TB5-01811

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 : TB5-01811 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 May 12, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du 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 not submitted new evidence in support of this claim and he has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and grant his appeal. DETERMINATION [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. The appeal is dismissed. Background [3] The Appellant alleged in his Basis of Claim (BOC) form. In 2012 his family was questioned about helping the Liberation Tigers of Tamil Eelam (LTTE) and because of his age he was suspected of most likely helping the LTTE. He was taken to the police station, beaten and detained for three hours. As a result the family left XXXX and went to Colombo. [4] On July XXXX, 2014, he was arrested and taken to a police station. He was told he was suspected of helping the LTTE, beaten and threatened. He was released after two days when his father paid a bribe. [5] His father arranged for an agent to obtain a United States of America (USA) student visa and he left Sri Lanka on XXXX XXXX, 2014. He had no family in the USA so he came to Canada where he has relatives. The Issues [6] The panel indicated the determinative issues are credibility and well-founded fear of persecution. [7] The Appellant submits the issues in this claim are the following: [8] What is the role of the RAD; whether the evidence supports a risk to Tamil returnees; whether the panel used the appropriate test in the consideration of his credibility; and whether the panel was unreasonable in its implausibility findings concerning the move to Colombo, the certification of educational documents, police follow up, and failure to claim in the United States The Role of the RAD [9] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [10] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [11] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [12] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. [13] The Appellant provides an extensive analysis of the statutory regime concerning administrative appeal tribunals. The RAD provides above an analysis of its view concerning its role in this appeal. Credibility and well-founded fear of persecution [14] The panel did not find the Appellant's evidence to be credible based on discrepancies and contradictions between his oral and written testimony as well as parts of his oral testimony. [15] The Appellant indicated in his BOC the reason he moved to Colombo was his problem with police in XXXX. The panel noted however the move coincided with his graduation from high school and the start of his post-graduate studies in Colombo. The Appellant also testified he went to Colombo to study. When this was pointed out to the Appellant he responded he went to Colombo because of his fear in XXXX and then decided to continue his studies in Colombo. The panel noted if he left XXXX because of his fear of authorities he would not have waited until September. In addition, the Appellant testified he was not interrogated again by the police between his detainment in March and his travel to Colombo in September. The panel found the Appellant was embellishing his story to support his claim that he moved because of problems with the police. [16] The Appellant notes he was 20 years old when he moved to Colombo and he moved with his family. The Appellant submits it is unrealistic to find that he would be free to leave without his family and that he would have been free to make the decision to move himself given his young age and financial dependence on his family. [17] The RAD has reviewed and assessed all of the evidence concerning this issue. The RAD concurs with the finding of the panel that if the Appellant were in fear of the authorities in XXXX he would not have delayed his move for approximately six months, and that if required a member of his family would have accompanied him. The RAD notes as well the Appellant remained in XXXX to complete his high school studies and only after that did he leave to continue his studies in Colombo. The RAD notes as well that there were no further problems with the authorities in the six months he remained in XXXX before leaving for Colombo. The RAD further concurs with the panel's finding that the Appellant embellished his story in this regard. [18] The panel noted the Appellant testified he was arrested in Colombo on July XXXX, 2014, and detained for two days because he was allegedly hiding after his encounter with police in XXXX. The panel noted the Appellant testified, that he registered with the police on his arrival in Colombo and therefore the police were aware of his arrival. The Appellant responded he did not register personally but his landlord had done it. The panel drew a negative inference as to the contradiction between his BOC in which he indicated he registered with the police and his testimony. [19] The Appellant submits that he testified it was the police who said he was hiding in Colombo and he did not say this, and that he was consistent as to the facts concerning registering in Colombo. [20] The RAD has reviewed and assessed the evidence concerning this issue. The RAD concurs with the panel's finding that there is a contradiction between the Appellant's testimony and his BOC statement concerning registration in Colombo. The RAD finds as well that the Appellant's testimony that the