TC1-02024

13 RAD File / Dossier de la SAR : TC1-02024 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision August 13, 2021 Date de la décision Panel Iris Simixhiu Tribunal Counsel for the person who is the subject of the appeal John W Grice Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss the appeal brought by XXXX XXXX XXXX XXXX XXXX XXXX (the Appellant). [2] The Appellant is a citizen of Sri Lanka. He alleges fearing harm from XXXX XXXX XXXX XXXX XXXX, a member of the Lanka Freedom Party (SLFP) as well as a XXXX of XXXX. XXXX is allegedly after the Appellant because he opposes the Appellant's political activities for the People's Liberation Front (PLF), because he is having an affair with the Appellant's wife and because the Appellant disclosed XXXX illicit XXXX business. The Appellant alleges to have received threatening telephone calls and to have been attacked on XXXX XXXX XXXX 2014 by four armed men sent by XXXX. The Appellant left Sri Lanka at the end of XXXX 2014 and returned on XXXX XXXX XXXX 2015. He alleges that the threats continued and as such he departed again on XXXX XXXX XXXX 2015 and went to the United States, where he sought asylum. On XXXX XXXX XXXX 2018, the Appellant crossed the border into Canada and claimed refugee protection. [3] The Refugee Protection Division (RPD) rejected his claim, finding that the Appellant lacked credibility. The RPD noted inconsistencies and omissions in the Appellant's narrative, in particular regarding his political implication, the violent incident alleged, the threatening telephone calls as well as the identity of the agents of persecution. The RPD also found that the Appellant's return to Sri Lanka in XXXX 2015 was conduct that was incompatible with that which would be expected given the fear for his life that he described.1 [4] The Appellant argues that the RPD erred. He argues that the RPD engaged in an overzealous and microscopic analysis of the evidence and that it failed to assess documents of central importance to his claim.2 [5] The Minister of Citizenship and Immigration (the Minister) intervened on appeal and argued that the RPD's decision should be confirmed and that the Appellant lacks credibility because he voluntarily returned to Sri Lanka, he delayed filing for asylum in the United States and he subsequently abandoned this claim. The Minister submits that the "timing of the Appellant's work history, persecutory dates and travels to the US support the RPD's credibility concerns".3 [6] I find that the determinative question in this appeal is credibility. For the following reasons, I confirm the RPD decision. I find that the Appellant has not established the truthfulness of his allegations, on a balance of probabilities. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE [8] The Appellant states that he is not submitting new evidence.4 However, he requests an oral hearing before the Refugee Appeal Division (RAD). As I have not admitted any new evidence, I cannot convene an oral hearing, pursuant to subsection 110(6) of the IRPA. ANALYSIS [9] My role is to look at all the evidence and decide if the RPD made the correct decision.5 [10] For the following reasons, I find that the RPD was correct in determining that the Appellant lacked credibility and that this issue is dispositive of the appeal. Uncontested RPD findings undermine the Appellant's credibility [11] The RPD found that the Appellant was not credible with regards to his allegations that he was attacked on XXXX XXXX XXXX 2014 and that he faces harm from the current President and Prime Minister of Sri Lanka. These findings are unchallenged by the Appellant and they go to the core of his credibility, both in terms of his alleged fear of XXXX and the authorities and in terms of his overall credibility as a witness. [12] First, the RPD held that the Appellant's declarations in his United States' asylum claim regarding the alleged attack of XXXX XXXX XXXX 2014 contradicted both his testimony and his Basis of Claim form (BoC).6 The Appellant declares in his BoC that on XXXX XXXX XXXX 2014, four armed thugs attacked him while he was attending a political meeting and that they beat him until he fell down.7 At the hearing, he testified that XXXX was not present when this attack happened.8 However, in his United States' asylum claim the Appellant declares that XXXX was present during this attack and that he himself assaulted and threatened the Appellant.9 The Appellant testified that the contradiction was due to an interpretation error.10 The RPD did not accept this explanation, as the Appellant indicated in his BoC that he spoke English and he had not tried to rectify the contradiction by way of an amendment. The RPD found that the Appellant was not credible about the XXXX XXXX XXXX 2014 attack and accordingly drew a negative inference on his credibility. This finding was not challenged by the Appellant. [13] Second, the RPD held that the Appellant was not credible that he had been threatened and harmed by persons affiliated with the current government, including the President Gotabaya Rajapaksa and the Prime Minister Mahinda, because he had omitted any such allegations from his BoC.11 The RPD found that this omission was significant because it went to the core of the Appellant's claim: the identity of the alleged agents of persecution. When asked to explain the omission, the Appellant simply insisted that the information was in his BoC.12 Finding this explanation