TC0-01281

RAD File / Dossier de la SAR : TC0-01281 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 March 18, 2021 Date de la décision Panel T. Card Tribunal Counsel for the person who is the subject of the appeal Deryck Ramcharitar 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 (the "Appellant") is a citizen of Sri Lanka and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] The Appeal is allowed. BACKGROUND AND ALLEGATIONS [3] The Appellant is a citizen of Sri Lanka and is a Sri Lankan Moor (Tamil speaking Muslim). The Appellant worked for the XXXX XXXX XXXX, a XXXX XXXX. [4] The Appellant made a decision which resulted in the XXXX of Sinhalese XXXX XXXX users. In response, members of the Bodu Bala Sena (BBS) confronted the Appellant in XXXX 2013 and forced him to leave the XXXX. [5] The Appellant returned to the XXXX in XXXX 2016. Shortly after doing so, the Appellant was abducted by the BBS. He eventually escaped. [6] The Appellant went to the United States (US) in XXXX 2016, and then onto Canada arriving in XXXX 2017. [7] Since leaving Sri Lanka, the Appellant's father-in-law has been visited by the BBS, as well as the authorities due to the Appellant's possible connections to the Liberation Tigers of Tamil Eelam (LTTE) and Tamil diaspora. [8] The Appellant made his refugee claim which was rejected by the RPD on the grounds that he was not credible about certain aspects of his claim, and there was a lack of objective basis to establish a well-founded fear of persecution. ADMISSIBILITY OF APPELLANT'S EVIDENCE SUBMITTED ON APPEAL [9] In support of this appeal, the Appellant proposed the admission of the following as new evidence: a. Affidavit by Appellant's US lawyer dated XXXX XXXX 2020.1 b. Undated publication by Immigration Equality about the US refugee claim process.2 c. Article "Sri Lanka: Human Rights Gains in Grave Peril" by Human Rights Watch dated 14 January 2020.3 d. Article "Sri Lanka calls for sharing of UK military intelligence to tackle Tamil diaspora" by the Tamil Guardian dated 16 January 2020.4 e. Article "A Dangerous Sea Change in Sri Lanka - ICG" by the Tamil Guardian dated 1 February 2020.5 f. Article "UNHRC works on tackling hate speech in Sri Lanka" by the Tamil Guardian dated 2 February 2020.6 [10] S.110(4) of the Immigration and Refugee Protection Act (IRPA)7 provides that the Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected8 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of s.110(4) and how that evidence relates to the Appellant.9 [11] In addition, if the new evidence meets one of the explicit legislative factors in s.110(4), then the second step of the analysis is for the Refugee Appeal Division (RAD) to apply the adapted Raza factors endorsed in Singh.10 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance, and newness. US lawyer letter and US refugee process article rejected [12] The Appellant has provided a letter from his US lawyer and about the US refugee claim process in order to disprove RPD findings relating to the Appellant stopping contact with his US lawyer and in not mentioning certain elements in his US claim. [13] As previously stated, the purpose of new evidence is to present evidence not previously available, and not to correct previous strategic mistakes. [14] The letter by the US lawyer refers to content available before the RPD decision date. The date of publication is not what determines if something is new. Rather, it is the content of the letter. In this case, the content of both the letter and article pre-date the RPD decision. [15] I have nothing before me to show that the documents were not reasonably available at the time of rejection. [16] It cannot be said that the Appellant could not reasonably have been expected to present this evidence, given that he knew about this issue raised by the RPD Member at the hearing. No application for an adjournment to get this evidence was obtained, and I note that more than two months between the hearing date and decision date elapsed for the Appellant to obtain this evidence. [17] I find the proposed documents do not meet the requirements of s.110(4) of the IRPA and are rejected. Remaining articles accepted [18] The other articles provided all relate to actions by the Sri Lankan authorities towards Muslims after the date of the RPD Hearing. From this standpoint, they arose after the RPD rejection, and therefore meet the requirements