TB9-14256

RAD File / Dossier de la SAR : TB9-14256 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 26, 2020 Date de la décision Panel Kim Polowek Tribunal Counsel for the person who is the subject of the appeal Micheal Crane 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] I dismiss this appeal. XXXX XXXX XXXX XXXX (Appellant) is a citizen of Sri Lanka who is appealing a decision of the Refugee Protection Division (RPD) dated May 13, 2019, denying his claim for refugee protection on the basis of credibility. [2] The Appellant alleges that he is at risk of persecution and mistreatment in Sri Lanka from the Terrorism Investigation Division (TID) and other agencies of the government of Sri Lanka, and Buddhist extremists. He alleges that his fears are based on a perceived political opinion that he is a supporter of the Liberation Tigers of Tamil Eelam (LTTE), and supporting the LTTE in the United Arab Emirates (UAE). [3] On appeal, it is submitted that the RPD erred in all of its credibility findings and erred by failing to consider cumulative persecution, compelling reasons and his residual profile as a failed refugee claimant. [4] I find that the determinative issue in this case is credibility. I agree with the RPD that the Appellant's allegations are not credible and he will not be subject to a serious possibility of persecution or probability of harm from the police due to a perceived LTTE connection upon his return to Sri Lanka. DECISION [5] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention1 refugee nor a person in need of protection. ANALYSIS [6] My role is to look at all the evidence and decide if the RPD made the correct decision.2 [7] For reasons which I will outline below, I find that the RPD was correct in its determination that the Appellant was not credible with regard to the central allegations of his claim. 2017 Incident [8] The RPD had credibility concerns about the key incident which led to the Appellant fleeing Sri Lanka which relates to him being allegedly stopped, taken to a police station, and then beaten by TID officers. The RPD's credibility concerns centered around their finding that his testimony regarding his injuries was disjointed, that there were omissions from his Basis of Claim (BOC) form, such as injuries sustained and treatment received by his mother, and his explanation regarding how his brother became aware that he was detained. For these reasons, the RPD determined, on a balance of probabilities, that the incident of XXXX XXXX XXXX 2017 did not occur. [9] On appeal, it is argued that the RPD erred in impugning the Appellant's credibility about his injuries as he was confused about what incident the RPD was referring to and a refugee hearing represents a stressful circumstance. Further, it is submitted that the RPD was being overzealous and microscopic in its credibility concern regarding the Appellant's omission of his mother providing naturopathic care for his injuries. It is also argued that the Appellant was elaborating on details of his injuries and non-formal treatment from his mother and these details do not represent important omissions. Finally, it is submitted that the RPD erred in relation to how the Appellant's brother became aware that he was detained. [10] I have reviewed the Appellant's testimony relating to the XXXX 2017 incident. While I can accept the Appellant's argument that his confusion may have led to his disjointed testimony, I find that the RPD was correct to be concerned about the Appellant's credibility regarding this incident given the omission of what I find to be important details from his BOC form. The Appellant's BOC form states that "they questioned and beat me."3 There is nothing outlined in his BOC form that he sustained any injuries or received treatment from his mother, which I observe is unlike other incidents noted in his Appellant's BOC form, whereby more details are provided.4 The RPD asked the Appellant about what injuries he sustained in the XXXX 2017 incident and he testified that: "I had these bruises. And when they were hitting me, I hit my head against the wall, once. So, I had a pain in my head on this side."5. He then added that he had "bruises on my hands, on my arms and legs."6 Given the Appellant's detail of injuries during other alleged incidents, one would expect that details related to these injuries and in particular, having his head hit against a wall, would be significant enough to be outlined in his BOC form. As noted, injuries were outlined relating to other alleged incidents. Furthermore, I find that the Appellant's omission of having received treatment from his mother represents another detail which, when considered cumulatively with the omission of injuries, is not microscopic in nature. The Appellant had detailed prior occasions where non-formal treatment was received in his BOC form, such as following the XXXX 2017 when he had to do a XXXX XXXX treatment,7 and as such, I find that his omission of having received a similar treatment following the XXXX 2017 represents an omission which casts doubt on whether this event occurred as alleged. [11] Finally, turning to the Appellant's explanation regarding how his brother became aware that he was detained at the police station, I find that the Appellant's explanation that the police must have answered his confiscated cell phone late at night and told his brother that he was at the