unsatisfactory, the RPD concluded that this allegation was not credible and drew a negative inference regarding the Appellant's credibility as a witness. This finding was also not challenged by the Appellant. [14] Having reviewed the record, I find that the unchallenged findings are correct and are significant, as they go to the core of the claim: the harm that the Appellant faces from XXXX and the authorities following a return to Sri Lanka. I find that the contradiction regarding the XXXX XXXX XXXX 2014 attack is particularly important, as it affects the only violent incident alleged in the Appellant's BoC, the same incident which allegedly forced him to leave Sri Lanka in XXXX 2014. I agree with the RPD that the Appellant has not established on a balance of probabilities that there was an attack as alleged. Given the centrality of the uncontested findings to the Appellant's claim, I additionally find that the unchallenged findings undermine the credibility of the Appellant as a witness. The RPD's decision on these findings is correct. No error regarding the Appellant's return to Sri Lanka [15] The Appellant argues that the RPD erred in finding that his return to Sri Lanka undermined the credibility of his account of events as the RPD's reason for rejecting his explanation rests on speculation.13 The Appellant submits that "without any further questioning of the Appellant or external research on the political dynamic in Sri Lanka, the Panel made an uninformed determination on the plausibility and lack of subjective fear of the Appellant in returning to Sri Lanka in 2015."14 [16] With respect for the Appellant, I am not persuaded by his arguments. I agree with the RPD and the Minister's submissions that the Appellant's return to Sri Lanka is behaviour incompatible with the alleged fear. [17] Like the RPD, I find that the Appellant's explanation for this return is not satisfactory. The Appellant testified that he returned to Sri Lanka because while he was away the government had changed and he thought he would not have any problems in Sri Lanka.15 The Appellant submits on appeal that his risk heightened when XXXX joined the SLFP as XXXX XXXX in 2015. The Appellant's explanation, however, rests on one of the following two premises: either XXXX became XXXX XXXX sometime after the Appellant returned to Sri Lanka in XXXX 2015 and before he departed for the United States in XXXX 2015, or XXXX had become XXXX XXXX before the Appellant returned to Sri Lanka in XXXX 2015 and the Appellant learned this information after his return to the country. The Appellant has not provided any objective evidence that XXXX became XXXX XXXX following his return to Sri Lanka in XXXX 2015. In fact, the Appellant's BoC implies that XXXX had joined the Sirisena government prior to the Appellant's return to Sri Lanka. The Appellant declares as follows: "During the 2015 Presidential election, former President Mahinda Rajapaksa was defeated by Maithripala Sirisena. As the regime had changed, I thought there would be no problems thereafter and I came back to Sri Lanka on XXXX XXXX XXXX 2015. However, XXXX XXXX XXXX was now with President Maithripala Sirisena's group and his harassment and threats continued.16" The Appellant's ignorance of XXXX position within the Sirisena government indicates that prior to his return to Sri Lanka he would not have informed himself regarding this significant development, which would also have been publicly available. Accordingly, I find that he has not provided a satisfactory explanation for his return to Sri Lanka. [18] I also do not agree with the Appellant that the RPD's finding is based on speculation and that the RPD erred by not questioning him further on the topic or not conducting "external research"17 prior to concluding that his explanation was unsatisfactory. The RPD did question the Appellant and offered him the opportunity to explain his return and the Appellant's only explanation was that at that time the government had changed, and he thought he would no longer have any problems.18 The RPD assessed this explanation and found it unsatisfactory. It is not for the RPD to conduct external research on when XXXX joined the Sirisena government, especially as this information is not included in the National Documentation Package (NDP) for Sri Lanka. The Appellant could have provided objective evidence regarding XXXX appointment within the Sirisena government to further support his position, but he has not done so. Knowing that his return to Sri Lanka was an issue for the RPD, the Appellant could have also provided more information on appeal as to when and how he became aware of XXXX position in the new government, but he has not done so. Having independently reviewed the record, I see no error in this conclusion by the RPD. [19] For the reasons set out above, I find that the Appellant's return to Sri Lanka was incompatible with the alleged fear. The Appellant alleges to have been attacked and beaten before he left Sri Lanka in XXXX 2014. In fact, this is the most serious and only violent incident alleged in his BoC. I find that his return to Sri Lanka on the mere assumption that the political situation would have changed, without further inquiring into XXXX position within the new government, amounted to conduct that was incompatible with the alleged fear for his life. This conduct negatively affects the credibility of the Appellant's alleged fear of being harmed by XXXX if he were to return to