TB5-12922

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 : TB5-12922 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 9, 2016 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Warda Shazadi Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of Sri Lanka, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that as a young Tamil male whose father worked with the Liberation Tigers of Tamil Elam (LTTE), he faces persecution at the hands of the military and other groups in Sri Lanka. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the transcript of the hearings. [4] The Appellant's application for refugee protection was heard on December 10, 2014 and September 22, 2015. A negative decision was rendered in writing on November 5, 2015. The RPD found that the Appellant was unable to establish that he would be at risk should he return to Sri Lanka as he had once done so without undue incident shortly before coming to Canada. [5] The Appellant submits that the RPD erred in its assessment of the Appellant's credibility. [6] The Appellant submits that the RPD made erroneous findings of fact. ANALYSIS Role of the RAD [7] The RAD finds that the recent Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [8] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in reaching its conclusions. Admissibility of Evidence Submitted on Appeal [9] Section 110(4) of the IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected3 in the circumstances to have presented, at the time of the rejection. [10] It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellants.4 Application of Section 110(4) [11] Section 110(4) establishes a disjunctive test.5 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [12] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.6 [13] As the RAD understands it, Section 110(4) provides the Appellants with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellants could not have been expected to present it to the RPD. [14] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.7 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [15] Where a document meets the test in Section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While Section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, or is immaterial to the issues to be considered by the RAD, it would make little sense to admit such a document, even if it meets the test in Section 110(4). [16] The RAD has, in many appeals to date, applied the factors set out by the Federal Court of Appeal in Raza.8 While Raza predates the introduction of the IRPA Section 110(4), it is based on the nearly-identical wording of Section 113(a). The Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.9 The RAD presumes that Parliament, in creating Section 110(4), was well aware that this provision is almost identical in wording to Section 113(a)-which provides a strong indication that Parliament intended the test from Raza to be used by the RAD.10 [17] In Iyamuremye,11 the Federal Court accepted the RAD's application of the factors in Raza to new evidence submitted on an appeal under the IRPA. Subsequently, in Ghannadi,12 the Court held that the RAD should consider the factors in Raza, but noted that these are merely considerations to be taken into account and not necessarily determinative of admissibility. In Singh,13 the Court found that the factors in Raza are based specifically in the language of Section 113(a) and are not transferable in the context of an appeal before the RAD. The Court found that it was unreasonable for the RAD to strictly apply the Raza factors without distinguishing its own role from that of a Pre-Removal Risk Assessment (PRRA) Officer who is bound by Section 113(a).14 [18] In Singh, the Court wrote that: ...in order for there to be a "full fact-based appeal" before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur. Often, the evidence at stake will be essential for proving the factual basis of the errors the claimant alleges were made by the RPD. This consideration becomes all the more pertinent in light of the strict timelines a claimant now faces for initially submitting evidence before the RPD. A claimant now has 50 days to present all documents from the date he or she made the claim; the previous legislative scheme required the documents 20 days prior to a hearing, which, on average, took much longer to take place. When the RPD confronts a claimant on the weakness of his evidentiary record, the RAD should, in subsequent review of the decision, have some leeway in order to allow the claimant to respond to the deficiencies raised.15 [19] The Court also held that the "main issue is whether the evidence 'was not reasonably available, or that the person could not reasonably (or normally according to the French version) have been expected in the circumstances to have presented.'"16 [20] The Court did not discuss Iyamuremye or Ghannadi in its analysis of Sections 110(4) and 113(a). It did, however, certify the following question: In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? [21] The