station to strain credibility. The RPD asked the Appellant if the police told him that they had answered his cell phone, and he testified that they had not but that he realized later that they had gone through his phone and checked it.8 [12] Overall, for the reasons above, I find that the RPD was correct overall to find that, on a balance of probabilities, the XXXX 2017 incident did not occur as alleged. XXXX XXXX XXXX 2017 incident [13] The RPD also had a number of credibility concerns about the alleged incident of XXXX XXXX XXXX 2017 in which the Appellant alleges that he was beaten by Buddhist extremists because they viewed him as a Sinhalese and Buddhist traitor and a LTTE supporter. These concerns relate to the Appellant not seeking immediate medical attention, the omission from the medical documentation of any reference to an assault, broken bones or an unconscious state, lack of police documents to corroborate his police complaint, The RPD also had concerns with the Appellant's assertion that it was Buddhist extremists who harmed him as he testified that they did not identity themselves and it was a neighbour who told him that that one of the perpetrators was the same person who was involved in the 2009 incident against the Appellant. The RPD found that the Appellant was speculating and did not know the identity of the agents of harm. [14] On appeal, it is submitted that the RPD erred by speculating that the Appellant should have sought immediate medical attention because he was knocked unconscious. It is noted that not everyone treats head injuries in the same way and his explanation for not seeking medical attention at the hospital was reasonable as he feared he would have to disclose the circumstances of his injury to hospital staff. Another error committed by the RPD is their impugning his evidence because the medical documents did not refer to the cause of the injuries or treatment for an unconscious state. The RPD also erred as the clinic did not take x-rays and the Appellant may have believed that his bone was broken and is not a doctor. Lastly, it is submitted that the RPD erred by doubting the evidence of the neighbour as it is hardly surprising that two extraordinary events next-door might have made an impact on a neighbour. [15] Regarding the XXXX XXXX XXXX 2017 incident, the Appellant's BOC form states, "After that one of the Buddhist monks beat me and another one hit me with a brick and fractured my right foot. I was knocked unconscious."9 The RPD asked the Appellant what injuries he sustained from the XXXX incident and he testified that he had a broken bone in his right leg and no other injuries. First, as I see it, there is a difference between the seriousness of the incident alleged in the Appellant's BOC form - namely having been beaten, suffering a fractured foot and being knocked unconscious - with the Appellant's medical documentation, which only reports a torn ligament. This medical documentation includes a letter from a doctor indicating that the Appellant received medical treatments for a ligament tear in the bottom of the right foot XXXX XXXX XXXX 2017 to XXXX XXXX XXXX 2017.10 The XXXX Medical council document is dated XXXX XXXX XXXX XXXX2017 and reports a diagnosis of "ligament tear in the bottom of the right foot."11 I do agree with the Appellant that there is no requirement for medical documentation to list the cause of the injuries and I do not find it unreasonable that the Appellant would want to seek treatment at a facility he had some familiarity with. However, I find that I can give little weight to the medical documentation as corroborating evidence given that the circumstances by which the injury was sustained are not described and the differences noted between the injuries alleged by the Appellant (e.g. broken bone) and the medical documentation (torn ligament). Further, as noted by the RPD, there was no police documentation available regarding this incident. [16] I have other credibility concerns around the XXXX 2017 incident, and this arises from the Appellant's supporting documentation. There is a letter by XXXX XXXX XXXX XXXX, who I believe to be the Appellant's mother. This family member states that they witnessed the XXXX 2017 incident as this occurred in the family home. In this letter, the Appellant is described as having been "slapped" by a Buddhist monk; there is no mention of the Appellant being knocked unconscious.12 The letter then states "just then another person hit XXXX with a brick that was on ground and a bone in XXXX right leg fractured."13 There is a letter from the Appellant's wife in which she describes the incident as one in which Buddhist monks "attacked my husband and injured his leg for which he had to seek medical treatment for more than a month."14 The wife's letter makes no mention of her husband having been knocked unconscious. And, I note that the only injury noted in the medical document relates to a torn ligament in the bottom of the Appellant's foot and there is no reference to leg fractures or injuries. [17] Regarding the identity of the agents of harm for the XXXX 2017 incident, I agree with the RPD that there is insufficient credible evidence regarding their identity. The Appellant was asked directly by the RPD, "Did they identify themselves as part of the Buddhist group of extremists?" to which he replied, "They did not say that that but they said that if they were