Sri Lanka. No error regarding threatening telephone calls [20] The Appellant argues that the RPD erred by engaging in an overzealous and microscopic assessment of his evidence when it found that his omission of the threatening telephone call from XXXX undermined his credibility. The Appellant submits that these are collateral details, which need not be included in the BoC and that this information was indeed implied in his BoC.19 [21] With respect for the Appellant's position, I am not persuaded by his argument. I agree with the Appellant and the jurisprudence he cites that the BoC is not meant to be an encyclopedic account of a claimant's story. However, having carefully listened to the RPD hearing, I find that the Appellant did not provide credible evidence regarding the alleged threatening telephone calls. I would characterize this more as an issue of inconsistent evidence rather than a mere omission. When first asked about the telephone calls, the Appellant testified that they occurred in XXXX 2015.20 When asked whom the calls were from, he responded they were from XXXX. The RPD then asked the Appellant several times to confirm whom the calls were from and to clarify if they were from other individuals.21 He repeatedly confirmed they were from XXXX.22 The Appellant then added that XXXX had called him not only in XXXX 2015, but also in XXXX 2015. The RPD was particularly concerned with the XXXX 2015 calls, as according to the Appellant's BoC, it is these calls which pushed him to leave Sri Lanka indefinitely. When asked if XXXX had called him only once or more times in XXXX 2015, the Appellant testified that XXXX had called him only one time.23 The RPD then confronted the Appellant with his BoC declaration that in XXXX 2015 he had received multiple telephone calls. The Appellant testified that he "said that in XXXX (he) got only one call, during that month".24 When asked again why he had written in the BoC that he had received multiple calls, the Appellant responded that XXXX had "called him once and his goons called (him) several times".25 Finally, when asked why he had not stated in his BoC that both XXXX and his goons had called him, the Appellant responded that he did not separate them, since they belonged to the same group.26 I find that the Appellant adjusted his testimony, as he had previously testified and repeatedly confirmed that the calls came from XXXX. He had also confirmed he had only received one telephone call in XXXX 2015. [22] I agree with the Appellant that it is not clear from his BoC whether the threatening telephone calls came from XXXX or from his goons. However, I find that the Appellant's explanation that he did not spell out in his BoC that the calls came from both XXXX and his goons is not satisfactory because it does not explain his inconsistent testimony on the matter. If the Appellant had received numerous calls, both from XXXX and his goons, as the Appellant attempted to explain, then it is reasonable to expect him to have testified to this effect at the hearing prior to being confronted with the contradiction with his BoC. As already mentioned, these telephone calls are central to the Appellant's claim as they represent the incident that would have caused the Appellant to go into hiding and leave Sri Lanka for good. I find that the Appellant's inconsistent testimony regarding whom the calls came from and how many such calls he received in XXXX 2015 undermine the credibility of these allegations as well as his credibility as a witness. The RPD's conclusion on this issue is correct. [23] Lastly, even though I take more issue with the Appellant's inconsistent evidence than his omission, I do not find this to be a new issue. First, according to the jurisprudence of the Federal Court, while the duty of fairness imposes an obligation to raise inconsistencies, it does not extend so far as to require the decision maker to confront the Appellant with each of its credibility concerns, especially where credibility is at the heart of the RPD decision.27 In the present case, the Appellant was made aware that his evidence regarding the threatening telephone calls was problematic. He was also made aware specifically of the issue of the inconsistent evidence as the RPD raised it at the hearing and noted it in paragraph 39 of its reasons. This issue was therefore raised by the RPD even though it ultimately ruled on the omission. Second, I have assessed the Appellant's explanation for the inconsistency. As such, there is no procedural fairness breach to the Appellant in my finding that his inconsistent evidence regarding the threatening telephone calls undermines the credibility of these allegations. No error regarding the Appellant's political involvement with JVP [24] The Appellant argues that the RPD was microscopic in its finding that his testimony contradicted the JVP letter28 regarding his involvement with this party. The Appellant submits that his explanation that he retained his membership with JVP but that he was not active with the party during his work on the XXXX is satisfactory, as it is consistent with the reality of political engagement. The Appellant submits that it is plausible that the JVP maintained his position until he formally removed himself as a member.29 [25] Respectfully, I am not persuaded by the Appellant. The problem in this case is that the JVP letter does not simply say that the Appellant was a member until XXXX 2015, but it also states that the