question of whether the Raza factors are applicable to evidence that passes the test in Section 110(4) is still unsettled.17 It has been found that the application of the Raza criteria by the RAD is reasonable;18 it has also been held that the application of those factors without modification is an error.19 The Raza factors have also been described by the Court as "useful guidance."20 [22] While trusting that the matter will eventually be resolved by the Federal Court of Appeal, the RAD must nevertheless continue to consider new evidence, such as that which has been submitted in support of this appeal. Although it may be inappropriate to strictly apply the factors in Raza, given that they are not specific to Section 110(4) and were not crafted for use in an appellate process, the RAD's consideration of new evidence cannot end with the application of the test in Section 110(4). To limit its analysis to that provision would be to ignore other provisions of the IRPA-such as Sections 162(2) and 171(a.3). Such a restricted analysis would also require the RAD to accept "new" evidence even if it is irrelevant, immaterial, or lacking in credibility. [23] In Denbel, the Federal Court held that: When interpreting legislative intent, the Court must give priority to the written text in the absence of any lexical ambiguity. The Court's opinions on best policy cannot supplant the text of the law; nor can select passages from the Hansard. In my view, Parliament intended these two provisions to enshrine the same legal test. If Parliament had intended to establish more flexible admissibility rules in RAD appeals, it would not have replicated the restrictive language which governs PRRAs.21 [24] The RAD will therefore undertake an analysis of any proposed new evidence, not only for its timeliness, which is largely the focus of Section 110(4), but also to consider whether it has evidentiary value and, if so, how much. While the factors in Raza are indeed helpful guidance, the RAD would undertake a very similar analysis even if it would completely disregard that decision. [25] Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in Section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [26] While the IRPA makes specific reference to the credibility of evidence received by the RAD, there is no corresponding provision which addresses relevance. However, in the RAD's view, it is obvious that evidence must be assessed for its relevance.22 Apart from the support from the case law, it would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to Section 162(2) of the IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [27] It is therefore appropriate for the RAD to consider whether new evidence is relevant, even if it meets the test in Section 110(4). [28] The RAD will also consider whether the proposed new evidence is material. In Raza, the Federal Court of Appeal described this factor: "Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered." This factor may, in the RAD's view, set an inappropriately high standard in the context of a RAD appeal. [29] An officer determining a PRRA application must not engage in a review of the applicant's negative RPD decision. The PRRA process exists to determine whether a risk to the applicant has arisen between the date of issue of the RPD's decision and the date of the applicant's pending removal from Canada,23 and the officer has no power to reconsider or set aside the RPD's decision. A PRRA will in most cases take place a year or more after the RPD's decision.24 In this context, the definition of materiality set out in Raza makes good sense: the new evidence must be so significant that it would have led to a different outcome before the RPD. [30] However, as the Court noted in Singh, the RAD context is considerably different. The RAD is not restricted to making a new assessment of the risk faced by the Appellant, though this could occur as a result of new evidence presented upon appeal. The RAD appeal is meant to be decided within four or five months of the RPD's decision. The Appellant may challenge the decision of the RPD, and the RAD has broad powers to review that decision for errors of fact or law, or mixed fact and law, to confirm the decision, to confirm on other grounds, to set aside the decision and substitute another, or to set aside the determination and refer the matter back to the RPD for redetermination. It is of paramount importance that the RAD may look only to admissible new evidence when considering whether to hold a hearing under Section 110(6).25 [31] The Court's definition of materiality, which is appropriate for evidence presented in support of a PRRA application, seems overly restrictive when applied to evidence submitted in an appeal to the RAD. If the RAD were to apply the materiality factor as defined in Raza, it could lead to the rejection of evidence that is capable of showing that the RPD's decision was in error, only because that evidence is not so strong that it would have resulted in the acceptance of the