TB3-08753

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 : TB3-08753 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 26, 2015 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (Appellant) is a citizen of Sri Lanka. He appealed a decision of the Refugee Appeal Division (RAD) rejecting his claim for refugee protection to the Federal Court of Canada. On XXXX XXXX, 2015, the Federal Court set aside the RAD decision and his appeal was remitted back to the RAD for reconsideration with a different decision-maker. The Appellant has submitted new evidence with the appeal as referred to in s.110(4) of the Immigration and Refugee Protection Act (IRPA)1 and requests an oral hearing be held pursuant to s.110(6) of the IRPA. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act, the RAD confirms the determination of the RPD and dismisses the appeal. [3] The Appellant alleged before the Refugee Protection Division (RPD) that he is a Tamil speaking Muslim born in the eastern province of Sri Lanka. In 2009, he was accused by the Sri Lankan police of transporting Liberation Tigers of Tamil Eelam (LTTE) members to India by boat. He was detained by Sri Lankan authorities for XXXX months from XXXX 2009 until XXXX 2010. Upon his release from detention he lived in hiding in Sri Lanka until he was able to leave the country on XXXX XXXX, 2010. The Appellant travelled through various countries and arrived in Canada in XXXX 2013. He initiated his refugee claim in April 2013. He fears he will be arrested, tortured and killed at the hands of the Sri Lankan Army, police and Karuna group, should he return to Sri Lanka. [4] The Appellant's refugee claim was heard on June 18, 2013 and July 4, 2013. In a decision of October 28, 2013 the RPD rejected the claim, finding that the Appellant is neither a Convention refugee nor a person in need of protection. The RPD found the Appellant was not a credible witness. The Appellant appealed his decision to the RAD and a decision confirming the RPD decision was rendered on October 28, 2014. The Appellant subsequently applied for judicial review of the RAD decision to the Federal Court. A decision rendered on XXXX XXXX XXXX 2015 instructed the RAD to remit the appeal to the RAD for redetermination by a differently constituted panel. [5] The Appellant provided a statement that he was tendering new evidence and would be providing additional new evidence in the form of original documents in a subsequent motion. In his Appellant's record, the Appellant tendered new evidence in the form of an affidavit from the Appellant's brother and a letter from a jail.2 The Appellant also submits a request to admit two hospital reports3 that were the subject of a previous application with his first RAD appeal. The request is also accompanied by an affidavit, which the Appellant states explains the provenance of these documents. [6] The Appellant does not make a request for an oral hearing. [7] The Appellant submits the following issues: * The RPD erred when it failed to consider the Appellant's risk on return to Sri Lanka as a failed refugee claimant. * The RPD's adverse credibility findings arising from the Appellant's failure to claim for refugee protection elsewhere during the two years and two months he was on route to Canada are unreasonable. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [8] As provided for in s. 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to present, at the time of the rejection. [9] The Appellant has tendered two new documents as proposed new evidence in support of his appeal. The RAD notes the Appellant has tendered the new evidence under a Rule 29 Application. The RAD notes this is a de Novo appeal and as such there is no need for a Rule 29 application. Rather the Appellant ought to have made as an application for new evidence under subsection 110(4). Accordingly the RAD will assess the new evidence under subsection 110(4) IRPA. The evidence consists of: a) A letter from the jailer of the Remand Prison in XXXX. b) An affidavit from the Appellant's brother. [10] The Appellant has also tendered two documents, which were the subject of the previous application to admit documents in his first RAD appeal. a) A medical report from the XXXX Hospital dated XXXX XXXX, 2013. b) A medical report from XXXX XXXX Hospital dated XXXX XXXX, 2013. [11] In determining how the statutory provisions of Section 110(4) apply to this proposed new evidence, the RAD considered the following: i. First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim * The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance, which the document seeks to prove. * Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. * If the evidence is admissible then the RAD then it will go on to weigh the evidence and assess its probative value. ii. Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in Section 110(4). * If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, or that it proves a fact that was unknown to him at the time of the hearing? iii. Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim and that it was reasonably available at the time of the rejection, it must consider the final part of the Section 110(4) test: * Could the Appellant reasonably have been expected in the circumstances to present the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered. [12] In the case at hand, the RAD finds that the proposed new evidence does meet the requirements of s. 110(4). However, further analysis is required to assess the probative value of this evidence in this appeal. [13] The RAD in reviewing the affidavit provided by the Appellant's brother notes the Affiant describes the Appellant having Tamil families as friends and the document implies that his father was shot because of his brother's association with Tamils. The RAD having reviewed the audio recording of the hearing as well as the record finds this assertion is not based in fact. The Appellant's BoC document4 states the Appellant's father disappeared in 1990 and his death certificate indicated he died due to a gunshot from unknown persons. The RAD notes the Appellant was seven years of age at the time and that the Affiant's conclusion about the army being the cause of his father's death is speculative. [14] The Affiant further describes that the Appellant was continuously threatened following his release from custody in XXXX 2010. The RAD finds the Appellant's testimony and BoC document indicates he went into hiding and had no contact with the authorities until he departed the country. [15] The Affiant carries on to state, "They filed a false case against me, arresting me on XXXX XXXX, 2013 and kept me under the remand jail...I was released on XXXX XXXX, 2013". The RAD notes the Affiant himself has provided those details, but he provided no information to confirm the reasons for his arrest, nor the terms associated with his release. [16] The Affiant states he was further arrested following a report to the Human Rights Commission on XXXX XXXX, 2014 and released on XXXX XXXX, 2014. The RAD notes the Affiant himself has provided those details, but he provided no further information or supporting documentation confirming the complaint to the Human Rights Commission or reasons for the arrest on XXXX XXXX, 2014. The RAD notes the Affiant has provided a letter from the jailer confirming only the dates of detention. [17] The RAD finds in its review of the affidavit that the document does not provide persuasive evidence to confirm any of the arrests of his brother has any relation to the Appellant's alleged problems in Sri Lanka. The RAD further finds these documents do not provide any evidence to support the Appellant's submission that he will face any problems upon return to Sri Lanka. The RAD in assessing the credibility concerns with this document and the information contained herein, assigns little evidentiary weight to this document as well as the jail letter as new evidence submitted in support of this appeal. [18] The RAD further notes the Appellant has submitted two documents from visits to hospitals in XXXX and XXXX. The RAD finds that these documents do not meet the basic statutory requirements of subsection 110(4) in that the Appellant has not established that he could not have reasonably tendered these documents prior to the rejection of his claim. The RAD notes that the Appellant has submitted that these reports : i. provide support for the Appellant's confused testimony at the RPD hearing; and, ii. that the Appellant was provided with a provisional diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX) and that he has psychological issues. [19] The RAD has considered the Appellant's submissions in respect of his delay in tendering these documents. The RAD has decided to provide the Appellant with the benefit of the doubt and accept his explanation for why they were not reasonably available. The RAD will review these documents in an effort to provide the Appellant with every opportunity to support his appeal. [20] The RAD notes the Appellant has submitted he had difficulty testifying at his RPD hearing. The RAD has reviewed the record as well as the audio recording of the hearing. The RAD further notes that its review of the Appellant's testimony in respect of his travel through multiple countries was very forthcoming and absent of any hesitation. It was only when he testified in respect of the allegations of abuse that he appeared unsure of himself such as his experiences in Sri Lanka, did his testimony become tentative. [21] The RAD notes the Appellant generally provided clear, unbroken testimony until his testimony in reference to the timing of the issuing of his National Identity Card (NIC). The RAD reviewed the Appellant's testimony in this area and finds the Appellant's testimony was not only inconsistent, but on multiple occasions upon realizing his testimony did not coincide with prior statements he changed his testimony completely. The RAD notes that the Appellant testified that he was "confused" and stated he "had emotion" as an explanation for his unreliable testimony only when he was confronted by counsel for the Minister of Citizenship and Immigration (Minister). [22] The RAD further notes the Appellant was able to return to free flowing testimony during the second sitting of his claim, especially when not testifying about experiences in Sri Lanka. [23] While the Appellant submits that the new evidence is an explanation for the Appellant's confused evidence at the RPD, he did not identify in his submissions how his alleged medical issues undermine the findings of the RPD. The