Appellant "worked as the XXXX XXXX until XXXX 2015". The JVP XXXX therefore specifically writes that the Appellant worked during the time which, as per his testimony, he did not perform any activities for JVP.30 When asked how he could act as a XXXX while he was away from Sri Lanka and unable to do any XXXX work, the Appellant responded that although he had left the country, they retained his position.31 When given a second opportunity to clarify the inconsistency, the Appellant testified that JVP retained his position because they expected he would return and join them in the future and because he had told them that he would be returning after six months.32 [26] I find that the Appellant's explanation is not satisfactory. First, it does not explain why the party secretary, the individual who has knowledge of each member's activities within the party, would write that the Appellant "worked" for the party while he did not. Secondly, the Appellant's explanation that he "had told them that (he) will be returning to Sri Lanka after six months" contradicts a core allegation in his claim: that he left Sri Lanka to save his life in XXXX 2014 after an attack by XXXX goons. It also contradicts his earlier explanation that he only returned to Sri Lanka because he imagined that the change in government would mean that he was no longer at risk from XXXX. If the Appellant indeed planned on returning to Sri Lanka in six months when he departed in XXXX 2014, this casts serious doubt into the credibility of his account of the events which pushed him to leave his country. [27] I agree with Appellant and the jurisprudence he cites that the RPD must not focus on insignificant inconsistencies or omissions to draw adverse credibility findings. However, the Appellant's political implication is central to his claim. An inconsistency regarding this issue is therefore significant. Consequently, I agree with the RPD that the Appellant's failure to explain this inconsistency satisfactorily undermines the credibility of his political implication. [28] I also agree with the RPD that the JVP letter bears little weight in establishing the Appellant's allegations. First, as just discussed, the Appellant has not provided a satisfactory explanation for the inconsistency between his testimony and the JVP letter. Secondly, I do not agree with the Appellant that there is other important content in the letter that the RPD discounted.33 The letter does say that the Appellant was subject to political and personal revenge by XXXX and that he was attacked on XXXX XXXX XXXX 2014. However, the RPD found that he had not credibly established this attack. The Appellant did not challenge this finding on appeal, and I agree with the RPD's conclusion that he has not established, on a balance of probabilities, that this incident occurred. I find that these portions of the letter are insufficient to overcome the credibility problems regarding this incident. For these reasons, I find that the RPD was correct to assign little weight to the JVP letter. The RPD did not err in rejecting the Appellant's documents [29] The Appellant also provided photographs34, a newspaper article35 and an affidavit from a friend36 to corroborate his allegations. [30] The RPD correctly found that the photographs bear little weight in establishing the Appellant's allegations. These photographs depict large gatherings of individuals at political rallies. The RPD took issue with the fact that the photographs are not dated and that neither the photographer nor the location of the photographs are identified.37 The Appellant argues that although these elements are not indicated, this does not eliminate the usefulness of these documents. He further submits that the RPD excluded the evidence without sound reason based on an arbitrary assessment of what information should have been provided along with the photographs.38 With respect for the Appellant, I agree with the RPD's finding. Not only are the elements that the RPD mentions missing, but it is also very difficult to discern whether the Appellant is indeed captured in these images. Even if I were to accept that the Appellant is captured in these images, these photographs, at most, establish that the Appellant attended some political rallies at a certain point in time. They are not probative of his allegations that he was active with the JVP during the time alleged or that he suffered persecution as a result. Consequently, the RPD was correct to conclude that they bear little weight in establishing his core allegations. [31] I also find that the newspaper article is deserving of no weight. First, in my independent review of the document I noted that this letter contradicts the information in the Appellant's friend's affidavit. That is, the newspaper article dated XXXX XXXX XXXX 2015 reports that the Appellant is "currently in hiding for life safety as of today".39 However, according to the Appellant's friend's affidavit, the Appellant would have gone into hiding "in XXXX 2015".40 Secondly, like the RPD notes, the newspaper article published on XXXX XXXX XXXX 2015 refers to the Appellant as a "XXXX" of JVP even though according to the Appellant's testimony, he had stopped performing any functions for this party since XXXX 2014. I am not persuaded by the Appellant's argument that since he is not responsible for writing this article the inconsistency regarding his political implication is insignificant. The weight given to the document