TB9-20812

RAD File / Dossier de la SAR : TB9-20812 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 Toronto, ON Appel instruit / entendu à Date of decision October 24, 2019 Date de la décision Panel T. Andrews Tribunal Counsel for the person who is the subject of the appeal Micheal Crane 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] XXXX XXXX XXXX XXXX is a citizen of Sri Lanka who appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA)1, the Refugee Appeal Division (RAD) allows the appeal. The RAD sets aside the determination of the RPD and refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND [3] Full details can be found in the Appellant's lengthy narrative, but the Appellant alleges that he is at risk in Sri Lanka for multiple reasons. He fears that his wife's ex-husband could flag him as a Liberation Tigers of Tamil Eelam (LTTE) supporter with information that he has about the Appellant's family's past. He fears that the ex-husband could put his name on the wanted list at the airport or will harm or kill him as he bears a grudge against him. [4] He fears XXXX who is the son of a former prominent politician because they had a dispute over a metal detector that he imported. XXXX helped to clear the item at customs and then took it for personal use. XXXX was arrested shortly thereafter, but blamed the Appellant who was subsequently arrested and charged by police with illegal possession, but was let go due to a lack of evidence. [5] He also fears police and authorities because of the above, and because on a separate occasion police arrested him while he attended a Janatha Vimukthai Peramuna (JVP) political rally and distributed posters against the United People's Freedom Alliance (UPFA) party. They accused him of anti-government activities, and using the metal detector for treasure hunting with an intent to help the LTTE trace hidden gold or weapons. [6] The Appellant's fears are tied to his political opinion as he is a part of the JVP, which he indicates is viewed as anti-government and pro Tamil. He also argued at the hearing that he faced a further risk due to his Catholic faith. [7] The Appellant's application for refugee protection was heard on June 13, 2019. In a decision dated July 19, 2019, the RPD rejected the Appellant's claim finding that his allegations were not credible. ROLE OF THE RAD [8] The standard of review is correctness as established in Huruglica,2 where the Federal Court of Appeal gives guidance in regard to the role of the RAD. The RAD will defer to findings of the RPD where the RPD has a meaningful advantage in assessing the credibility of oral testimony. ANALYSIS Memorandum of Appeal [9] The determinative issue on appeal is credibility. [10] The Appellant argues that the RPD erred in a number of ways including by being microscopic in relation to an omission, by impugning his credibility for things that were not said in his wife's evidence, by applying the test incorrectly in relation to threats by his wife's ex-husband, by drawing a negative inference from his lack of corroborative evidence about the metal detector, by drawing a negative inference from his inability to recall the specific date of arrest, and over several of its implausibility findings. [11] The Appellant is not relying on any new evidence referred to in subsection 110(4) of the IRPA and does not request an oral hearing under ss. 110(6) of the IRPA. [12] While the RAD agrees with the RPD on some of its findings, the RAD finds that errors were made on others. The RAD will not examine each of the Appellant's arguments individually as it finds that one of the errors is determinative of the appeal in relation to the RPDs findings about the JVP as discussed below. Findings regarding the JVP [13] Economic policy: The RAD finds that it was incorrect to impugn the Appellant's credibility based on his testimony about not knowing the JVP's economic policies. The RPD drew a negative inference from the Appellant's explanation for not knowing the economic stance of the JVP. [14] The Appellant argues that the RPD erred by rejecting his explanation that he had not understood the questions of the member on this point. He submits that it was incorrect to find that a JVP supporter would necessarily understand sophisticated phrasings regarding the economic stance of the JVP. Ultimately, he did say that the party was socialist and the RPD failed to give his response due weight. [15] The RAD has reviewed the oral hearing. When asked what the JVP's economic policy was, the Appellant responded that the question was not clear to him. The member then asked "you don't know what JVP's policy on economics is?" to which the Appellant asked the member to explain what he meant by economic policy. The member therefore asked what does JVP think should influence the country's economy and he replied that he does not know about that. The member then asked "isn't the JVP a communist or socialist party" and he responded it is socialist. When asked why he had not said so earlier, he indicated that it was because he had not understood the question. [16] The RAD finds in reviewing the testimony that it was fairly clear that the Appellant was unsure what was being asked. He voiced this several times. The member rephrased the question, and such a question on economic policies may have elicited