RAD further finds there were no submissions made at the RPD hearing that the Appellant suffered from XXXX XXXX XXXX XXXX XXXX XXXX XXXX or insomnia or any other psychological issues. The RAD finds there is no persuasive evidence in the record to support the Appellant's statements that any association with psychological problems was the reason for his inconsistent and unreliable testimony during his RPD hearing. [24] The RAD in reviewing the medical report from the XXXX Hospital notes the information contained in the report is provided by a Registered Nurse and is based on self-reporting by the Appellant. It does not describe the application of any clinical tests or provide a diagnosis. In fact the report states the Appellant was assessed by a physician and "deemed to be medically stable". The RAD finds the report does not raise a new issue and it has limited probative value in that a report of a hospital visit on its own does not establish a reason for his problems testifying. [25] The RAD in reviewing the medical report from XXXX XXXX Hospital again notes the report itself is largely based on self-reporting by the Appellant. The report states, "the final diagnosis is deferred, but the differential diagnosis includes XXXX". The RAD finds this document does not confirm a diagnosis of XXXX, but indicates it is a preliminary report where XXXX is being considered as one of a number of potential diagnoses. The RAD finds the medical documents are preliminary reports, which do not provide sufficient detail on the Appellant's psychological condition and how his condition impacts his cognitive functioning. In fact, the Appellant acknowledges in his initial application that the reports are not "proper" psychological reports. Furthermore, while there is an indication in the second medical report of out-patient follow-up, which was to have occurred in XXXX 2013, no additional documents were tendered to provide a conclusive diagnosis and an explanation of the results of that follow-up. [26] The Appellant has submitted that these reports are relevant in that they provide evidence to explain why the Appellant did not make a refugee claim in transit countries. The Appellant further argues that the reports support his allegation that he had these problems in the United States and that he likely had been burdened by these difficulties given what had transpired in Sri Lanka. The RAD finds these statements are speculative and are not supported by this evidence. The RAD further finds this evidence does not support the Appellant's submission that these reports explain his failure to make a refugee claim in numerous transit countries. [27] The Appellant has submitted an affidavit accompanying his application to submit new evidence. The RAD notes this document explains the applicability of the documents submitted as new evidence and makes a statement about his weekly attendance at a mosque as well as submitting that the conditions for Muslims in Sri Lanka have become worse. The RAD notes the Appellant does not address how his statement about conditions for Muslims has a bearing on his return to Sri Lanka. The RAD finds this document is admissible as new evidence. REQUEST FOR AN ORAL HEARING [28] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [29] When read together, Sections 110(3), (4) and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [30] The Appellant has submitted no new evidence that is capable of changing the outcome of the appeal. As such, the RAD must proceed without a hearing on the basis of the RPD's record, and his application for an oral hearing is denied. ROLE OF THE RAD [31] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,5 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. 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". [32] 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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL Uncontested Credibility Findings [33] The RPD identified a number of credibility findings arising from inconsistencies and contradictions between the Appellant's oral testimony and his written evidence. The RPD found that these inconsistencies are central to the issues in the Appellant's claim. The RPD further found that the Appellant was lacking in credibility. RAD notes that the Appellant does not contest any of these findings. Failure to claim elsewhere [34] The RPD made a negative credibility inference regarding the Appellant's failure to claim refugee protection prior to entering Canada. The Appellant submits that the RPD's findings are unreasonable, however, the Appellant provided very limited submissions to contest the RPD's finding in this regard. The RAD is not persuaded by the Appellant's argument. [35] The RAD notes that failure to seek and applying for refugee protection in a country that is a signatory to the UNHCR is not an automatic bar to claim for protection, however the Federal Court6 has held that it can be an important factor which the Board is entitled to consider in weighing a claim for refugee status. The RAD in its review of the record as well as the audio recording of the hearing notes that the Appellant left Sri Lanka in XXXX 2010 and did not arrive in Canada until XXXX 2013. The Appellant travelled through seven countries en route to Canada, all were signatories