TB7-21684

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 / Dossier de la SAR : TB7-21684 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, ON Appel instruit / entendu à Date of decision January 8th, 2019 Date de la décision Panel Linda Hart Tribunal Counsel for the person(s) who is(are) the subject of the appeal John O Grant Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the Appellant), a citizen of Sri Lanka, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant submits that the RPD erred by not considering that the harassment he may be subjected to, should he return to Sri Lanka could amount to persecution, and that the RPD ignored evidence. [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] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND [4] The Appellant alleged before the RPD that he fears persecution at the hands of the Sri Lankan authorities. He alleged that he was questioned three times by the authorities and was accused of having information about a former member of the Liberation Tigers of Tamil Eelam (LTTE) who was a student at his English school. He alleged that the authorities called him on the phone repeatedly asking him to provide information and to assist them in locating former militants. He left Sri Lanka on XXXX XXXX, 2017 using his own passport. He fears arrest if he returns to Sri Lanka because of the prior interrogations and because he does not have a passport. [5] The Appellant's application for refugee protection was heard on August 15, 2017 and August 17, 2017. In a written decision dated August 30, 2017, the RPD rejected his claim, finding that the Appellant did not have a well-founded fear of persecution and that he is not a person in need of protection. [6] The Appellant submits that the RPD made the following errors in coming to its conclusions: a) the RPD erred by ignoring evidence; b) the RPD erred by misapplying the test for persecution; and c) the RPD erred by failing to consider the particular circumstances of the Appellant. ANALYSIS Evidence and the Particular Circumstances of the Appellant [7] The RPD found that the Appellant had failed to establish, on a balance of probabilities, that he faces persecution by the Sri Lankan authorities on suspicion of LTTE involvement or links to LTTE members. The RPD found that the Appellant did not fall within any of the risk profiles identified by the United Nations High Commisioner for Refugees (UNHCR) that would place him in a serious possibility of persecution because of his ethnicity and place of origin, which could ground a claim for refugee protection based on his residual profile. The RPD noted that there is documentary evidence indicating that Tamils returning from abroad have been subjected to screening, questioning and in some cases they face detention, arrest, and torture by state authorities. The evidence indicates that the process of screening and questioning of returnees is carried out by the authorities in order to ensure the security of the state. The RPD found that the preponderance of evidence indicates that past involvement in or association with the LTTE was key in terms of bringing returnees to the adverse attention of the authorities in causing them to face possible mistreatment. However the RPD noted that it had already found that the Appellant had not established forward facing risk of harm and as such did not face a serious possibility of persecution as a potential returnee on that basis. [8] The RPD noted that the Appellant alleged that one of the risk factors should he return was that he did not have a passport as his was taken by the agent he used to leave Sri Lanka. The RPD found that while the lack of identity documents is likely to expose the Appellant to a greater level of scrutiny and questioning upon return to Sri Lanka, this was not unreasonable considering the necessity of determining his identity and travel history in order to protect state security. The RPD found that country condition documentation did not support a finding that the Appellant would face a serious possibility of persecution due to returning to the country without a passport. [9] The RPD found that the risk factors identified by the Appellant did not establish a risk of future persecution. These risk factors were the Appellant's ethnicity as a Tamil born in the northern area of Sri Lanka; being questioned by the Criminal Investigation Department (CID) three times; and his potential return to Sri Lanka as a failed refugee claimant possessing no valid passport. [10] The Appellant argues that the RPD did not consider the documentary evidence cited in another RPD decision1. He submits that this document indicates that his lack of identity documents and failed refugee status places him at a higher risk than others. He submits that it should be considered whether the harassment he would be subjected to violates international legal standards and not whether it is domestically legal. [11] The Appellant submits that the Federal Court has stated that it is necessary to take into consideration an applicant's particular circumstances when determining the persecutory effect of potential harassment and extortion by various groups in Sri Lanka. [12] The RAD has first considered the RPD findings that were not challenged by the Appellant in this appeal. The RAD finds that it is necessary to look at these findings as they are integral