of s.110(4) of the IRPA. [19] The articles are from independent publishers and organisations and appear credible on their face. They are relevant to the issue of country conditions referred to by the RPD. They are new in the sense that they are capable of proving events or circumstances that arose after the RPD Hearing. The articles therefore meet all of the Singh and Raza factors and are accepted. RULE 29 APPLICATION [20] The Appellant also made a Rule 29 application11, which included the following: a. Articles dated 12 April 2020 to 15 July 2020 about Sri Lanka's actions since the start of the COVID-19 pandemic. [21] Rule 29 allows the Appellant to make an application to provide a document not previously provided. Such an application must include an explanation of how the document meets the requirements of s.110(4) of the IRPA and how that evidence relates to the Appellant.12 In determining the application, the RAD must consider any relevant factors, including: the relevance and probative value of the document, any new evidence the document brings to the appeal, and whether the Appellant could have, with reasonable effort, provided the document with the Appellant's Record. Rule 29 documents accepted [22] The articles provided all relate to the situation in Sri Lanka in the wake of the COVID-19 pandemic which began after the date of the perfection of this appeal. [23] The articles are relevant to the issue of country conditions referred to by the RPD, and particularly in relation to the treatment of Muslims and Tamils in Sri Lanka. Given that the content arose after the date of perfection of appeal, the Appellant could not have been expected to have provided these documents ahead of the date of perfection of appeal. [24] For these reasons, I find the documents meet the requirements of Rule 29 and are accepted. NO ORAL HEARING [25] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s.110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.13 [26] I find that in this case, the accepted new evidence relates to the country conditions, and not to the Appellant's credibility. I therefore find that a RAD hearing on this issue is not appropriate, and I choose not to hold a hearing in this case. ISSUES IN APPEAL [27] The Appellant argued the following issues in his appeal: (a) The RPD erred in its assessment of the Appellant's risk profile from his imputed political opinion as an LTTE supporter. (b) The RPD erred by failing to consider the Appellant's residual risk profile as a failed refugee claimant. (c) The Appellant has a risk profile due to his ethnicity and religion after the Easter Bombings of April 2019. (d) The Appellant has a risk profile due to his ethnicity and religion stemming from the Sri Lankan authorities' actions stemming from the COVID-19 pandemic. (e) The RPD erred in some aspects of its assessment of the Appellant's credibility. [28] I find the determinative issues are: a. Credibility b. The Appellant's overall cumulative risk profile. ANALYSIS [29] I have conducted an independent analysis of the evidence concerned, including reviewing the RPD hearing, as well as considering the Appellant's Memorandum,14 the RPD Decision,15 and the Appellant's Basis of Claim (BOC) form16 as amended17 amongst other documents. Credibility [30] I note that the RPD did find the Appellant credible about the incidents involving the BBS in XXXX 2013 and XXXX 2016.18 [31] The RPD's adverse credibility findings were to do with the RPD not accepting the Appellant's explanation about why he did not see his US lawyer more readily, and the lack of detail in the US application. [32] The RPD's point is of some concern, but for reasons that will be explored in more detail below, I find that these actions are relatively inconsequential compared with the change in circumstance that has arisen since the RPD decision. [33] The RPD also found that the Appellant was inconsistent on whether or not his father was threatened with punishment by the Sri Lankan authorities under the Prevention of Terrorism Act. The Appellant in testimony had said that he only thought his father was wanted for interrogation, while the father in his letter19 said he was threatened with punishment under the Prevention of Terrorism Act. [34] I find that the RPD has been overly harsh on this credibility finding. For one, I note that the Appellant was not present when the confrontation between the