to the United Nations Convention on Refugees. The Appellant's sojourn in these countries ranged from one year and three months in Ecuador to one month in Guatemala. The Appellant's final stop over was for two months in the United States (U.S.), prior to travelling to Canada. The RAD notes the Appellant failed to claim for protection in any of the member countries. The Appellant submits that the RPD's adverse credibility findings in this regard are unreasonable. The RAD has considered the fact that the Appellant spent several months, and, in at least one case, over a year in these countries, all of which have ratified both the 1951 United Nations Convention on Refugees and the 1967 Protocol. [36] The RAD in reviewing the Appellant's testimony notes the Appellant was questioned as to whether he made a claim for refugee protection in any of the countries he travelled in to reach Canada. He answered in the negative and confirmed in his testimony that he did not ask. At a later point in his testimony he described being in Ecuador where he was detained for XXXX XXXX and requested refugee protection. He further testified that he was told that the country did not accept refugees. The RAD not only finds the Appellant's testimony in respect to whether he sought refugee protection in any country was inconsistent, but it further finds his failure to make a refugee claim in the transit countries detracts from his subjective fear and the credibility of his allegations of persecution. [37] The RAD notes the Appellant subsequently testified that upon his release from detention that he was given temporary status in Ecuador and he chose to remain there for an additional XXXX months. He subsequently testified that many UN countries give refugee status, but that abductions and harassments are still going on in South American countries. The RAD has reviewed the Appellant's documentary evidence and finds no support for the Appellant's statements. Further to this the RAD has considered the Appellant's testimony and submissions about his fear associated with his recent detention in Sri Lanka. The RAD finds the Appellant's failure to investigate his ability to remain in Ecuador while having been granted temporary status there detracts from his subjective fear and allegations of harm in Sri Lanka. [38] The RAD recalls the Federal Court decision in Mohamed [1997]7, above, wherein Justice Rothstein discussed the issue of asylum shopping [at paragraph 9]: If applicants' counsel were correct in his domicile argument, applicants could, at their own will, reject the protection of one country by unilaterally abandoning that country for another. Indeed, that is what has occurred here. The Geneva Convention exists for persons who require protection and not to assist persons who simply prefer asylum in one country over another. The Convention and the Immigration Act should be interpreted with the correct purpose in mind. [Emphasis added.] [39] The RAD finds the Appellant through his own testimony, is implicitly asylum shopping as he is seeking a more favourable country in which to make his refugee claim. [40] When the Appellant was asked for an explanation for not having claimed protection in these other countries. He stated in his testimony that he was assured by his smuggler that he would not get caught by authorities, and so he did not have any fear of being returned to Sri Lanka. The RAD notes that the Appellant acknowledged in testimony that he was arrested and incarcerated in at least four of these countries including the USA but failed to claim refugee protection in any of the signatory countries he travelled through. [41] The Appellant testified that he fled Sri Lanka to escape persecution and to seek protection. The RAD notes the Appellant's testimony in respect of having no fear of being returned to Sri Lanka and his failure to make a claim for refugee protection makes little sense, in light of his testimony about being arrested and detained by the authorities in multiple countries while on route to Canada. The RAD finds the claimant's actions are simply lacking in credibility and are not consistent with an individual who fears being returned to Sri Lanka. [42] The RAD finds the Appellant failed to provide a reasonable explanation for his failure to seek protection from these other countries. The RAD notes the RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and it may reject evidence if it is not consistent with the probabilities affecting the case as a whole.8 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.9 As such, the RAD finds it is reasonable to expect that genuine Convention refugees would seek protection as soon as is practical. [43] Based on the evidence before the RAD it is evident the absence of a satisfactory response to the RPD inquiries about not making a refugee claim in a safe location further undermines the claimant's credibility and indicates a lack of subjective fear. This action leads the RAD to support the RPD's negative inference to the credibility of the claimant. Failure to consider risk upon return as failed refugee claimant [44] The Appellant submits that the RPD did not address the issue of risk to the Appellant as a failed refugee claimant upon return to Sri Lanka in its reasons. The RAD finds the Appellant's submission