that has been submitted. The RAD finds that the Appellant has established his personal and national identity on a balance of probabilities. Religion RPD Findings [29] The RPD found that the Appellant's account of his conversion from Buddhism to Christianity and his baptism was vague and not credible. The RPD noted that despite the Appellant's alleged conversion to Christianity in 2003 or 2004, he could not discuss any basic tenets of Christianity. The RPD noted that his responses were limited to his not being associated with any denomination or sect, and that he simply believes in God and that God is alive. He was not aware of any other fundamental beliefs related to Christianity. [30] The RPD found that his account of his conversion to Christianity was vague and inconsistent, noting that there was little information in his Basis of Claim (BOC) narrative about the alleged conversion, which did not provide dates or time frames. The RPD noted that although he alleged that family members also converted, he did not provide their names, dates, or a chronological order relevant to the events of all of the conversions. He did not indicate when he started to do Christian missionary work. The RPD rejected his explanation that he did not provide such details in his BOC because he had not been in such a situation before to know that he ought to have done so, and that he instead focused on what he fears. The RPD did not find his explanation credible given the detailed instructions in the BOC form to provide dates wherever possible. The RPD further noted that in his explanation for the omission, the Appellant did not suggest that he was unaware of the dates of such events; however, in oral testimony, he could not provide consistent responses about when the events occurred. [31] The RPD found that the Appellant's oral evidence materially contradicted written evidence that he had provided. The RPD noted that the Appellant could not recall the year he converted to Christianity, only suggesting that it happened in 2003 or 2004. He could not recall the year he was baptized, or when his wife was baptized. He could not remember, and suggested that it occurred in the year 2005. The RPD found that the Appellant's testimony was evolving, which resulted in inconsistencies. The Appellant later stated that he and his wife were baptized together sometime after the year 2005, after their December 2005 marriage, and that he could not recall the year. He later confirmed that his wife was baptized in 2005 in the same year as their marriage. He then testified that his wife's conversion was gradual and that he could not provide a date for her baptism. [32] The RPD noted that the Appellant stated that he had not received a baptismal certificate and instead provided letters from Pastor XXXX of DC Ministries. The RPD gave no weight to these letters as the Appellant could not explain the inconsistency in one of the letters where it was stated that he had been baptized in 2013, which contradicted his testimony that he had been baptized in 2005. [33] The RPD placed no weight on the photographs purporting to show the Appellant's baptism as they were not supported by credible and trustworthy evidence of what was being depicted. The RPD further noted that the photographs reflect a Pentecostal baptism and that the Appellant alleged that he belongs to no specific sect of Christianity. [34] The RPD gave no weight to the letters from the church he attends in Toronto, the XXXX XXXX XXXX, given that he was unaware that this church, which he alleged he had been attending since September 2015, was associated with the Pentecostal Assemblies of Canada. The RPD did not find his explanation that he did not know that the church he attended was Pentecostal to be reasonable as the letterhead indicates that it is a Pentecostal church and that he had been living with one of the pastors from the church. The RPD furthermore noted that the Appellant was unable to state the significance of the word Pentecostal. The RPD placed no weight on the letter from the XXXX XXXX XXXX and the personal letter from a church pastor which had no letterhead. [35] The RPD found that the Appellant's testimony, that he only knew the name of the temple but not its affiliation, was not credible in view of his attendance and association with this temple. The RPD found on a balance of probabilities that the Appellant's association with this temple was for the purpose of buttressing a fabricated account of a conversion rather than evidence of a genuine religious conversion. [36] The RPD found that the letters from the Appellant's wife, parents and friends were not reliable. The RPD found that the Appellant had not reasonably explained why there was no indication in his BOC of the information contained in his wife's letter that the pastor had ceased to conduct services in the Appellant's home in August 2016 because of objections and threats. The RPD rejected his explanation - that he did not know that he should reference this information in his BOC - as the BOC instructions ask that relevant information be included and this was a material allegation. [37] The RPD rejected his parents' letter, which also noted that the religious services were conducted in their home (which they shared with the Appellant and his wife) for the same