to how the authorities would perceive the Appellant upon return to Sri Lanka and therefore how he would be treated. [13] The RPD found that the Appellant is not wanted by the authorities in Sri Lanka and that the authorities do not have an ongoing interest in him such that he faces the likelihood of harm. The RPD took into consideration that the Appellant only had a short classroom relationship with the student who was of interest to the authorities; the Appellant had never been arrested or charged with any crime or wrongdoing; the Appellant was never held for more than one hour for questioning and was released without conditions; the police did not take the Appellant in for questioning after XXXX XXXX, 2017 and did not visit his home, business or family members prior to his departure from Sri Lanka; the Appellant's wife who also taught at the English school did not experience any problems and was not questioned about the student or pursued; the Appellant's retention of an agent was only to assist him in travelling because he had no experience in travelling abroad; and the Appellant had no problems leaving Sri Lanka using his own passport. The RPD concluded from these factors that there is not a serious possibility of persecution for the Appellant should he return to Sri Lanka. The RPD additionally found on a balance probabilities that the Appellant was not telephoned and threatened by the authorities after he was questioned, because of credibility concerns. [14] The RAD, after reviewing the record, agrees with the RPD's analysis of the risk faced by the Appellant based on his alleged association with a former member of the LTTE. The RAD finds that the Appellant has not provided sufficient evidence that would indicate that the authorities linked him to the LTTE as an individual with past, perceived or real association with that organization. The RAD finds from the Appellant's evidence that the authorities were primarily interested in getting any information they could about the student who was a former member of the LTTE. As noted by the RPD, the authorities never initiated charges against the Appellant, but rather questioned him briefly each time and released him without any conditions. The RAD agrees with the RPD that the Appellant's evidence about subsequent threatening phone calls was vague and lacking in spontaneity and that on a balance of probabilities these phone calls did not occur as alleged. The RAD finds that the Appellant's wife's letter does not overcome credibility concerns identified in the RPD decision and places little weight on this document as corroboration.2 The RAD has further considered that as a co-owner of the school with her husband, his wife was not subjected to any questioning about the former student and did not experience any personal harm because this former LTTE individual had been a student in her school. Although she has alleged in the letter that she was questioned by the authorities, this questioning was about her husband and not about the former student. The RAD does not find it plausible that the Appellant's wife would not also be questioned if the authorities were concerned about the former LTTE member's association with the school and there was a perceived relationship with the LTTE. The RAD finds on a balance of probabilities that the Appellant was not considered by the authorities as an individual involved with or associated with the LTTE and their activities. [15] The RAD finds, after considering the personal circumstances of the Appellant, that the RPD did not err in finding that the Appellant did not fall within any of the risk profiles identified by the UNHCR.3 [16] The RPD notes from the documentary evidence that returnees subjected to detention, force and other abuses are likely to fall within the profiles of past, perceived, or real association with the LTTE; persons critical of the government; persons with significant political or military involvement against the government; and persons actively involved in prohibited Tamil diaspora groups/organizations and functions to further post-conflict Tamil separation. The RAD has already found that the Appellant has not established that the Sri Lankan authorities perceive him to have links to the LTTE. There is no evidence on the record that any of the Appellant's family members were members of the LTTE, or that the Appellant has been involved in any diaspora activities organized by prohibited groups/organizations or any other political activities critical of the government or linked to the LTTE that would bring him to the attention of the Sri Lankan authorities. The RAD finds that he would not be exposed to any greater risk upon return given that living abroad as part of the diaspora, does not in and of itself, lead to a serious possibility of persecution. [17] The RAD finds that while remaining outside of Sri Lanka for a long period of time may subject the Appellant to higher screening at the airport in the form of questioning about his activities abroad, this in and of itself does not amount to persecution. The RAD finds that the Appellant would not face a serious possibility of persecution in Sri Lanka as a failed refugee claimant. [18] The RAD has further considered that the Appellant does not presently have a Sri Lankan passport. Although the Appellant has alleged that he read in the news that individuals who return to Sri Lanka