TB9-11715

RAD File / Dossier de la SAR : TB9-11715 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 Vancouver, BC Appel instruit / entendu à Date of decision August 27, 2020 Date de la décision Panel Douglas Fortney Tribunal Counsel for the person who is the subject of the appeal Elyse Korman Barrister and Solicitor 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 (Appellant), a citizen of Sri Lanka, is appealing a decision of the Refugee Protection Division (RPD) dated March 12, 2019, denying his claim for refugee protection. The RPD Member found the determinative issues in this claim to be credibility and the Appellant's lack of subjective fear. [2] The Appellant alleges that he is at risk of persecution in Sri Lanka from the army due to perceived support for the Liberation Tigers of Tamil Eelam (LTTE). [3] On appeal, it is submitted that the RPD erred in its credibility findings and failed to properly assess the forward-looking risk of persecution should the Appellant return to Sri Lanka. [4] The appeal is allowed. I substitute my own decision that the Appellant is a Convention1 refugee. BACKGROUND [5] The Appellant, a Sinhalese Catholic, was identified as being friendly with neighbouring Tamils during his life in XXXX and in his studies in XXXX, such that authorities became suspicious of his possible involvement in the LTTE. [6] The Appellant attended a protest of fellow XXXX in 2012, and was detained and questioned regarding his motives. The Appellant indicated that he was detained by police for one day in 2014 and told that his friends were LTTE supporters, and to be careful. [7] The Appellant testified that he was arrested and questioned in XXXX 2014 about his activities with Tamils and his father's previous arrest in 2000 for allegedly aiding the LTTE, but he was not mistreated. [8] The Appellant indicated that on XXXX XXXX XXXX 2015, he was arrested and detained for a day and questioned about possible ties to the LTTE. He stated he was beaten with a stick, and that after not admitting any involvement in the LTTE, was told to bribe the officers. [9] The Appellant asked his company for a different position and was transferred to Myanmar. The Appellant came back to Sri Lanka on two occasions, and then fled to the United States (US) on XXXX XXXX XXXX 2018. The Appellant entered Canada irregularly on XXXX XXXX XXXX 2018. [10] At the hearing, the Appellant testified that his mother was visited twice by men looking for him. The first visit occurred about XXXX weeks after he arrived in the US in XXXX 2018, when his mother was visited by three unidentified people who accused the Claimant of being a traitor and being friendly with the LTTE in the US, and that they would "'teach the claimant a lesson' if he were to return."2 [11] The Appellant also testified that after the initially scheduled hearing date of February 4, 2019, on XXXX XXXX XXXX 2019, his mother was visited in XXXX by four Sri Lankan army officers. The officers informed her that they were looking for her son, who they say had "escaped" from prison in 2015.3 NEW EVIDENCE AND ORAL HEARING [12] The Appellant has not submitted new evidence in this appeal. [13] The Appellant has not requested an oral hearing. Under section 110(6) of the Immigration and Refugee Protection Act,4 the Refugee Appeal Division (RAD) can only consider ordering a hearing when new evidence has been accepted and that the new evidence raises a serious issue with respect to credibility. This appeal will therefore proceed without an oral hearing. ANALYSIS [14] My role is to look at all the evidence and decide if the RPD made the correct decision.5 [15] Turning first to the RPD Member's credibility findings, the RPD Member found the Appellant to be credible as to his issues with Sri Lankan authorities, but identified some issues with the Appellant's allegations that his mother was visited by men looking for him in 2018 and 2019. At the hearing, the Appellant testified that his mother was visited twice by men looking for him. [16] The first visit occurred about XXXX weeks after he arrived in the US in XXXX 2018 when his mother was visited by three unidentified people who accused the Claimant of being a traitor and being friendly with the LTTE in the US, and that they would "'teach the claimant a lesson' if he were to return."6 The Appellant testified these men could be the police or a Sinhalese extremist group. [17] The RPD Member found this first incident to be credible, given communal tensions in Sri Lanka and the Appellant's earlier testimony that he was seen as Tamil friendly. However, the RPD Member also found that it to be more likely than not that these men were not the agents of persecution (i.e. Sri Lankan authorities), as they would likely have identified themselves. [18] However, the mere fact that these men did not identify themselves as being Sri Lankan authorities or the police is not adequate to have arrived at this conclusion. This first