police stated he was hiding in Colombo lacks credibility in that he registered with the police. In addition, the RAD notes he remained in XXXX and no evidence was disclosed concerning any interest in the Appellant by the authorities when he went to Colombo. [21] The panel noted the Appellant testified he was arrested and detained for two days in Colombo and released on July XXXX, 2014. The panel further noted the Appellant's education documents were certified by the Ministry of External Affairs on the same date. The Appellant testified his father went to the Ministry and the documents were submitted the day before. The Appellant further testified his father had decided he had to leave the country. [22] The panel noted the Appellant was aware he was going to study in the United States and it was not reasonable that the documents would have been given to the Ministry while the Appellant was in custody or on the day he was released. The panel noted as well that the Appellant testified it was only after his release that he made an appointment at the U.S. embassy and therefore there was no pressure to obtain documents at a specific date. The panel found the Appellant's testimony in this regard not to be credible. [23] The panel further noted the Appellant was asked if there was any follow-up from the police after his release on July XXXX. The Appellant testified he was told he must report every time he was called. The panel noted the Appellant had to be prompted to obtain this information and found it reasonable that he would have remembered this without prompting. The panel rejected the Appellant's explanation and drew a negative inference in this regard. [24] The Appellant submits his evidence is not implausible regarding the timing of the certification of his school documents in preparation for his application for a U.S.A. visa. The Appellant further submits it was the documents that were certified and not the Appellant and he did not have to be present. [25] The RAD has reviewed the evidence regarding this issue and finds the coincidence of the Appellant's father moving ahead to make arrangements for the Appellant's study in the United States while he was being detained does strain credulity. [26] The Appellant further submits, in regard to the Appellant's failure to indicate he was told that he must report to the police when asked, is not an omission as he was not called by the police and asked to report. The Appellant submits as well this concerns a minor elaboration and not an omission which can reasonably go to credibility. [27] The RAD agrees with the Appellant that the issue is minor and not a basis on which to draw a negative credibility finding. The RAD notes however that the Appellant left Sri Lanka on XXXX XXXX, 2014, and no evidence was disclosed that Sri Lankan authorities had any interest in him after his brief detention in July. [28] The panel noted the Appellant's testimony regarding obtaining a U.S.A. visa was not credible and it contradicted his written evidence. The Appellant stated in his narrative that his father arranged for an agent to obtain the visa. The panel pointed out in the hearing that the Appellant had testified earlier that he started the visa process well before his arrest and that he did not need an agent to obtain the visa. He responded the agent was not involved with obtaining the visa, and that he was not sure whether the agent did something. The panel found the Appellant was making up the explanation in order to explain the inconsistency. [29] The Appellant makes no submission in this regard. [30] The panel concluded, on the basis of the inconsistencies and contradictions, that it did not believe that the Appellant was arrested and detained by the police or that he was wanted by the police in Sri Lanka, and that he embellished his story in order to bolster his claim. [31] The panel noted the Appellant entered the United States with a five year student visa. He explained that he did not make a claim in the United States because the agent told him he had a visa, he had relatives in Canada, and Canada accepts refugees. [32] The panel noted the Appellant had a five year visa but chose to put his life at risk of being deported from Canada if his claim failed. The panel further noted it was reasonable to assume he would have investigated the refugee process in both Canada and the United States and he had the time to do so. The panel noted as well the Appellant crossed the border illegally instead of using the safe third country exception and the Appellant testified in this regard that these were not close relatives but they said they would help him. [33] The panel acknowledged that the Appellant's failure to claim in the United States was not determinative when considering his subjective fear. The panel cited however the decision of the Federal Court in Ortiz2 and found that the Appellant lacks the requisite subjective fear by failing to claim in the United States, and that his actions undermined his credibility. [34] The Appellant submits the panel errs in finding he would not put his life at risk if he lost his claim in the United States but he would do so if he lost his claim in Canada. The Appellant further submits no evidence was disclosed that he had knowledge as to the supposed difference between the United States and Canada systems. The Appellant submits as well that he had relatives in Canada and the panel failed to consider his age and circumstances as