not there, our country would be destroyed by people like me."15 The Appellant was asked by the RPD how he knew that the men who came to his house in XXXX 2017 were part of the Buddhist extremist group and he testified as follows, "One of our neighbours had identified a man in that group as someone who came during the 2009 incident. There were two Buddhist monks in that group, and one of them, we believe is a member of the Ravana Balaya."16 Regarding the neighbour, the Appellant testified that it was his neighbour next door who was the same person who witnessed a similar event whereby people came and shouted outside of their house in 2009. When asked by the RPD, " So, for the 2017 incident, sir, that the neighbour - how did the neighbour tell you at that point that one of them was from 2009 incident? I need to understand how that happened," the Appellant's testimony was as follows, "He didn't tell me when the incident was happening. He told me later, when we were trying to figure out who these people were. It was the members of the Ravana Balaya who troubled me earlier. So, we believed that it would be the Ravana Balaya who troubled me again."17 [18] I also find that the RPD had good reason to doubt the evidence of the Appellant regarding the neighbour, given that there was nothing in evidence before the RPD from this neighbour attesting to him having identified the agents of harm in the manner described by the Appellant. Further, while the Appellant highlighted the role of his neighbour in the XXXX 2017 incident, I observe that there is nothing detailed in the Appellant's BOC form that his neighbour told him that one of the agents of harm from 2009 was involved in the XXXX 2017 incident. [19] Therefore, for the reasons above, I find that the RPD was correct in its determination that, on a balance of probabilities, the XXXX XXXX XXXX 2018 incident did not occur. 2015 Incident [20] The RPD found that the XXXX XXXX XXXX 2015 incident in which he and his two friends were allegedly arrested and detained by the police and questioned about his support for the LTTE. The RPD's concerns related to the Appellant's vague testimony about the incident and found his explanation for why he did not follow up with his friends following the incident to be unsatisfactory. The RPD found the Appellant's responses were lacking in detail and noted a lack of medical documentation to corroborate any injuries sustained. The RPD was found that the Appellant's explanation for why he did not file a complaint against the police was inadequate as country documentation indicated that he could have filed a complain to the Human Rights Commission in Sri Lanka. [21] On appeal, it is submitted that the RPD erred by finding the Appellant to be vague and nonresponsive to questions as they provided no particulars. Regarding the cessation of the relationship with his two friends, it is submitted that he provided a reasonable explanation for doing so. Finally, it is submitted that the RPD erred by impugning the Appellant's credibility regarding his lack of complaint about police misconduct, as the Court has held that there is no obligation to make human rights complaints. The Appellant in his BOC form outlines how he became good friends with XXXX XXXX XXXX XXXX XXXX XXXX who is Sinhalese and Tamil, andXXXX XXXX XXXX, a Muslim and associated with them from 2007 up until he invited both of these long-time friends to his wedding in 2015. In his BOC form, he indicates that XXXXandXXXX XXXX family came to his home before the wedding and helped him with preparations.18 The Appellant, along with these two friends, were arrested and detained by the police. The Appellant alleges that he was told by the police that he was supporting the LTTE by soliciting money from the Tamil Diaspora in Dubai and bringing the money back to Sri Lanka through his two friends. In the Appellant's BOC form, similar incidents occurred in 2008 and 2009 due in part to his friendship with these two people, yet the Appellant continued his friendship with both XXXXandXXXX XXXX. Given the closeness of these friendships and the fact that the Appellant continued to associate with them despite serious alleged incidents in 2008 and 2009 involving these friends, I agree with the RPD that the Appellant's testimony that he never spoke to either friend again following the 2015 incident to be lacking in credibility. Further, his explanation for ceasing contact, which was due to him being married and his wife forbiding all contact, is not credible. Despite the Appellant ceasing all contact with XXXX, the Appellant provided a letter from XXXX mother in support of his claim. The RPD asked the Appellant if he had any contact with XXXX family after the 2015 incident and he stated as follows: "I did not have any connections. But my mother had contacted them to get that letter."19 He testified that his mother remembered directions to her house and retrieved the letter for purposes of his refugee claim. [22] As I see it, a key element in the Appellant's claim, namely his friendship with two persons suspected of being associated with the LTTE, is lacking credible corroboration from these two friends. The Appellant testified that his mother had found out from XXXX mother that he was out of the country.20 Further, there is letter which is reportedly from his mother which also states that her son is not in Sri Lanka.21 When asked by the RPD, "Did