refugee claim had the evidence been before the RPD. Further, the RAD is not asking-as the PRRA officer is under Raza-whether the RPD decision would have been different. The RAD is considering whether the RAD thinks the determination should have been different or whether the RPD decision was in error. [32] For example, it is not uncommon for the RPD to reject a refugee claim on the basis that the claimant has not established his or her identity, and in such situations, the RPD is not required to go further to consider the evidence of persecution.26 A claimant rejected by the RPD on the basis of identity-perhaps because identity documents were still in transit from the country of origin at the time of the refugee hearing-might appeal to the RAD and present as new evidence such recently-received documents. However, those documents might be rejected by the RAD if it considers their materiality as defined in Raza: whether the refugee claim would probably have succeeded if the documents were made available to the RPD. In many cases, the establishment of identity does not in and of itself warrant the acceptance of a refugee claim, and therefore the Appellant's newly-obtained identity documents could be rejected by the RAD as lacking materiality, even though they could be the basis for a successful appeal. [33] In the RAD's view, this restrictive approach to materiality is not consistent with the broad powers given to the RAD. While the PRRA officer is required to focus on a single issue-risk to the applicant-the RAD is required to consider both whether the RPD decision is in error and, after having reviewed all of the evidence, whether the Appellant is a protected person. An approach that focuses on whether the evidence is material enough to affect the outcome of the RAD appeal rather than the RPD's decision is therefore preferred. [34] For these reasons, the RAD will apply the following factors to evidence that passes the test in Section 110(4). [35] The RAD will consider whether the proposed new evidence is credible or trustworthy. [36] The RAD will assess the relevance of the evidence-whether it is capable, together with the other evidence in the record (including other admissible new evidence) of proving or disproving a fact at issue in either the refugee claim or the appeal.27 [37] The RAD will determine whether the evidence is material, in the sense that it could be capable of justifying, with or without the benefit of an oral hearing, as the case may be, a disposition under Section 111 of the IRPA. [38] If the proposed new evidence does not meet each of the factors above, the RAD may choose not to admit it. These factors, however, are not exhaustive, as the RAD may consider other factors as appropriate in the circumstances. [39] The Appellant has submitted the following evidence for consideration by the RAD: a) The Appellant's affidavit, dated and sworn December 15, 2015. b) A letter from XXXX XXXX dated December 9, 2015. c) A letter from XXXX XXXX dated December 4, 2015 and sealed (sworn). d) A letter from Mrs. XXXX XXXX dated December 15, 2015. e) A letter from S. XXXX XXXX XXXX XXXX, dated December 12, 2015. [40] Each of the above documents speak to or about the Appellant's father and/or mother. Each of these documents, although postdating the decision of the RPD fail the test of Section 110 (4). [41] Section 110(4) establishes a disjunctive test.28 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. [42] The Appellant argues that the affidavits in question were only recently provided to the Appellant and as such, post-date the Appellant's hearing. After the rejection of the claim and on noting the RPD's credibility finding regarding his political profile, the Appellant obtained these letters to demonstrate the circumstances of his parent's deaths as well as the 2009, 2010 and 2014 incidents. Therefore this new evidence was not reasonably available to the Appellant in time to provide to the RPD prior to the refusal of the claim. [43] The RAD disagrees. In this case, even though the letters were written post hearing, the information in them was available to the claimant at any time prior to the hearing had he requested it. It is not for the RAD to allow an Appellant to "patch the holes" in his RPD claim presentation by allowing into evidence at appeal, information or supportive documentation which could have been presented at the hearing. The onus is clearly on the Appellant and especially so if represented by counsel, to present his best possible case to the RPD. Such presentation would reasonably include any and all supportive evidence such as the affidavits now disclosed. Even if the RAD were to consider that the documents pass the test of Section 110(4), the RAD would not allow the documents into evidence simply because they are not material to the claim. They are relevant but they would not change the outcome of the decision only because the letters mostly speak to the death of the Appellant's father in 1991. The letter from XXXX XXXX is virtually unintelligible. The