has merit. The RAD finds that counsel for the Appellant raised this issue in his submissions to the RPD. While it is true that the RPD did make the definitive finding that the Appellant would not face persecution or a personal risk to his life or a risk of cruel and unusual treatment or punishment or face a danger of torture, should he return to Sri Lanka today, it is not clear from its reasons that the RPD considered counsel's submissions on his risk arising from his status as a failed refugee claimant. [45] Accordingly, the RAD, as set out in Huruglica10 will conduct its own assessment of the evidence and come to an independent conclusion based on the evidence before it. [46] Accordingly, the RAD considered whether the claimant's profile as a failed asylum seeker, should he be returned to Sri Lanka, would attract negative attention from Sri Lankan authorities and whether that attention would be the basis of a well-founded fear of persecution. [47] The documentary evidence shows many examples of persons returning to Sri Lanka who have been out of the country for lengthy periods (some of whom left prior to the ceasefire period, some who left during the ceasefire period and some who left after the ceasefire period). These persons are returning on both a voluntary basis and as failed refugee claimants. [48] The RAD notes much of the documentary evidence is focused on issues surrounding members of the Tamil population. As much as the Appellant is a Muslim, he alleges he is being persecuted because of his association with members of the Tamil population. A Danish Report11 based on the fact-finding mission to Sri Lanka, 19 June to 3 July 2010, looked into the issues for Tamils in Sri Lanka. Noting that the mission was not permitted to go to the North, it was able to speak to many persons from all parts of Sri Lanka. The information in the report notes when a response is opinion and whether incidents were found to support the information. It appears as though the authors of the report endeavoured to reflect the actual conditions for Tamils returning to, or living in, Sri Lanka. Section 1.1.4 of this document quotes the UNHCR's position that a refugee from abroad would not be considered to be at particular risk. Returnees from abroad were distinguished from returning from camps within Sri Lanka. Part VII, particularly VII.I, outlines procedures for persons going through Colombo's Katunayake airport. All travel information is noted. The traveller's documents will be checked against a list of wanted persons, as to forged documents, etc. If he or she is on such a list, he will be handed over to CID agents stationed at the airport. Those on a list of suspected terrorists will be handed over to the Terrorist Investigation Department (TID). Persons not on either list will generally be allowed entry. The process could take a maximum of 8 hours. [49] The United Kingdom Border Agency (UKBA) found similar results and they noted on June 17, 2011, 26 failed asylum seekers, 15 of whom were Tamil, seven of whom were Muslim, and four of whom were Sinhalese. When the returnees arrived at Colombo, the CID questioned them all. After questioning, no arrests or criminal charges were laid; they were released and all returned to their homes.12 In October 2011, the UNHCR assisted 1,493 Sri Lankans to voluntarily return from India, Malaysia, Georgia and St. Lucia. These returnees joined the approximately 7,500 refugees who have returned from India since 2006, including many who returned by themselves with no assistance from the UNHCR.13 [50] The Appellant argues that failed refugee claimants may be subjected to indefinite detention and that they may be more vulnerable if arriving on their own. Documentary sources state that returning Tamils are subjected to the same screening process for all persons returning to Sri Lanka, regardless of whether they are returning on a voluntary basis or as the result of a failed refugee claim.14 Once returnees' rights to enter the country have been established, they are next interviewed at the airport by the CID, followed by an interview by the State Intelligence Service (SIS). The CID conducts criminal background checks of returnees by contacting the police stations in all of the districts in which the returnee lived. Generally, these police record checks may be completed in a few hours, but can last 24 to 48 hours.15 However, in circumstances where it is difficult to obtain security clearance, these detainments may at times last for periods up to some months.16 The Canadian High Commission has noted, as well, that there have only been four cases of persons having been detained upon arrival of which the Canada High Commission is aware of, and these cases involved outstanding criminal charges in-country and were not related to their overseas asylum claims or their ethnicity.17 [51] The Director of the Edmund Rice Centre, an Australian research, advocacy and networking organization that works with asylum seekers and refugees, has stated that Sri Lanka is "not safe for deported asylum seekers"18 especially for those "connected to the Tamil Tigers or who left the country illegally."19 [52] The RAD has considered that the Appellant has alleged that he was accused of being connected to the LTTE by Sri Lankan authorities and that he left