you ask her where XXXX XXXX is currently?", the Appellant responded as follows: "Yes. My mother had inquired where XXXX XXXX is now. But they did not like to tell her where exactly he was. They had just told her that he's now out of the country."22 I do not find it credible that XXXX mother would be willing to write a letter in support of the Appellant's claim, some four years after the Appellant ceased all contact with her son, and in circumstances whereby she was unwilling to disclose the location of her son. I note that the mother's letter does not indicate that she was unwilling to disclose the location of her son, it simply states that her son is not in Sri Lanka. [23] The letter from XXXX mother is very vague and there is little detail provided so overall, I find this letter to be unpersuasive evidence in corroborating the elements of the Appellant's claim. [24] I find that I also have concerns regarding the authenticity of this letter given that the Appellant himself testified to having no contact with this friend or his family since 2015, yet his mother was able to recall where the family lived and retrieve not one but two letters from this person some four years later. Further, there is no identity documentation attached to this letter that attests to the identity of the person in this affidavit. For all of these reasons, I assign no weight to this letter from XXXX mother as evidence in corroborating the 2015 events. [25] Turning to the Appellant's argument that the RPD erred when it failed to provide specific examples of where the Appellant was vague or nonresponsive to questions, I do not agree that the RPD is obligated to provide specific examples in every instance. Having reviewed the entire transcript and listened to the hearing, I agree with the RPD that there are many instances where the Appellant's responses were off topic, vague in nature and lacking in spontaneous detail throughout the hearing. [26] Finally, regarding the Appellant's argument that the RPD erred when it impugned the Appellant's credibility about his failure to make a complaint about the alleged police brutality and detention, I see no error in the RPD considering this as one factor in its credibility assessment. The RPD asked the Appellant if he filed a complaint in relation to the 2015 incident and he testified as follows: "Whom can we complain to? It was the police who arrested us, and can we go to the police and tell them that we were arrested by the police."23 I have reviewed the country documentation reviewed by the RPD24 and agree that persons arbitrarily detained and/or abused for reasons related to the LTTE do have access to a number of human rights organizations. [27] For all the reasons outlined above, I find that the RPD was correct overall in its determination that there were sufficient credibility concerns regarding the XXXX XXXX XXXX 2015 to find that, on a balance of probabilities, the incident did not occur. Re-Availments to Sri Lanka [28] The RPD had serious concerns about the Appellant's subjective fear since he returned frequently to Sri Lanka after his fearful incidents allegedly occurred. The RPD found that the Appellant's re-availments to Sri Lanka undermined both subjective fear and credibility. For reasons to follow, I find that the RPD was correct in these findings. [29] The Appellant submits that the RPD erred in finding that his four trips back to Sri Lanka should not count as re-availment, as the fear of persecution in the Apellant's mind only arose after his last return to Sri Lanka. Other than this general assertion, no further argument relating to the Appellant's re-availments to Sri Lanka is made. [30] The Appellant's BOC form indicates that his fears about the Sri Lankan authorities began in 2008 when he was initially detained and questioned about his ties to the LTTE. His BOC form details a further incident in XXXX 2009 when the Appellant was allegedly assaulted, detained and questioned by the police about his LTTE ties. The Appellant left Sri Lanka to work in Dubai and returned to Sri Lanka on four separate occasions before he fled Sri Lanka in XXXX 2017. Specifically the Appellant's re-availments to Sri Lanka are as follows: 2015 (XXXXtoXXXX XXXX), 2016 (one month in XXXX), 2016 (XXXX XXXXto XXXX) and in 2017 (XXXXto XXXX). [31] The Appellant returned to Sri Lanka on two occasions in 2016. I observe that neither of these visits are outlined in his BOC form. When asked by the RPD why the XXXX 2016 visit to Sri Lanka was not in his BOC form, the Appellant explained that he did not know he did not mention it until the question was asked by the RPD.25 Regarding the Appellant's XXXX 2016 re-availment, he testified that it was for a funeral and he was forced to go back to Sri Lanka, as the funeral was for a person who was close to his wife and she wanted to attend.26 The RPD asked the Appellant if he still had fear at that point of being in Sri Lanka and he stated, "Yes," and that he had problems at the time.27 Given this testimony, I disagree with the Appellant's argument that his fear only arose after his last return to Sri Lanka, which would have been in 2017. This is clearly not the evidence of the Appellant. [32] For the third time, the Appellant returned to Sri Lanka on XXXX XXXX XXXX 2017 and stayed until XXXX XXXX XXXX 2017 for reasons related to his father's ill health. Shortly after the Appellant's return to Sri