without their passports can be arrested, he has not provided any documentation to support this allegation. The RAD has reviewed the documents contained in the record and finds that there is nothing in the documentary evidence stating that a person who returns to Sri Lanka without a passport will be subject to arrest. The RAD agrees with the RPD that the country conditions documentation does not support a finding that the Appellant will face a serious possibility of persecution due to returning to Sri Lanka without a passport. [19] The RAD has considered the Appellant's argument that the RPD did not consider a Response to Information Request (RIR) referred to in another RPD decision.4 Unfortunately, the RAD is not certain which RIR the Appellant was referring to as he did not quote the RIR number. As far as the RAD can tell the only RIR referred to in the paragraphs quoted in the memorandum is item 13.1 from the NDP. The RAD notes that this RIR indicates that Tamils returning from abroad would be subjected to a higher screening at the airport. As noted earlier the RAD finds that this does not necessarily amount to persecution or serious possibility of persecution. The document also indicates that arrests and detentions of those with alleged links to the LTTE continue, but that they have been reduced, and according to the Executive Director of the Northern Provincial Council (NPC), arrests and detentions are not common unless for some reasonable suspicion of criminal activities. As noted earlier, the RAD has found that the Appellant would not be perceived as someone associated with the LTTE. There is no evidence on the record that he was ever been involved in any criminal activity. Given his particular circumstances the RAD finds, as noted earlier, that although the Appellant may be subjected to a higher level of screening at the airport because he is a Tamil who has lived abroad, there is not a serious possibility that this treatment would amount to persecution. The RAD notes that there is no evidence on the record that the Sri Lankan authorities would be aware that the Appellant had made a refugee claim in Canada and had been rejected. [20] He may face some harassment upon return to Sri Lanka; however, the RAD finds that it would not be sufficiently serious to amount to a serious possibility of persecution. Test for Persecution [21] The RPD found that there is not a serious possibility that the Appellant would experience persecution as a result of the higher level of screening that he could be subjected to because he is a Tamil from the north who lived abroad. [22] The Appellant argues that the RPD misapplied the test for persecution. [23] The RAD has considered that the UNHCR Handbook states in Article 54 that: Differences in treatment of various groups do indeed exist to a greater or lesser extent in many societies and that persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, such as serious restrictions to his right to earn his livelihood, his right to practice his religion, or his access to normally available education facilities.5 The RAD finds that the Appellant would not be subjected to this sort of discrimination. [24] The RAD finds that, given the Appellant's profile and previous experiences in Sri Lanka, there is not a serious possibility that he would be subjected to harassment amounting to persecution, or serious harm, should he return to that country. Although the Appellant has argued that being questioned at the airport would violate international legal standards, he has not provided fulsome submissions in what way this would be a violation. The RAD notes that even in Canada citizens may be stopped upon return to the country and questioned for a variety of reasons. [25] The RAD has considered all of the findings made by the RPD that were not contested by the Appellant in this appeal and with which the RAD agrees, as well as the findings made by the RAD in this decision. The RAD finds, given the Appellant's particular circumstances and profile, that there is not a serious possibility that he would be subjected to persecution upon return to Sri Lanka. The RAD finds that the RPD did not err in its assessment of the evidence and in its findings. CONCLUSION [26] The RAD has conducted its own assessment of the evidence and finds that the RPD did not err in concluding that there was not a serious possibility that the Appellant would suffer persecution upon return to Sri Lanka or that there are substantial grounds to believe that he would be tortured, or at risk of losing his life or being subjected to cruel and unusual treatment or punishment if he returned to his home country. [27] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "Linda Hart" Linda Hart January 8th, 2019 Date 1 Exhibit P-2 2 Exhibit RPD-1, Exhibit 6 3 ibid., Item 1.4, United Kingdom. Home Office (August 2016), Item 2.6, A/HR/34/20, United Nations. Human Rights Counsel (10 February 2017), Item 13.5, A/HRC/34/53/Add.3, United Nations. Human Rights Council (31 January 2017) and Item 14.5, RIR LKA104245.E, Immigration and Refugee Board of Canada (12 Feburary 2013). 4 Exhibit P-2 5 United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status. Geneva: 1979. Article 54. P.14 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-21684 RAD.25.02 (September 18, 2018) Disponible en français 8 RAD.25.02 (September 18, 2018) Disponible en français