reasons. This letter indicated that the conducting of religious services at their home came to the attention of the extremist Buddhists. The RPD found that this was a material omission from his BOC. The RPD found, on a balance of probabilities, that religious services were not conducted in the Appellant's home and drew a negative inference regarding the allegation of his conversion. [38] The RPD gave no weight to the letter from his friend as their relationship described in the letter was inconsistent with that described in the BOC. [39] The RPD gave no weight to the brother's letter as it was not accompanied by any supporting identity document, did not reference his date of birth or status in Italy, and provided little information about his own conversion to Christianity which was said to be the catalyst for other family members' conversions. Appellant's Argument [40] The Appellant argues that the RPD microscopically examined the other evidence on a veritable search for errors, and zeroed in on inconsistencies and omissions to support a foregone conclusion with respect to his claim. He submits that the RPD has no specialized knowledge of how the process of conversion to Christianity works in Sri Lanka, and as such, it was improper for the RPD to make adverse credibility findings on what would constitute a genuine conversion. He argues that the RPD focused on minor and peripheral inconsistencies as grounds to reject his sworn testimony regarding his and his family's conversion to Christianity. [41] The Appellant submits that the RPD erred in not addressing the fact that he was publicly involved with Christian missionary outreach work and was perceived as doing so by Sri Lankan authorities and Buddhist extremist groups. [42] The Appellant argues that the RPD focused on his inability to remember the year of his and his wife's baptisms, and that he did not have a baptismal certificate. He submits that he had a photograph of his baptism as well as letters from his pastor confirming his church attendance and baptism. He argues that it is clear that the RPD's finding that he was not a Christian on a balance of probabilities was an error. RAD Findings [43] The RAD has reviewed the record and finds that the RPD did not err in its assessment of the religious aspect of the claim, and agrees with the RPD that the Appellant has not established on a balance of probabilities that he converted to Christianity and continues to genuinely practice that religion in Canada. The RAD has considered that the Appellant displayed very little knowledge of his religion at the hearing. Given that he allegedly converted to the religion in 2003 or 2004, and that he allegedly evangelized amongst Sinhalese and Tamil citizens in Sri Lanka, the RAD agrees with the RPD that his knowledge of the religion does not reflect his personal circumstances and background. The Appellant was asked at the hearing about fundamental beliefs related to the practice of his Christian faith and he replied that there was no specific thing. In response to subsequent questions, he did mention Christmas, Good Friday and Thanksgiving as celebration times, but did not elaborate in any way as to the significance of these holidays. The RAD concurs with the RPD that the level of Christian knowledge displayed by the Appellant at the hearing was not reflective of a person who had been practising that religion for approximately 15 years and who had evangelized to other people. [44] The RAD further agrees with the RPD that the Appellant's testimony that he was baptized around 2003, 2004 or 2005 was internally inconsistent and was also inconsistent with the pastor's letter from Sri Lanka saying that he was baptized in 2013.9 The RAD does not find it reasonable that there would be a 10 year gap between when he alleged he was baptized as compared to the year indicated by his pastor. Furthermore, the RAD agrees with the RPD that his testimony regarding his baptism was confusing and internally inconsistent. The RAD does not find this to be a peripheral matter given that the Appellant's conversion to Christianity goes to the heart of his claim and was an important event in his life. The RAD notes that he did not provide dates in his BOC regarding his conversion and practice of Christianity, whereas he did provide dates in regard to other events in his life. The RAD finds this suspect given that the BOC instructions indicate that dates should be provided, and that he was represented by competent, experienced counsel in the completion of his BOC. The RAD further notes that the Appellant has provided no documentation, such as a medical or psychological report, to indicate that he has cognitive, emotional or memory problems. [45] The RAD agrees with the RPD that no weight can be put on the Appellant's personal documentation regarding his conversion and practice of Christianity in Sri Lanka. The RAD finds that given the significant inconsistency in the letter from the pastor in Sri Lanka regarding the year of his baptism, little weight can be put on both letters from this pastor. The RAD notes that submitting a false or irregular document may have an impact on the weight assigned to other documents provided by the Appellant, especially when they are interrelated,10 and on the overall credibility of an Appellant.11 [46] The