Lanka, as outlined in his BOC form,28 on XXXX XXXX XXXX 2017, Sinhala Buddhist extremists came to the family home, threatened him and his family, and then beat him and hit him with a brick whereby he suffered a fractured right foot. When pressed by the RPD as to why he stayed in Sri Lanka so long, the Appellant's explanation was that he was using crutches at the time. The RPD asked the Appellant, "Why could you not return with crutches to Dubai?" and the Appellant stated as follows: "There was no point going because, in that state, I could not work as a chef. I had to stand the whole day. And I was staying alone in a room. And there was no one to look after me."29 I find that the Appellant's explanation for why he did not depart Sri Lanka earlier to be inadequate to account for why he stayed in Sri Lanka, and at the same residence where he had been harmed for approximately one and half months. This behaviour is inconsistent with someone who has been harmed in the manner alleged and I find it undermines the credibility of his allegations. [33] For the fourth time, the Appellant returned to Sri Lanka in XXXX 2017. When asked by the RPD why he would return to Sri Lanka if he was in fear of his life, the Appellant explained that he did so because he wanted to move to a different hotel in Dubai so he needed to change his visa.30 I agree with the RPD that this explanation is not credible. I find that that the Appellant's return to Sri Lanka in XXXX 2017 is behaviour which is not consistent with someone who is fearful of persecution or for their life. As outlined in the Appellant's BOC form, in XXXX 2017 he had been threatened, beaten and told that "this would be the last warning and if I helped the LTTE supporters again they would kill me."31 [34] I agree with the RPD that the Appellant's multiple return trips to Sri Lanka undermines subjective fear and the overall credibility of his allegations that he fears persecution and harm from the police, the TID and Buddhist extremists in Sri Lanka. Failure to Claim Asylum in the USA Undermines Subjective Fear [35] The Appellant arrived in the USA on XXXX XXXX XXXX 2017 and stayed there for approximately eight and a half months before he came to Canada on XXXX XXXX XXXX 2018 to claim asylum. The RPD found that this delay in claiming asylum in the USA, which the Appellant testified at his hearing was largely due to lack of finances, was found to be inadequate to account for his failure to claim, given that he worked in the USA before coming to Canada. I agree with the RPD that the Appellant's failure to claim at the earliest opportunity, which in this case is the USA, is a factor which undermines the credibility of his claim and his subjective fear. I see no error in this finding. [36] On appeal, it is submitted that the RPD erred as it was microscopic in finding that the real reason for not claiming in the USA was the cost. It is submitted that the Appellant did testify and wrote in his BOC form that he feared the USA government's statements regarding refugees. In the alternative, it is noted that the Appellant had status in the USA and failure to claim is not determinative and cannot affect the assessment of his claim under section 97.32 [37] The Appellant testified that it was his plan to apply for refugee status in the USA. When asked by the RPD why he did not do so, he stated as follows: CLAIMANT: I could not afford it. I met someone and he told me that it would cost me something like $XXXX XXXX XXXX U.S. to get my things organized and for interpreter. And because of the new president, there were other implications and from time to time, officers would come and check places for people.33 [38] The RPD noted that the Appellant's BOC form indicates that he did not want to claim refugee status in the USA given the anti-refugee feelings surging up from the USA government34 and I observe that there is no mention in the Appellant's BOC form that there were financial considerations that were relevant to his decision not to claim in the USA. [39] The Appellant testified at his hearing that he was in possession of an international driver's license while in the USA and worked at odd jobs, which were illegal, such as XXXX at a shop.35 In the Appellant's Schedule A form, however, his employment presents as being more steady in nature given that he indicates that he was working from XXXX 2017 up until XXXX 2018 in "XXXX" at a XXXX XXXX.36 [40] While I agree with the Appellant that he had status in the USA, in that he was there on a visa, there is no evidence before me that he was permitted to work which would have put him at some risk if he had been checked by immigration authorities. Further, there appears to be no adequate explanation for why the Appellant remained in the USA for such an extended period of time, namely eight and a half months, before he came to Canada to claim asylum. If the Appellant was fearful for his safety, one would expect that he would have attempted to take steps much earlier to guarantee his safety on a more permanent basis. Given the length of time the Appellant stayed in the USA without claiming, the fact that his BOC form omitted financial considerations as a reason for not claiming, and the fact that the Appellant engaged in illegal work put him at risk of immigration violation and possible deportation, I find that it was correct for the RPD to consider the Appellant's failure to claim as