letter from XXXX XXXX speaks only to the subject of the Appellant's parents' deaths. The issue of whether the father was killed by an army bullet or by a navel shell is not material to the claim. Whether the Appellant lied to the Canadian Border Services Agent by saying that his father was "shot by the army" instead of that his father was "blown up by the navy" is such a minor issue in the totality of the appeal that it is not a concern on its own for the RAD. The letter from Mrs. XXXX XXXX does speak to a visit from the police which allegedly occurred in XXXX of 2014, which is almost one year prior to the RPD decision so this is not new information but information that the Appellant could have obtained in time for his second hearing in September 2015, had he tried. The last document, from the "XXXX XXXX" tells of the Appellant's problems of 2009 and 2010. This is old information and fails the test of Section 110(4). The primary issue here is not how his father died specifically, but that his father was working with or for the LTTE when he died. The RPD recognizes that "it is possible that his father had connections to the LTTE"29 and nowhere in the Decision does the RPD deny that the Appellant's father was connected to the LTTE. The letters submitted are "not new". These documents will not be allowed as new evidence. The RPD's Findings [44] The Appellant argues that the RPD erred in its assessment of the Appellant's credibility. Specifically, the Appellant refers to the issue of his parent's deaths. The RPD had issues with the credibility of his story. The Appellant had testified that his mother had died of a XXXX XXXX, however, in the Point of Entry notes, during his first interview with the immigration officials, the Appellant told the officials that his mother was killed by the Sri Lankan Army (SLA).30 The Appellant, when faced with the inconsistency, testified that he had told the officials that his mother had died because of the Sri Lankan army but never mentioned that she was shot or killed by the Sri Lankan army. The RPD also had issue with inconsistencies over the father's death. In his immigration interview, the Appellant told the official that his father had been shot by the Sri Lankan army. In his sworn testimony31 the Appellant testified that his father "died as a result of navy shelling". When confronted with this inconsistency, the Appellant testified that the agent who helped him to leave Sri Lanka told him to say that the army shot his father. Later in his testimony32 the Appellant confirms that it was the navy who killed his father. This is obviously contradictory, and to complicate things even further, in his Memorandum of Argument the Appellant clearly writes "The Appellant maintains that his father was shelled by the army." The RPD inferred negative credibility over this issue. The RAD finds that the RPD did not err in this assessment. [45] There was an issue of credibility raised over the interpretation of the death certificate of the Appellant's father. The Appellant argues that the RPD misread the certificate. The RPD wrote that the death certificate read that the Appellant's mother "was present at death" (of the Appellant's father) while the Appellant's interpretation of the certificate says it actually reads she was "present where the death occurred". This subtle difference could suggest that the mother, at some time after the death of the father, attended the location in order to collect or identify the remains. The RPD took issue with the interpretation of the certificate as it was inconsistent with the Appellant's testimony that his mother was not present when his father was killed. Interpreting what exactly is meant by the phrase "present where the death occurred" is difficult. It could mean that the mother came after to pick up the remains however, that is not likely. The death certificate is a document which sets out the issues of death, who was killed, how he was killed, where he was killed and who was with him when he was killed (witness) and perhaps more. However, it would seem implausible for a death certificate to indicate on it information concerning someone other than the victim for any reason other than identifying possible witnesses for future reference. The RAD has no expertise in regards to Sri Lankan death certificates so can only use common sense on this issue. The RPD's assessment of this issue makes more sense than not. In the RAD's own independent assessment of this issue the RAD concurs with the RPD that this is an inconsistency. Consequently, the RAD finds that the RPD did not err in this issue. [46] The Appellant argues that the RPD made erroneous findings of fact. The first issue argued is that the RPD erred when it wrote that the Appellant had no difficulties on his recent return to Sri Lanka. The Appellant had testified that he was held in detention for a day and a half at the airport and that he was questioned about his father's ties to the LTTE. The Appellant is correct. The RPD erred in the language it used here. Being