RAD has considered the letters from family members and agrees that the letter from his brother12 was vague in regard to his own reasons for converting to Christianity in 1993 and was not accompanied by any identifying documents or details. The RAD finds it suspect that the Appellant's conversion did not occur until 10 years later given that the brother's conversion was the impetus for the Appellant's and his family's conversions around 2003. The RAD agrees with the RPD that little weight can be assigned to the letters from the Appellant's mother and wife given that these letters referenced information about church services conducted by a pastor in their home, which was not included in the Appellant's BOC or in the letters from the pastor. Given this omission from his BOC and considering the findings regarding the other support letters, the RAD concurs that the family letters are not reliable documents. [47] The RAD has reviewed the photographs of the Appellant's alleged baptism and finds that they only show the Appellant in an unidentified swimming pool with another person and are therefore insufficient to corroborate that he was baptized in Sri Lanka. There is nothing in the photographs to indicate the location or the date when this occurred. The RAD agrees with the RPD that little weight can be put on these documents to corroborate the Appellant's conversion to Christianity while he was in Sri Lanka. [48] The RAD has considered all of the above noted findings regarding the Appellant's conversion and practice of Christianity in Sri Lanka and finds, on a balance of probabilities, that his conversion did not occur and that he did not practice Christianity in Sri Lanka. [49] The RAD has further considered the Appellant's practice of Christianity in Canada. The RAD agrees with the RPD that his testimony regarding his church was vague and that he did not adequately explain why he was not aware that it was a Pentecostal church given that he had been attending this church since he arrived in Canada in 2015. The RAD has further considered its earlier finding that the Appellant did not convert to and practice Christianity in Sri Lanka. The Appellant has alleged that the impetus to attend the church in Canada took place as a result of a set of circumstances which occurred in Sri Lanka. He alleged that his continued practice of his belief system in Canada is based on his adherence to his alleged practice in Sri Lanka. [50] Having found that he was not a Christian in Sri Lanka, and having no evidence of an impetus to practice Christianity in Canada, the RAD finds, on a balance of probabilities, and in the context of the findings noted above, that the Appellant joined a church and has learned about the practice of the religion in Canada only for the purpose of supporting a fraudulent refugee claim. In this context, as noted above, and on the basis of the totality of evidence disclosed, the RAD finds that the Appellant is not presently a genuine adherent of the Pentecostal Church. [51] The RAD finds that the Appellant's attendance at a church in Canada can only attest to his participation in church activities, but cannot attest to his motivation. In this regard, case law13 indicates that a pastor's assessment of the genuineness of a person's faith cannot be substituted for the assessment that the panel is required to make. The RAD gives little evidentiary weight to the Canadian pastor's letter. Further, the RAD finds that the attendance at church service does not speak to the genuineness of his convictions. Summary [52] The RAD has considered the above noted findings in regard to religion and finds that the Appellant has not established on a balance of probabilities that he is a genuine Christian who converted to that religion while in Sri Lanka. The RAD consequently finds that the Appellant's allegation of a link between his conversion and the BBS involvement in his arrests in April and October 2014 is not credible. Risk of Persecution as a Perceived Supporter of the Tamil Diaspora and LTTE [53] The RPD found that given that the Appellant was not credible in his allegation of a link between his conversion and his arrests in 2014, it did not believe the Appellant's account of having been targeted by the police, the CID or the Army as an alleged supporter of the LTTE. The RPD further found that he had not established his presence in Sri Lanka at the pertinent times given that the documents he did provide did not cover those periods. The RPD found the letter from the drugstore owner indicating that her father had treated the Appellant in regard to a 2014 assault was phrased as a certification, but was not an affidavit, and further, contained no references as to how the information was gleaned. The RPD found that the disclosure that was provided by the Appellant was insufficient to establish his presence in Sri Lanka during the pertinent times. [54] The RPD further found that the Appellant had not demonstrated with credible and trustworthy evidence, on a balance of probabilities, that any of the risk profiles in the documentary evidence applied to him. The RPD found that the evidence did not suggest that Sinhalese ethnicity alone, or coupled with employment as a seaman, was sufficient to ground a finding of a reasonable chance of persecution or risk of harm