one factor which undermined subjective fear and the credibility of his allegations. Finally, while I agree that the failure to claim in the USA is not a determinative issue, I find that the RPD was correct to consider this as one factor which undermined subjective fear and the credibility of his allegations. Appellant's Supporting Documentation Insufficient to Overcome Credibility Concerns [41] The RPD considered the Appellant's supporting documentation and assigned them no weight. [42] On appeal, it is submitted that the RPD erred by not giving due weight to letters which were sworn and by reducing weight to the documentary evidence given their credibility concerns. [43] I find that the RPD was correct in its overall assessment that the Appellant's supporting documentation was insufficient to overcome the noted credibility concerns. In assessing the weight to attribute to these documents, the RPD concluded that, as the underlying facts were deemed not to be credible, it could attribute little weight to them. I also do not agree with the Appellant that simply because a letter is sworn it means that the contents are true, are automatically deserving of heightened weight or that sworn documents override well-supported credibility concerns. Further, I find that confirmatory evidence of family members, who were not subject to cross-examination, is not highly probative or credible evidence. Highly probative evidence is intrinsically well-presented evidence from independent sources confirming a material fact in the matter. In this case, there is no corroborating police documentation, the medical documentation is vague and of no assistance in corroborating the circumstances of the injury, a letter from a friend's mother is lacking in detail with no identity documentation and another letter from a classmate is similarly lacking in detail and without identity documentation. Cumulative Persecution and Section 97 Risk Not Established [44] On appeal, it is argued that the RPD erred when it failed to consider whether on cumulative grounds the Appellant merited being protected. It is argued that the RPD did not reject the evidence of the problems in 2008 and 2009 and there is a risk factor on return to Sri Lanka as a failed refugee Claimant. The Appellant also argues that the RPD erred by not finding that the Appellant was not in need of protection pursuant to section 97. [45] First, I find that the RPD clearly considered the Appellant's claim for asylum under both section 96 and section 97(1).37 As noted by the RPD at paragraph 30: [30] Having considered all of the evidence and based on the above analysis, the panel finds the claimant would not face a serious possibility of persecution in Sri Lanka The panel also finds, on a balance of probabilities, that he would not be subjected personally to a risk to his life, a risk of cruel and unusual treatment or punishment, or a danger of torture. Turning to cumulative persecution, I again see no error on the part of the RPD. In addition to there being no submissions made by the Appellant or his Counsel relating to cumulative persecution at the RPD or in submissions to the RPD, the only argument presented to me for consideration is that the RPD did not reject the evidence of problems in 2008 and 2009. Refugee protection is forward-looking and the onus is on the Appellant to establish that he would face a serious possibility of persecution on a cumulative basis if he were to return to Sri Lanka. I find that the RPD correctly assessed the risk to the Appellant and determined that he had failed to discharge his burden of credibly establishing that he faced a serious forward-looking possibility of persecution or probability of harm upon his return to Sri Lanka. As noted, I have supported the RPD in its credibility and lack of subjective fear findings and as such, the Appellant has also failed to establish a claim based on cumulative persecution. These adverse credibility findings also apply to his claim under section 97. Compelling Reasons [46] On appeal, the Appellant argues that the RPD should have considered the compelling reasons exception. However, I find that the RPD did not have an obligation to conduct an assessment of compelling reasons exception. In order to engage in a compelling reasons analysis, the RPD must first find that a Claimant qualified as a Convention refugee or person in need of protection at some point in time, but that the reasons for the claim have ceased to exist due to a change in circumstances. There must be a clear finding that the Claimant has at some point qualified as a refugee.38 These pre-conditions were not met and so there was no obligation on the RPD to conduct a compelling reasons analysis. Sur Place Claim [47] On appeal, it is submitted that the RPD erred by failing to assess the Appellant's residual profile as a failed asylum seeker and there will be risk to the Appellant when he returns to his home country flowing from his suspected ties to the LTTE. [48] The RPD did not specifically engage in a residual claim assessment, but found that in this case that the Appellant was not credible in his claims that he was persecuted due to suspected ties to the LTTE or from Buddhist extremists. [49] I agree with the Appellant that the RPD did not address whether the Appellant had a residual claim. However, I do not view this as a fatal error given my overall finding that the RPD decision