various types of responses, but the question itself does presume a certain level of sophistication on the part of the Appellant. The RAD notes that according to the Appellant's IMM5669, he has attended only one year of high school. The RAD finds that it was not abundantly clear that the member was asking about the party's leanings until he asked the Appellant directly whether the party was communist or socialist. While on the one hand it seems unusual that the Appellant did not offer any information on the economic stance of his party and said he did not know, the RAD finds that insufficient preliminary/background questions were asked to gain context for what the Appellant should and should not have known, which the RAD will come back to further in this decision. The RAD finds in this circumstance it was incorrect to draw a negative inference from his explanation that he did not understand the nature of the question being posed to him. [17] Membership card: The RAD also finds that the RPD erred in its conclusions about the Appellant in relation to the JVP. In particular, by not articulating its reasons for rejecting the Appellant's explanation about his membership card. [18] An overall finding made by the RPD was that the Appellant was not arrested due to his political beliefs and activism, or for any other reason in November 2014. He based his conclusion on the following: ...that the claimant could not describe what was contained on the items he was handing out other than basic detail, or provide a detailed description of the party and the work he did for it, despite being asked by the panel, could not substantiate his membership in the party with documentary evidence, that his wife was found not to have paid a bribe, and that the claimant testified that the officers had referenced the 2013 incident the panel found did not occur.3 [19] The Appellant argues that the RPD erred by drawing a negative inference from his lack of corroborating documentation; namely that he did not have a membership card from the JVP. He argues that it is not necessary to corroborate every element of the claim and his explanation that the card was lost is reasonable. [20] At the hearing the Appellant testified that in 2011 he became a member of the JVP and he got a membership card, but he lost it when moving houses in Sri Lanka. [21] The RAD finds that the member does not adequately explain why he did not accept the Appellant's explanation, which makes his conclusion on a lack of corroborating documents untenable in this circumstance. His conclusion may very well have been the correct one, however this cannot be assessed without his reasoning. [22] The RAD also finds it was an error to draw a negative inference regarding the Appellant's lack of knowledge of his political party given the limited amount of questions he was asked on the subject. [23] The Appellant argues that the RPD erred in saying that he could not give a detailed description of the party when he was only asked about the JVPs economic policy. And, that a further error was made in finding that he could not give information regarding what he did for the party as this information is included in his Basis of Claim (BOC). [24] The RAD agrees with the Appellant in this instance. After reviewing the hearing in its entirety, the RAD finds that the Appellant was not asked any further questions about the JVP political party aside from when he joined and why. The RAD finds that this error is sufficient to make the decision unsustainable, as one of the major reasons why the Appellant alleges he is at risk in Sri Lanka is based on his membership and activities related to this political party. [25] The Appellant asks the panel to substitute a positive decision. However, the panel finds that this is not possible as credibility issues remain because central elements of the Appellant's claim were insufficiently tested at the first hearing; limited information was adduced regarding the JVP and no information was adduced regarding information contained in the United States (US) asylum application or in the Canadian Port of entry/declaration notes. The RAD is unable to resolve these concerns itself and cannot hold a hearing in this case due to the lack of new evidence presented on appeal. Therefore, the RAD must allow the appeal and return the claim to the RPD for the Appellant's evidence to be heard by a differently-constituted panel. CONCLUSION [26] After conducting its own analysis of the entire record, the RAD finds that the RPDs findings are insufficient to maintain the determination that the Appellant is not a Convention refugee or person in need of protection. The RPD did not deal properly with the issue of his political profile. The RAD finds that it is unable to confirm, or set aside and substitute its own decision. [27] Pursuant to paragraph 111(1)(c), the RAD refers the matter to the RPD for re-determination by a differently constituted panel. (signed) "T. Andrews" T. Andrews October 24, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on December 12, 2017. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at paras 70, 103. 3 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-20812 RAD.25.02 (April 04, 2019) Disponible en français 7 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 (April 04, 2019) Disponible en français