given the lack of credibility of the Appellant's allegations. The RPD found that the documentary evidence alone could not ground the claim. Appellant's Arguments [55] The Appellant argues that the RPD failed to adequately address the well-foundedness of his fear at the hands of the CID due to having worked with Tamils on ships and due to allegations of LTTE connections in the 1990s before he left Sri Lanka. He submits that when he was detained by the CID, they did not level accusations at him regarding his involvement with a Christian church or Christian missionary work. The Appellant submits that the RPD erred by finding his religion as the basis of his persecution, as it was only one aspect of his fear. [56] The Appellant argues that the RPD was obligated to review the evidence to determine whether or not, as a Sinhalese man accused of involvement with the Tamil Diaspora and having ties to the LTTE, he faces a serious possibility of persecution in Sri Lanka, notwithstanding other credibility concerns. He submits that the documentary evidence clearly outlines in various documents his risk as a man involved with the Tamil Diaspora having perceived ties to the LTTE. RAD Findings [57] The RAD has reviewed the record and has considered the previously noted findings in this decision. The RAD finds that the Appellant has not established on a balance of probabilities that he was arrested twice in 2014 because he was perceived to have connections with Tamils or the LTTE. The RAD notes from the Appellant's testimony that his arrests in 2014 were associated with his alleged conversion to Christianity, which the RAD has found not to be credible. The RAD has considered that the last time the Appellant was apprehended by the authorities was in 1997, 17 years before his alleged arrests in 2014. The RAD notes that the Appellant travelled outside of Sri Lanka multiple times since 1997 and did not experience any problems when he re-entered the country, and remained for lengthy periods, despite having worked on ships with Tamils. The impetus for his arrests in 2014, according to the Appellant, was linked to the BBS group which allegedly has close connections to the army. He alleged that phone calls he received in 2014 identified him as a person working against the Buddhists with the help of the LTTE. The individuals who arrested him referred to his conversion and his alleged association with the Tamil diaspora. [58] The RAD finds, given the above noted credibility findings regarding the Appellant's religion; the length of time since his arrest in 1997; and his ability to travel in and out of the country without problems multiple times, that he has not established on a balance of probabilities that he was arrested in Sri Lanka in 2014. The RAD further finds that the Appellant has not established, on a balance of probabilities, that he is a person of interest to the authorities in Sri Lanka for any reason. The RAD finds that the RPD's failure to fully assess the issue of risk to the Appellant as a person who has associations with the Tamil Diaspora and the LTTE, while problematic, is not fatal to its decision. However, the RAD has considered whether the Appellant's profile as a Sinhalese seaman who has worked on ships with Tamils and who, many years ago, attended a school run by a Tamil individual who was perceived to have links with the LTTE, would attract negative attention from Sri Lankan authorities and whether that attention would be the basis of a well-founded fear of persecution. [59] The RAD has considered that the Appellant has not attracted the authorities' attention since the 1990s when he was apprehended and questioned about his association with Tamils and the LTTE. The RAD acknowledges that the documentary evidence with respect to returnees is mixed, but notes that everyone, including Tamils and Sinhalese, are subjected to the same screening process as all persons returning to Sri Lanka, whether the return is voluntary or the result of a failed refugee claim.14 [60] 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,15 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. In the Appellant's personal circumstances, the RAD finds that as a Sinhalese citizen there would be less scrutiny should he return to Sri Lanka, as indicated by his multiple re-availments to the country for a period of 17 years, in which he did not experience any problems. The RAD notes the documentary evidence which identifies Sinhalese individuals who would be of concern to the authorities as: social activists; anyone critical of the government, including human rights defenders, journalists or people who are looking into the effects of the war; and anyone perceived to have an association with the Tigers or to have helped the Tigers. 