detained for 36 hours and questioned is certainly a difficulty. However, the Appellant had just been deported for travelling on fake documents and was held in custody in the Colombo airport by airport police, not the Criminal Investigation Department CID. The Appellant was questioned only about personal information and was released without restrictions. The detainment is certainly a difficulty for anyone. Had the RPD clarified what it meant by "difficulties" (i.e.: being arrested and detained by the CID) it would have been better, however, as it did not clarify its meaning the RAD must agree with the Appellant on this issue. In so doing, however, the RAD notes that the difficulties faced by the Appellant upon his return to Sri Lanka were not related to his background or that of his parents but only to the issue of his illegal use of documents and the subsequent forced return to Sri Lanka. Contrary to the Appellant's argument, however, this minor difficulty does not mean he is a person of interest to the Sri Lankan authorities. Had this been true, on a balance of probabilities, the Appellant would have been turned over to the CID for further questioning, which he was not. [47] The Appellant argues that the RPD erred in fact by stating that the Appellant had already returned to Sri Lanka as a failed asylum seeker. The Appellant refers to paragraph 38 on page 10 of the Reasons and Decision.33 The problem for the Appellant is that nowhere in that reference does the RPD say that. The paragraph reads as follows: (38) All individuals being returned to Sri Lanka are subject to an interview with CID, regardless of ethnicity. Those with a criminal record and those wanted for connections with LTTE can be arrested immediately. Authorities at the airport have access to an alert list, but there is no evidence to suggest that all individuals who have problems with the Sri Lankan authorities are place on this alert list. I find that the claimant's name is not on this alert list, as indicated by the treatment he received by the authorities upon his return to Sri Lanka after he was denied admission to Vietnam. The claimant did not exit Sri Lanka illegally as he used his own passport. Therefore he is not at risk because of illegal exit, which is a factor that subjects a failed asylum seeker to greater scrutiny. [48] The above paragraph does not suggest that the Appellant was returned to Sri Lanka as a failed asylum seeker but does make a comparison in the last sentence to the greater scrutiny subjected to one who is a failed asylum seeker and of the profile of the Appellant. The RPD did not err in this issue. [49] The Appellant argues that the RPD erred and was incorrect in stating that the authorities were not interested in the Appellant because he was not picked up after returning from Vietnam. The Appellant refers to a document which, although it was submitted as new evidence to the RAD, was not accepted as new evidence as it was reasonably available to the Appellant before the RPD decision was rendered. As this document was not accepted as evidence, then the RAD cannot consider it or its content. There is, therefore, insufficient evidence adduced to convince the RAD that the RPD erred in fact on this issue. The RAD finds that the RPD did not err in this regard. [50] The Appellant argues that the RPD erred in finding that the Appellant does not have a well-founded fear of persecution. The Appellant reminds the RAD that he had been abducted in 2009 and subject to physical abuse while being questioned about his father. The Appellant further reminds the RAD that the Appellant was again taken away from his home, questioned about his father and beaten with a wooden stick in XXXX of 2010, and lastly the Appellant reminds the RAD that he was detained for one and a half days in 2014 upon return to the Colombo airport after being deported from Vietnam. The Appellant argues that all of these incidents indicate that the Appellant's fear is well-founded. [51] The RAD, having analysed the entire file and having read the transcripts of the hearings and all other relevant material, disagrees with the Appellant. The first incident mentioned above occurred in XXXX of 2009. The government had just the month before declared that the Tigers (LTTE) were finally defeated even though its newest leader was still at large.34 Young Tamil males were still being harassed especially in an area formally held by the LTTE. Although believed to be affiliated with government forces, the people who grabbed the Appellant were not identified as government agents except as speculation on the part of the Appellant, who was basically grabbed, questioned and then robbed and thrown out of the van that his abductors used. [52] In 2010, the Appellant was picked up and questioned regarding his father. During questioning, he was beaten with a wooden stick. This incident was at the hands of the Sri Lankan Army (SLA). The SLA robbed him of his cash and dropped him off on the side of a roadway. Although this incident was government