does depend on the accuracy of its contents. Lastly, the newspaper article states that the Appellant was attacked on XXXX XXXX XXXX 2014, but the Appellant was not credible regarding these allegations, and I find that the newspaper article is insufficient to overcome these problems with his credibility. For these reasons, I assign no weight to the newspaper article. [32] Finally, I assign no weight to the Appellant's friend's affidavit. First, as the RPD noted, the friend's affidavit is not probative of the Appellant's allegations that he suffered persecution from XXXX based on his political activities, as the affidavit is silent on these issues. It merely states that the Appellant had to hide because "he was in trouble". I agree with the Appellant that documentary evidence should be considered for its contents, rather than for what is lacking.41 However, I do not agree with him that the RPD erred by focusing on what the affidavit does not say in this case. The affidavit's silence on critical aspects of the Appellant's claim simply means that the affidavit is not probative of those allegations. Secondly, the affidavit contradicts the newspaper article regarding its most important element: the date when the Appellant went into hiding. For these reasons, I assign no weight to this document. Overall credibility finding [33] For the foregoing reasons, I find that the above-mentioned credibility problems, when assessed cumulatively, lead me to conclude that the Appellant has not established his allegations, on a balance of probabilities. Indeed, the credibility problems discussed above impugn the credibility of allegations that go to the core of the Appellant's claim, such as his threats and attack by XXXX, his political implication with JVP and his fear of returning to his home country. Accordingly, I find that the RPD correctly concluded that the Appellant is neither a Convention refugee nor a person in need of protection. [34] Given this conclusion, I find it unnecessary to examine the Minister's additional arguments in its notice of intervention to the RAD. CONCLUSION [35] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Iris Simixhiu Iris Simixhiu August 13, 2021 Date IS/ag 1 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at pp. 3-11. 2 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 102-119. 3 Exhibit M-1, Minister's Intervention, at p. 6. 4 Exhibit P-2, Appellant's Record, Appellant's Declaration, p. 99. 5 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 6 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at pp. 8-9, paras. 37-38. 7 Exhibit RPD-1, RPD Record, Basis of Claim Form, at p. 20, para. 6. 8 Audio recording of the RPD hearing on January 26, 2021 between 2:35:12 and 2:2:40:14. 9 Exhibit RPD-1, RPD Record, Appellant's Exhibits, Application for Asylum and for Withholding of Removal in the United States of America, at p. 256, questions A and B. 10 Audio recording of the RPD hearing on January 26, 2021 between 2:35:12 and 2:2:40:14. 11 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at p. 8, paras. 35-36. 12 Audio recording of the RPD hearing on January 26, 2021 between 1:15:33 and 1:15:57. 13 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 110-112, paras. 23-27. 14 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 112, para. 27. 15 Audio recording of the RPD hearing on January 26, 2021 between 2:41:50 and 2:45:10. 16 Exhibit RPD-1, RPD Record, Basis of Claim Form, at p. 20, para. 7. 17 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 112, para. 27. 18 Audio recording of the RPD hearing on January 26, 2021 between 2:41:50 and 2:45:10. 19 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 113-114. 20 Audio recording of the RPD hearing on January 26, 2021 between 2:08:45 and 2:10:05. 21 Audio recording of the RPD hearing on January 26, 2021 between 2:10:05 and 2:12:30. 22 Ibid. 23 Audio recording of the RPD hearing on January 26, 2021 between 2:12:30 and 2:16:45. 24 Ibid. 25 Ibid. 26 Ibid. 27 Azenabor v. Canada (Citizenship and Immigration), 2020 FC 1160, at para. 39; Corvil v. Canada (Citizenship and Immigration), 2019 FC 300 at para. 13. 28 Exhibit RPD-1, RPD Record, Appellant's Exhibits, PLF HQ Secretary's Witness Statement, at pp. 240-241. 29 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 107-110. 30 Audio recording of the RPD hearing on January 26, 2021 between 1:19:05 and 1:24:45. 31 Audio recording of the RPD hearing on January 26, 2021 between 2:58:05 and 3:03:44. 32 Ibid. 33 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 108-110. 34 Exhibit RPD-1, RPD Record, Appellant's Exhibits, Photos of Political Activities, at pp. 242-244. 35 Exhibit RPD-1, RPD Record, Appellant's Exhibits, Newspaper Article, at pp. 245-247. 36 Exhibit RPD-1, RPD Record, Appellant's Exhibits, Appellant's Friend's Witness Statement, at pp. 236-239. 37 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at p. 10, para. 43. 38 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 116, para. 37. 39 Exhibit RPD-1, RPD Record, Appellant's Exhibits, Newspaper Article, at pp. 245-247. 40 Exhibit RPD-1, RPD Record, Appellant's Exhibits, Appellant's Friend's Witness Statement, at pp. 236-239. 41 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 116-118. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-02024 RAD.25.02 (May 19, 2021) Disponible en français 2 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.25.02 (May 19, 2021) Disponible en français