the country illegally, the RAD notes that his allegations in this regard were found not credible by the RPD and they were unchallenged by the Appellant. The RAD concurs with these findings. As such, the RAD finds that the Appellant is not connected to the LTTE and nor has he left the country illegally and, as such, is not at risk upon return for these reasons. [53] Furthermore, documentary evidence20 indicates that returnees, who left the country legally and who have genuine documents, generally have little difficulty passing through airport security upon their return to Sri Lanka. [54] Nonetheless, the RAD has considered reports, which suggest that returnees are at a heightened risk of being detained at the airport and at risk of torture should the returnees have connections to the LTTE.21 [55] The RAD has reviewed and considered that the documentary evidence regarding Sri Lanka is somewhat undecided about who is at risk and why, the RAD prefers the UNHCR documents because it is the internationally recognized and supported by the United Nations, a body that is charged with the protection of international human rights. The UNHCR documents are also supported by the Danish22 and UK.23 [56] On July 5, 2010, the United Nations High Commissioner for Refugees (UNHCR) released its Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (UNHCR Guidelines). It concluded that: Given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group- based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country.24 [57] The UNHCR Guidelines recognized, however, that individuals with certain profiles are still at risk and identified five Potential Risk Profiles: a) Persons Suspected of Having Links with the Liberation Tigers of Tamil Eelam (LTTE); b) Journalists and Other Media Professionals; c) Civil Society and Human Rights Activists; d) Women and Children with Certain Profiles; e) Lesbian, Gay, Bisexual and Transgender (LGBT) Individuals. [58] The most recent UNHCR Guidelines,25 published on December 21, 2012, has added two additional groups of concern: a) Certain opposition politicians and political activists; b) Certain witnesses of human rights violations and victims of human rights violations seeking justice. [59] In reviewing the specific "Risk Profiles" from the most recent document,26 the RAD notes the profile listed as: a) A.1 Persons Suspected of Certain Links with the Liberation Tigers of Tamil Eelam (LTTE) 1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; 2) Former LTTE combattants or "cadres"; 3) Former LTTE combatants or "cadres" who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, "computer branch" or media (newspaper and radio); 4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; 5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; 6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles. [60] The Appellant alleges that, at the time he left the country, he had been investigated and detained in relation to allegations of assisting the LTTE. As previously noted, the Appellant was found not to be a credible witness, and his allegations in this regard were found not credible. [61] In reviewing the "risk profiles", the RAD finds that, on a balance of probabilities, the Appellant does not fall within the listed criteria. Therefore, the RAD determines there is not a serious possibility that the Appellant would be persecuted on this basis, should he return to Sri Lanka. [62] The documentary states, with the intervention of the UNHCR, the "Sri Lankan Consulate in Chennai organizes the documents for the returning refugees."27 The document also states that the Canada-based UNHCR representative noted that in Sri Lanka, the UNHCR, as part of the UN Development Program's (UNDP) Equal Access to Justice project, facilitates the process for refugees and internally displaced persons (IDPs) to obtain their documents; individual assistance for the application process is provided by the Organization for Eelam Refugees Rehabilitation. [63] The RAD finds that peace has been restored in Sri Lanka and the civil war has ended. While this does not mean that discriminatory practices are no longer present, a balanced review of the documentary evidence does lead the RAD to conclude that, on a balance of probabilities, persons similarly situated to the claimant are not at risk of persecution. The RAD has therefore considered these various elements of the claimant's "profile" in determining whether there would be a reasonable chance that he would be persecuted on his return to Sri Lanka. [64] The RAD concludes that the claimant's prior profile did not identify him as a person of interest to the authorities in Sri Lanka. There was insufficient credible evidence presented to indicate that the Appellant would be identified due to any personal and unique profile. The RAD therefore determines that, on a balance of probabilities, should he be returned to Sri Lanka, his status as a failed asylum seeker would not in of itself attract negative attention from Sri Lankan authorities. [65] The Appellant further argues that another factor to be considered upon his return to Sri Lanka is the increased discrimination towards Muslims. It is unclear from the Appellant's pleadings whether the Appellant is arguing that this potential discrimination is a factor to be