sponsored and certainly was harassment, on its own it is not persecution. The war was now over, but only recently, making such incidents, although disgusting in nature, still less unusual in the formerly LTTE held regions. The key fact here is that the Appellant was again released on his own recognizance. It is highly improbable that the SLA would release him if they truly suspected he had serious links to the LTTE. [53] In 2014, the Appellant was held for one and a half days at the airport after being deported from Vietnam. Detention and questioning of any person returning via deportation would not be unusual. Although the Appellant states in his Memorandum that he was questioned for that one and a half days about his father, the transcript of the hearings indicates that this is not so. When questioned by the RPD on what occurred at the Sri Lanka airport upon his return, the Appellant testified that he was asked a lot of personal questions including who his parents were and how they died. The Appellant testified that he told the police that he was only one year old when his father died so could not tell them anything. When asked directly by the RPD, "Did the officer know that your father had been a member of the movement?" the Appellant's reply was "No". When the RPD then asked "Did you tell the officer?" the Appellant testified "No". For the Appellant to suggest that the police questioned him about his father's ties to the LTTE35 is unsupported by the evidence. According to his own sworn testimony, he was asked how his father died and replied that he did not know as he was only one year old at the time. There was no indication and no evidence produced to suggest the police pursued the issue of his father's death and definitely no suggestion that the police interrogated him about his father's connections to the LTTE. [54] The RAD, in its independent analysis of this case, finds insufficient evidence adduced to convince the RAD that, at this time and looking forward, this Appellant would be of any special interest to the Sri Lankan authorities. The Appellant has suffered some indignities in 2009 by unknown assailants who may have been government people or not. In 2010 the Appellant suffered at the hands of the SLA for a short stay and was robbed and beaten. Nothing happened to him after 2010 that was related to his ethnicity and his father's connections to the LTTE. The incident of 2014 occurred because the Appellant was caught using fraudulent documents to enter Vietnam, resulting in his deportation to Sri Lanka where he was, rightfully, interrogated by the airport police/immigration. Although his testimony shows that the airport police did ask about his parents, it was obviously just one of many questions and held no specific meaning regarding the LTTE. The Appellant has been in the hands of the Sri Lankan authorities at least twice, three times if the 2009 incident was actually government sponsored. In each case, after some distressing time, the Appellant was released. From 2012 until he departed in 2014, the Appellant held a responsible job as XXXX XXXX XXXX for the XXXX, in Jaffna. During that time, in a fairly public profile job, he never was bothered by anyone in the government or anyone working for or with the government. Even when the Appellant went to Colombo for his XXXX XXXX where he was interviewed by the CID, he was not bothered. It is likely true that CID's questions were aggressive in nature but one must consider that the Appellant was being interviewed for the privilege of carrying a firearm. It is perfectly reasonable to expect the CID to be aggressive in their questioning. The Appellant alleges no threat from the CID other than the admonition given him when the CID officer told him that if it was found out that he was connected to the LTTE, he would be arrested. This is not persecution and this is not indicative of the government suspecting the Appellant of being connected to the LTTE. [55] The core of this appeal is that the RPD erred in its credibility assessments, thus tainting the entire decision. The RAD has found that the RPD did err in one assessment however, that error was insufficient to be fatal to the decision. [56] The next equally important issue presented by the Appellant was that the RPD erred in fact. The RAD found that the RPD did make one error of fact when the RPD wrote that the Appellant had no difficulties at Colombo airport upon return from Vietnam. The RAD found that this was an error of fact as the appellant had been detained at the Colombo airport for one and a half days upon his return. This error is not fatal because the detention was not because of any suspected LTTE ties but was due to the Appellant being deported from Vietnam. There were no other errors of fact in this case. [57] The RAD must consider the future for this Appellant. He would be seen to have a nexus to the Convention simply because of perceived political opinion. As a Tamil, it is generally thought by the Sinhalese majority that he would support the LTTE. This