16 [61] The RAD notes that the Appellant had no connections with the LTTE other than attending a school in the 1990s that was purportedly run by a person associated with the LTTE. The RAD further notes that his allegation of Sri Lankan authorities suspecting him in 2014 of such a connection has been found to be not credible, and that the Appellant has returned to Sri Lanka many times without issue. The RAD finds, in the context of credibility findings above, that there is no basis that Sri Lankan authorities would believe that the Appellant has any link to the LTTE, the primary basis for concern by Sri Lanka security officials. [62] The RAD has reviewed the risk profiles listed in the 2012 United Nations High Commissioner for Refugees (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 having established on a balance of probabilities that the Appellant is 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.17 [63] 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.18 The Appellant does not fall under these categories. [64] The RAD finds that the Appellant's return to Sri Lanka as a failed asylum seeker who has lived abroad and worked on ships would not attract persecutory attention from the Sri Lankan authorities. The RAD further finds, in the context of the totality of the 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. [65] The RAD finds, given the alleged accusations made against the Appellant in 1997 by the authorities regarding association with the LTTE, that it is reasonable to expect that he would have feared returning to Sri Lanka multiple times and that he would have experienced problems while he was in the country. The RAD does not find it credible, given his allegations of severe threats in 1997, that he would be able to reside peacefully in Sri Lanka for so many years without facing serious problems. Section 97 Analysis RPD Findings [66] The RPD found that Sinhalese ethnicity alone, or coupled with employment as a seaman, were insufficient grounds for a finding of a reasonable chance of persecution or a likelihood of a subsection 97(1) risk of harm. The RPD found that were the allegations made by the Appellant true, section 96 would apply, as a nexus would have been established. Appellant's Arguments [67] The Appellant argues that the RPD failed to adequately address his well-founded fear of persecution and that it was obliged to review the evidence to determine whether or not, as a Sinhalese man accused of involvement with the Tamil diaspora and the LTTE, he faces a serious possibility of persecution. He argues that the RPD was obliged to carry out a fulsome assessment of all aspects of the claim under section 96 and section 97, which the member did not do. RAD Findings [68] The RAD has conducted an independent assessment of the record. The RAD finds that the Appellant's argument is faulty as it reverts back to nexus grounds. The RAD finds that the Appellant has brought no evidence to show he faces any risk of harm unrelated to his race, nationality, membership in a particular social group, or perceived political opinion. The RAD therefore finds that the claim under section 97 cannot succeed. Summary [69] The RAD has considered all of the above noted findings and agrees with the RPD that the Appellant has not established, on a balance of probabilities, that he was a person of interest to the authorities in Sri Lanka or that he was detained in 2014. [70] The RAD has considered the Appellant's arguments in response to the RAD disclosure of his passports and Seaman's book that the RPD's findings regarding his credibility and identity were central to the decision. Based on the new evidence, the RAD has found that the RPD erred in finding that the Appellant had not established his personal and national identity. However, the RAD does not find this error fatal to the decision given that the RAD has conducted an independent assessment of the evidence and has found that the RPD did not err in respect to other aspects of the claim, as earlier noted. CONCLUSION [71] 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. [72] The RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection. [73] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD. (signed) "Linda Hart" Linda Hart August 31, 2018 Date 1 Exhibit RAD-1, Certified True Copies of Original Documents, Supplied by CBSA. 2 Exhibit P-3, Response to RAD Disclosure, Received August 10, 2018. 3 Ibid. 4 Section 110(6), Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 5 Exhibit RAD-1, Certified True Copies of Original Documents, Supplied by CBSA. 6 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Sri Lanka (17 July 2015), Item 3.5, Response to Information Request (RIR) LKA100502.E, Immigration and Refugee Board of Canada (15 December 2005). 7 Ibid, Item 3.4, RIR LKA104743.E, Immigration and Refugee Board of Canada (13 February 2014). 8 Exhibit RPD-1, RPD Record, Exhibit 1, p. 65. 9 Exhibit RPD-1, RPD Record, Exhibit 16, p. 447. 10 Uddin, Nizam v. M.C.I. (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002, 2002 FCT 451. 11 Gochez, Julio Cesar v. M.C.I. (F.C.T.D., no. IMM-3545-99), Dubé, September 7, 2000. 12 Exhibit RPD-1, RPD Record, Exhibit 8, p. 375. 13 Cao, Wo Ji v. M.C.I. (F.C., no. IMM-1303-08), Mosley, October 17, 2008, 2008 FC 1174. 14 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Sri Lanka (17 July 2015), Item 14.5, RIR LKA104245.E, Immigration and Refugee Board of Canada (12 February 2013). 15 Velummayilum, Thayaparan v. M.C.I. (F.C., no. IMM-11121-12), Harrington, July 3, 2013, 2013 FC 742. 16 Exhibit RPD-1, RPD Record, Exhibit 5, p. 263. 17 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Sri Lanka (17 July 2015), Item 1.5, HRC/EG/LKA/12/04, United Nations. High Commissioner for Refugees (21 December 2012). 18 Ibid, Item 14.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-14585