is correct and the fact that there were no Counsel submissions on this issue at the RPD hearing. Further, I find that the evidence is sufficient for me to assess sur place considerations. [50] The Appellant alleges a fear of persecution and harm in Sri Lanka at the hands of the Sri Lankan government including the military, police, and the TID, as well as the Sinhala Buddhists Extremists. The primary basis for these fears are based on a perceived political opinion that he is a supporter of the LTTE and supporting the LTTE in the UAE. Given that the key primary forward-looking risk related fear adduced by the Appellant is linked to his perceived association with the LTTE, this will be my focus for his residual claim. [51] In regards to returning to Sri Lanka as a failed asylum Claimant, the National Documentation Package (NDP) notes that "anyone returning from abroad after failing to obtain asylum would be questioned harshly," and that "Sri Lankan authorities may monitor any member of the Tamil diaspora returning to Sri Lanka, depending on their risk profile."39 People formerly involved in demonstrations have been "arrested at the airport or their homes upon their return to Sri Lanka."40 Moreover, involuntary returnees are processed by different agencies, including the State Intelligence Service and the Criminal Investigation Department of the police. The NDP notes that it is "unsafe for Tamils to return to Sri Lanka...including [those] who have had their asylum claims rejected."41 It provides numerous examples of incidents of arrest and detention upon return to Sri Lanka, with the bulk of these examples involving Tamil men.42 Furthermore, the NDP explains that Tamils in the North are routinely monitored and suspected of having ties to the LTTE; that "individuals suspected of sympathizing with the LTTE are the target of 'attacks' and 'harassment'" including "systematic abuse and torture," and "sexual violence"; and that "individuals returning from abroad are particularly subject to screening."43 The NDP also explains that Sri Lanka's Prevention of Terrorism Act is used to abduct and indefinitely detain Tamils throughout the North and East, and to subject them to torture and sexual violence.44 [52] The NDP notes that conditions have been improving in Sri Lanka for returning asylum seekers and other Tamils since the change in government in 2015. However, I acknowledge that these reports were written before the election of the new president in November 2019. The new president, Gotabaya Rajapaksa, was Sri Lanka's powerful secretary of defence prior to 2015. He is the brother of Mahinda Rajapaksa, the president that was in power prior to 2015, and at the conclusion of the civil war between the Sri Lankan army and the LTTE in 2009 in which thousands of Tamils were abducted, tortured and killed. The new president has appointed his brother, Mahinda Rajapaksa, as Prime Minister, and has appointed a cabinet consisting of "many individuals accused of corruption or alleged to have committed war crimes."45 He himself has been accused of war crimes, including "ordering the killing of surrendering LTTE fighters, ordering strikes on civilians and hospitals and authorising attacks on human rights defenders."46 He has given the army increased powers since his election. The army has used these powers to "crack down" on human rights advocates and demonstrators.47 This NDP evidence suggests that any progress that was made by the previous government in regards to the human rights violations of Tamils in particular may be at risk of reversal by the new president and his cabinet. In this case, however, the Appellant is not Tamil. [53] While I have carefully considered the documentary evidence which reflects that some returnees and failed refugees are subject to detention or other abuses, I find that there is not a serious possibility that these risks would occur to the Appellant for these reasons. [54] First, the Appellant is not Tamil, was never a member of the LTTE, he did not participate in any protests or activities related to the LTTE nor is there any evidence adduced that he associated with anyone involved with the diaspora. [55] The profile associated with those who were most likely to be subject to said abuses includes persons with past, perceived or real associations to the LTTE; persons critical of the government; significant political or military involvement against the government; and actively involved in prohibited Tamil Diaspora groups/organizations and functions.48 I find that the Appellant does not fall into those profiles. As noted, I have found that the Appellant is not credible in his allegations that he was perceived by the Sri Lankan authorities to be associated with the LTTE or persecuted or harmed due to his perceived affiliation with the LTTE or diaspora activities. [56] Documents do indicate that persons returning from abroad are particularly subject to screening and such screening may be rigorous. While all returnees are subject to the same standard entry and exit procedures, regardless of ethnicity and religion,49 documents also indicate that persons who left illegally are more likely to be subject to arrest and/or detention. This leads to further examination and inquiries into identity, activities abroad and investigation into LTTE connections.50 In this case, the Appellant travelled in and out of Sri Lanka legally and frequently, without any