visit occurred about XXXX weeks after he had left Sri Lanka. When leaving the country, the Appellant testified immigration authorities had questioned him as to the purpose of his residence in Myanmar and why he was going to the US. Considering these circumstances, I find to be credible the Appellant's allegation that these men could have been from the police or other Sri Lankan authorities. [19] The Appellant testified that after the initially scheduled hearing date of February 4, 2019 that his mother was visited on XXXX XXXX XXXX 2019 in XXXX by four Sri Lankan army officers. The officers informed her that they were looking for her son, who they say had "escaped" from prison in 2015.7 [20] The RPD Member found this allegation "incredibly unlikely"8 as country documents indicates the government of Sri Lanka keeps an extensive database to track those leaving and coming back and those suspected of involvement with terrorist organizations such as the LTTE. The RPD Member found that the XXXX XXXX XXXX 2019 visit did not take place and was manufactured to attempt to show a more credible case for a forward-looking fear of persecution. [21] I agree with the RPD Member that country documents do indicate that Sri Lankan authorities use databases to track those leaving and coming back and those suspected of involvement with the LTTE. However, I find, on a balance of probabilities, that the interest of Sri Lankan authorities in him may have been reopened following his examination at the airport when leaving Sri Lankan in 2018. [22] In turn, this could have resulted in the alleged visits to his mother's home of men looking for him. The Appellant testified that when detained in 2015, he had been released upon payment of a bribe to army officers. It is conceivable that army records may not have shown he had been officially released which may be why the army officers claimed he had escaped custody in 2015. [23] Considering these circumstances and that the RPD Member found the Appellant to be generally credible, I find the RPD Member erred in finding that the XXXX XXXX XXXX 2019 visit did not take place and was manufactured to demonstrate a forward-looking risk of persecution. I find, on a balance of probabilities, that this visit by army officers did take place as alleged by the Appellant. On a balance of probabilities, I also find credible the Appellant's allegations that he faces a risk of detention and mistreatment by government authorities should he return to Sri Lanka on the suspicion that he may be a past supporter of the LTTE. This establishes a Convention ground for his claim on the basis of his perceived political opinion. [24] While there are few refences to Sinhalese citizens being suspected of being LTTE supporters, country documents in the Immigration and Refugee Board's National Documentation Package for Sri Lanka (March 29, 2019) indicate that the police have cracked down on a group that they suspected to be "Sinhala Tigers," supporters of the LTTE among the country's majority Sinhalese population.9 The referenced document indicated that such individuals have been the subject to detention and torture at the hands of government authorities. [25] The RPD Member also found that the Appellant's second re-availment to Sri Lanka in 2018 undermined the credibility of his subjective fear in Sri Lanka. I have already found, on a balance of probabilities, that the interest of Sri Lankan authorities in him may have been reopened following his examination at the airport when leaving Sri Lanka in 2018 for the US. This may help explain why his previous re-availments to Sri Lanka in 2016 and 2018 did not attract undue attention from the authorities, but that any return to the country would pose a serious possibility of mistreatment by authorities. [26] In summary, I find there is more than a serious possibility that the Appellant would be subject to mistreatment and extortion by police and/or other security forces in Sri Lanka on the basis of his perceived political opinion. I also find that, as the police and/or security forces of the government of Sri Lanka are the agents of persecution, there is no Internal Flight Alternative for the Appellant in Sri Lanka. CONCLUSION [27] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) Douglas Fortney Douglas Fortney August 27, 2020 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 31. 3 Ibid, at para. 34. 4 Immigration and Refugee Protection Act, S.C. 2001, c. 27, section 110(6). 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 6 Supra, at endnote 2. 7 Supra, at endnote 3. 8 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 35. 9 National Documentation Package for Sri Lanka (March 29, 2019), item 9.5: Locked Up without Evidence: Abuses under Sri Lanka's Prevention of Terrorism Act, Human Rights Watch, 29 January 2018, at p. 39. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-11715 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français