always living with his family. The Appellant also submits his failure to make a claim in the United States is not fatal to subjective fear. [35] The RAD has reviewed all of the evidence regarding this issue and concurs with the panel's finding. The RAD notes the panel did not make a finding that the Appellant would not put his life at risk if he lost a claim for protection in the United States. Rather the panel stated the Appellant had adequate time to investigate the refugee process in the United States and his five year visa would have allowed him to advance his education whatever the outcome of a possible further claim. This opportunity was not available to him in Canada. The RAD further notes in regard to the Appellant's age that he had made plans for five years study in the United States in his application for a visa before the alleged arrest, and no evidence was disclosed regarding his need to be with family members, described as not close, in order to proceed with his studies. The RAD also notes in regard to the Appellant's statement that the agent told him to go to Canada, that in the context of the Appellant's inconsistent testimony regarding the use of an agent, it is likely no agent assisted him in exiting Sri Lanka and coming to the United States. [36] The RAD acknowledges that the Appellant's failure to make a claim in the United States is not determinative of the credibility of his claim in Canada. The RAD finds however, in the context of the panel's negative credibility findings noted above that the Appellant's failure to make a claim in the United States further undermines his alleged subjective fear of persecution in Sri Lanka. [37] The RAD is guided in this regard by the decision of the Federal Court in Assadi3 in which the Court held that failure to immediately seek protection can impugn a claimant's credibility including testimony about events in the claimant's country of origin. The RAD is guided as well by the decision of the Federal Court in Ilie4 in which the Court held that the tribunal was entitled to consider an applicant's failure to claim protection in other countries and consider how the applicant's evidence was to be weighed in light of that failure. [38] The Appellant submits the panel's reasons do not support a finding that he is not at risk. The Appellant further submits in this regard that the panel stated there is evidence of increasing targeting, and he relies on this statement as evidence that there is a risk to Tamil returnees. [39] The panel examined the Appellant's profile in the context of the 2012 UNHCR Eligibility Guidelines.5 In this regard the Appellant alleges he fits the profile of persons suspected of links to the LTTE. The panel found the Appellant has not demonstrated this profile with credible and trustworthy evidence, and that there is no risk profile that relates to the Appellant that would sufficiently support a reasonable chance of persecution or a risk that would subject him to danger. The panel further found that although the documentary evidence was mixed in regard to the treatment of persons perceived to be LTTE supporters, there was no persuasive evidence to suggest that Sri Lankan authorities would consider the Appellant as a security threat or a member or a supporter of the LTTE. [40] The RAD has reviewed all of the evidence in the RPD record concerning the risk of ill treatment for returning Tamils. The RAD notes the Appellant testified he was only held for a few hours in the March 2012 incident and for two days in the July 2014 incident. The RAD further notes there was no further action by the authorities although the Appellant remained in XXXX for six months in 2012 and remained in Sri Lanka for more than a month following the 2014 incident. The RAD notes as well that the credibility of these detentions has been challenged by the panel and no evidence was disclosed that Sri Lankan authorities have any further interest in him. The RAD also notes the Appellant experienced no difficulty in obtaining a passport and exiting the country. [41] The RAD concurs with the panel's findings supported by analysis that the Appellant was not arrested and detained by the police and that he would not be perceived as a supporter of the LTTE and therefore attract a persecutorial response from authorities if he were to return to Sri Lanka. The RAD further finds that even if the Appellant's allegations of arrest and detention were true, his treatment was not sufficient to rise to the level of persecution and support a claim for compelling reasons. The RAD is guided in this regard by the decision of the Federal Court in Nagendrarasa6 in which the Court held the Appellant presented insufficient evidence as to his jeopardy if he were to return to Sri Lanka without anything more specific about his particular circumstances. Disposition [42] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel May 12, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2Garzon, Omar Yovani Ortiz v. M.C.I. (F.C., no. IMM-925-10), O'Keefe, March 11, 2011, 2011 FC 299. 3Assadi, Nasser-Eddin v. M.C.I. (F.C.T.D., no. IMM-2683-96), Teitelbaum, March 25, 1997. 4Ilie, Lucian Ioan v. M.C.I. (F.C.T.D., no. IMM-462-94), MacKay, November 22, 1994. 5Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Sri Lanka, 14 March 2014, item 1.13. 6Nagendrarasa, Prasath v. M.C.I. (F.C., no. IMM-5274-13), Roy, June 26, 2014, 2014 FC 618. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-01811