authorities and his father took place. The Appellant had already left Sri Lanka. The RPD was asking the Appellant to remember what he had been told over the phone, and I find this omission to be too microscopic to merit an adverse credibility finding. I find the RPD erred on this finding and I overturn it. [35] Overall, I find the RPD's adverse credibility findings to be overly microscopic, and in any case, are too weak to overcome the change in circumstances discussed below. Appellant's overall cumulative risk profile makes him a refugee [36] Since the Appellant left Sri Lanka in XXXX 2016, a change of government in November 2019 has taken place. An attack by Islamist suicide bombers during Easter 2019 has also taken place, and I note that since then, "Anti-Muslim mobs, some linked to nationalist politicians and incited by extremist Buddhist monks, attacked Muslim property and vilified Muslims...putting them at risk of assault."20 [37] The new government has also made moves against the Tamil diaspora, asking the United Kingdom (UK) for assistance in "sharing military intelligence, technology and expertise in combating terrorism"21 but effectively targeting the Tamil population in the process. [38] Additionally, the Sri Lankan government has now been seen making additional moves against Muslims under the guise of controlling the COVID-19 pandemic. Al-Jazeera reported the Sri Lankan government "...were quick to blame Muslims, who form nearly 10 percent of the population, for the spread of the virus. Just like in India, Muslim religious practices were singled out as 'super spreader events' and Sri Lankans who belong to the Buddhist majority were warned not to buy food items from Muslim vendors."22 [39] When taking all of these additional risk factors into account, along with the positive credibility findings regarding the incidents with the BBS in XXXX 2013, and XXXX 2016, I find that the RPD's overall finding that the Appellant is not a refugee cannot stand. The RPD's finding is overturned. [40] I substitute my finding that on a balance of probabilities, the Appellant would face a serious possibility of persecution, for his race as a Sri Lankan Moor, if he were to be returned to Sri Lanka. I find on a balance of probabilities that the Appellant is a refugee. No state protection or Internal Flight Alternative (IFA) [41] The circumstances described above stem at least in part by actions from the authorities, and therefore the Appellant cannot approach the state for protection. [42] I also note that the authorities control all of Sri Lanka, and that therefore there is no safe IFA available to the Appellant. CONCLUSION [43] Pursuant to s.111(1)(b) of the IRPA, the determination of the RPD is set aside. I substitute my determination that the Appellant is a refugee by virtue of his race as a Sri Lankan Moor. [44] The appeal is allowed. (signed) T. Card T. Card 18 March 2021 Date 1 Exhibit P-2, Appellant's Record, Pages 32-33. 2 Ibid., Pages 34-49. 3 Ibid., Pages 50-52. 4 Ibid., Pages 53-57. 5 Ibid., Pages 58-62. 6 Ibid., Pages 63-66. 7 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 8 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 9 Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(g)(iii). 10 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, cited in Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96, Paragraph 64. 11 Exhibit P-3, Rule 29 Application received 15 July 2020. 12 Immigration and Refugee Board, Refugee, RAD Rules, SOR/2012-257, Rule 29(3). 13 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, S.110(6). 14 Exhibit P-2, Appellant's Record, Memorandum, Pages 69-85. 15 Exhibit RPD-1, RPD Record, RPD Decision, Pages 3-11. 16 Ibid., Exhibit 2, Pages 12-31. 17 Ibid., Exhibit 7, Pages 37-41. 18 Ibid., RPD Decision, Page 5, Paragraph 12. 19 Ibid., Exhibit 4, Pages 127-132. 20 Exhibit P-2, Appellant's Record, Article "Sri Lanka: Human Rights Gains in Grave Peril" by Human Rights Watch dated 14 January 2020, Page 51. 21 Ibid., Article "Sri Lanka calls for sharing of UK military intelligence to tackle Tamil diaspora" by the Tamil Guardian dated 16 January 2020, Page 55. 22 Exhibit P-3, Rule 29 Application, Article "Like India, Sri Lanka is using coronavirus to stigmatise Muslims" by Al-Jazeera dated 20 May 2020, Page 45. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-01281 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