considered when assessing whether the Appellant is at risk upon return to Sri Lanka as a failed refugee claimant or as an issue which supports his allegation that his personal profile places him at risk in Sri Lanka. In any event, the Appellant failed to make arguments to support his submission but rather points to an article28 tendered in support of his appeal. [66] The RAD has reviewed the article and notes it describes incidents of abuse against Muslims at the hands of some radical Buddhists in which several mosques were damaged. While there is no direct evidence that Sri Lankan authorities were complicit, some people believe that government authorities have sanctioned the attacks. However, the article does not provide any persuasive evidence that Sri Lankan authorities have failed to investigate these incidents. Further to this there is no evidence to suggest that Sri Lankan authorities treat Muslim returnees any different than non-Muslims. As such, the RAD finds that this is not an issue, which would impact the Appellant on his return as a failed refugee claimant. [67] The RAD also finds that there is no evidence to suggest that the Appellant's risk of discrimination or abuse, as described in the article, would be greater than a mere possibility. The RAD notes that the Appellant's pleadings are not helpful in this regard. The RAD also notes that the Appellant did not raise any concerns of ill treatment or discrimination arising from his Muslim identity before the RPD nor has he suggested in his pleadings that he experienced any such discrimination or abuse. [68] There is insufficient credible evidence to indicate that the claimant has any ties to the LTTE or any other risk profile. The RAD has considered the evidence regarding failed asylum-seekers, the particular circumstances of this Appellant, and the risk profiles in the UNHCR Guidelines. In light of this information, the RAD finds that the claimant is not a person who is perceived to be linked to the LTTE by the Sri Lankan government, and determines that he does not have good grounds to fear persecution as a failed asylum-seeker were he to return to Sri Lanka. [69] The RAD finds that, in its assessment of the evidence and considering this finding in the context of the numerous credibility findings made by the RPD, the Appellant would not face a risk to his life or a risk of cruel and unusual treatment or punishment or a danger of torture by any authority in Sri Lanka. DISPOSITION [70] Pursuant to Section 111(1)(a) of 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. (signed) "Robert Bebbington" Robert Bebbington August 26, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 2. 2 Exhibit P-2, Appellant's Record, pp. 8-11. 3 Exhibit P-3, Appellant's Record, 1st RAD Appeal pp. 2-7. 4 Exhibit RPD-1, RPD Record, pp. 47-72. 5 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799, paras 54 and 55. 6 Ilie, Lucian Ioan v.M.C.I. (F.C.T.D., no. IMM-462-94), MacKay, November 22, 1994. 7 Mohamed v. Canada (Minister of Citizenship and Immigration) 1997 CanLII 5079 (F.C.), (1997), 127 F.T.R. 241 (F.C.T.D.). 8 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 9 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 10 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. para 54. 11 Exhibit RPD-1, RPD's record, National Documentation Package (NDP) for Sri Lanka, version 3 May 2013, item 2.5, Human Rights and Security Issues Concerning Tamils in Sri Lanka. Report from Danish Immigration Service's Fact-finding Mission to Colombo, Sri Lanka, 19 June to 3 July 2010. Source: Danish Immigration Service. Date of Document: October 2010. 12 Exhibit RPD-1, RPD's record, Exhibit 3, NDP for Sri Lanka, version 3 May 2013, item 14.5, Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport. Code: LKA103815.E. Source: Immigration and Refugee Board of Canada. Date of Document: 22 August 2011. 13 Exhibit RPD-1, RPD's record, Exhibit 3, NDP for Sri Lanka, item 14.6, RIR ZZZ103665.E. 14 Exhibit RPD-1, RPD's record, Exhibit 3, NDP for Sri Lanka, item 14.5, Code: LKA103815.E. 15 Ibid. 16 Ibid. 17 Ibid. 18 Ibid. 19 Ibid. 20 Exhibit RPD-1, RPD's record, Exhibit 3, NDP for Sri Lanka, item 2.5, Human Rights and Security Issues Concerning Tamils in Sri Lanka. Report from Danish Immigration Service's Fact-finding Mission to Colombo, Sri Lanka, 19 June to 3 July 2010. Source: Danish Immigration Service. Date of Document: October 2010. 21 Exhibit RPD-1, RPD's record, Exhibit 3, NDP for Sri Lanka, item 2.2, Sri Lanka - Annual Report 2012: The State of the World's Human Rights, Amnesty International: 2012. 22 Exhibit RPD-1, RPD's record, Exhibit 3, NDP for Sri Lanka, item 2.5. 23 Exhibit RPD-1, RPD's record, Exhibit 3, NDP for Sri Lanka, item 14.6, RIR ZZZ103665.E. 24 Exhibit RPD-1, RPD's record, Exhibit 3, NDP for Sri Lanka, item 1.13, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka. Code: HRC/EG/LKA/12/04. Source: United Nations. High Commissioner for Refugees. Date of Document: 21 December 2012. 25 Ibid 26 Ibid. 27 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Sri Lanka, item 14.6, RIR ZZZ103665.E. 28 Exhibit P-2, Appellant's Record, pp. 10-14, Sri Lanka's Potemkin Peace: Democracy under Fire International Crisis Group November 13, 2013. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB3-08753