may give rise to discrimination in some areas of Sri Lanka, however, there is insufficient evidence to convince the RAD that this would give way to persecution. [58] The United Nations High Commissioner for Refugees (UNHCR) has issued a list of profiles of individuals36 who would be at higher risk of persecution if forcibly returned to Sri Lanka. There are eight profiles listed by the UNHCR. Those profiles are: (i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) certain opposition politicians and political activists; (iii) certain journalists and other media professionals; (iv) certain human rights activists; (v) certain witnesses of human rights violations and victims of human rights violations seeking justice; (vi) women in certain circumstances; (vii) children in certain circumstances; and (viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances. [59] Of the above listed profiles, only one may be relevant to this Appellant, however, insufficient evidence has been adduced to convince the RAD that the government of Sri Lanka has anything more than a passing interest in the Appellant. No evidence has been proffered which would convince the RAD that the Sri Lankan government suspects this Appellant of having any real connections to the LTTE, beyond his long dead father who he really never even knew. The RAD finds that the Appellant does not have the profile necessary for him to be at risk to his life, or to torture or to cruel and unusual treatment or punishment should he return to Sri Lanka. Disposition [60] The RAD has found that the RPD decision will stand. CONCLUSION [61] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe February 9, 2016 Date 1 Exhibit P-2, Appellant's Record, at pages 24-36 (BOC) and pages 40-135 (transcript of hearings). 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, para 51. 4 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 5 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, October 29, 2014, 2015 FC 895, para. 19. 6 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55. 7 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 16. 8 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 9 Ibid, Raza, paras. 13-15. 10 The presumption of consistent expression holds that "it is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings." Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008) at pp 214-15. 11 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 45. 12 Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, paras 17-18. 13 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 56. 14 See also Khachatourian, Robert v M.C.I. (F.C, no. IMM-4928-14), Noèl, February 13, 2015, 2015 FC 182, para. 37. 15 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 55. 16 Ibid., para. 58. 17 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 56. 18 For example, Oluwole, John v. M.C.I. (F.C., no. IMM-6525-14), Southcott, August 14, 2015, 2015 FC 953, paras. 10 and 39; Ismailov, Dilshod v. M.C.I. (F.C., no. IMM-6839-14), Strickland, August 13, 2015, 2015 FC 967, para. 59; Denbel, Bekelech v. M.C.I. (F.C., no. IMM-3827-14), Mosley, May 13, 2015, 2015 FC 629, paras. 40-44. 19 For example, Shukurov, Sharof v. M.C.I. (F.C., no. IMM-6058-14), Fothergill, August 6, 2015, 2015 FC 949, para. 26; Ajaj, Firas Salem Munef v. M.C.I. (F.C., no. IMM-5604-14), Gascon, July 28, 2015, 2015 FC 928, paras. 61-63; Ching, Wai Kheong v. M.C.I. (F.C., no. IMM-1272-14), Kane, June 9, 2015, 2015 FC 725, para. 56; Khachatourian, Robert v M.C.I. (F.C, no. IMM-4928-14), Noèl, February 13, 2015, 2015 FC 182, para. 37. 20 Niyas, Mohamed Zayan v. M.C.I. (F.C., no. IMM-6829-14), Locke, July 17, 2015, 2015 FC 878, para. 27. 21 Denbel, Bekelech v. M.C.I. (F.C., no. IMM-3827-14), Mosley, May 13, 2015, 2015 FC 629, para. 43. 22 There is a great deal of support for this view. "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministery of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 23 Cupid, Keturah Laverne v. M.C.I. (F.C., no. IMM-1737-06), Snider, February 16, 2007, 2007 FC 176, paras. 4, 25, and 26. 24 IRPA, s 112(b.1). 25 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 53. 26 Liu, Lanfen v. M.C.I. (F.C., no. IMM-4384-06), Barnes, August 10, 2007, 2007 FC 831, para. 18. 27 See Raza at para. 13.4; also David Paciocco & Lee Stuesser, The Law of Evidence, 3d ed. (Irwin Law, 2002) at 24: "Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence." 28 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, October 29, 2014, 2015 FC 895, para. 19. 29 Exhibit RPD-1, RPD's Record, Reasons and Decision, at para. 20. 30 Exhibit P-2, Appellant's Record, at p. 1000. 31 Exhibit P-2, Appellant's Record, at p. 69. 32 Exhibit P-2, Appellant's Record, p. 71. 33 Exhibit P-2, Appellant's Record, at p. 10. 34 National Documentation Package (NDP) for Sri Lanka (July 17, 2015), item 1.9. 35 Exhibit P-2, Appellant's Record, Memorandum, at para. 83, p. 1052. 36 NDP for Sri Lanka (July 17, 2015), item 1.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-12922