problem at the airport, despite his assertions that he had questioned and detained regarding his ties to the LTTE and diaspora activities. [57] As noted, the Appellant did not leave Sri Lanka illegally. Documents indicate that illegal departures in particular make persons the focus of even greater scrutiny and increase the likelihood of detention, interrogation and thorough checks,51 as authorities want to know who people are and what past criminal histories they may be hiding. There are examples provided of people who are being arrested and detained at the airport or shortly after their return when a connection to the LTTE is known or suspected52 but there is no evidence before me that this has ever been the experience of the Appellant during any of his travels in and out of Sri Lanka. [58] The UK Home office specifies: The Sri Lankan authorities' approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.53 [59] The Appellant being able to travel freely from Sri Lanka between 2013 up until his departure to the USA in 2017 is evidence that the Appellant was not on a stop or watch list, and further the country documents54 state: The airport maintains a list of persons-of-interest by law enforcement agencies that have violated Sri Lankan law, which is updated regularly. Those on the 'watch list' are persons that are of interest to the authorities for minor offences or are former LTTE cadres; those on the 'stop list' are persons who have committed serious crimes, have a warrant outstanding, or perceived to be connected to terrorism.55 [60] While evidence suggests that Sri Lankan authorities sometimes engage in surveillance of diaspora activities abroad,56 there is no evidence before me that the Appellant has been involved in any pro-LTTE activities or events in Canada or anywhere else. [61] I find that not all failed refugee returnees are targeted and it depends on the profile of the specific individual and if they have engaged in any activities, past or present, that would be perceived as threatening to the state. I have found that the Appellant is not credible in his assertions that he was targeted by the Sri Lankan authorities due to a perceived connection to the LTTE or that he would face forward-looking risk on these grounds. [62] For these reasons, I find that the Appellant has not established that he would face risk due to sur place considerations. CONCLUSION [63] 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) Kim Polowek Kim Polowek August 26, 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 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 3 Exhibit RPD-1, RPD Record, Appellant's Basis of Claim (BOC) form, at para. 19, at p. 24. 4 Exhibit RPD-1, RPD Record, Appellant's BOC form, at para. 7 and para. 18. 5 RPD Transcript (March 27, 2019), at p. 26. 6 Ibid. 7 Supra, at endnote 3. 8 RPD Transcript (March 27, 2019), at p. 34 and p. 35. 9 Exhibit RPD-1, RPD Record, Appellant's BOC form, at para 18. 10 Exhibit RPD-1, RPD Record, at p. 169. 11 Exhibit RPD-1, RPD Record, at p. 167. 12 Exhibit RPD-1, RPD Record, at p. 182. 13 Ibid. 14 Exhibit RPD-1, RPD Record, at p. 176. 15 Exhibit RPD-1, RPD Record, at p. 29. 16 Exhibit RPD-1, RPD Record, at p. 28. 17 Exhibit RPD-1, RPD Record, at p. 29. 18 Exhibit RPD-1, RPD Record, Appellant's BOC form, at para. 9, at p. 23. 19 RPD Transcript (March 27, 2019), at p. 39. 20 RPD Transcript (March 27, 2019), at p. 40. 21 Exhibit RPD-1, RPD Record, at p. 221. 22 RPD Transcript (March 27, 2019), at p. 40. 23 RPD Transcript (March 27, 2019), at p. 42. 24 National Documentation Package (NDP) for Sri Lanka (March 31, 2020), item 1.5: Report of a Home Office Fact-Finding Mission. Sri Lanka: treatment of Tamils and people who have real or perceived association with the former Liberation Tigers of Tamil Ealam (LTTE)., United Kingdom. Home Office., July 2016. 25 RPD Transcript (March 27, 2019), at p. 14. 26 RPD Transcript (March 27, 2019), at p. 42. 27 Ibid. 28 Exhibit RPD-1, RPD Record, Appellant's BOC form, at para. 18, at p. 24. 29 RPD Transcript (March 27, 2019), at p. 45. 30 Ibid. 31 Supra, at endnote 28. 32 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, at section 97. 33 RPD Transcript (March 27, 2019), at p. 45 and p. 46. 34 Exhibit RPD-1, RPD Record, Appellant's BOC form, at para. 20, at p. 24. 35 RPD Transcript (March 27, 2019), at p. 46. 36 Exhibit RPD-1, RPD Record, at p. 33. 37 IRPA, section 96 and section 97(1). 38 Nyiramajyambere v. Canada (Citizenship and Immigration), 2015 FC 678. 39 NDP for Sri Lanka (March 31, 2020), item 14.1: Entry and exit procedures at international airports, including security screening and documents required for citizens to enter and leave the country; treatment of returnees upon arrival at international airports, including failed asylum seekers and people who exited the country illegally; factors affecting the treatment, including ethnicity and religion (2015-November 2017), Immigration and Refugee Board of Canada, LKA106007.E, 10 November 2017. 40 Ibid. 41 Ibid. 42 Ibid. 43 NDP for Sri Lanka (March 31, 2020), item 13.1: Treatment of suspected members or supporters of the Liberation Tigers of Tamil Eelam (LTTE), including information about how many are in detention; whether the government continues to screen Tamils in an attempt to identify LTTE suspects (2011-January 2015), Immigration and Refugee Board of Canada, LKA105041.E, 11 February 2015; NDP for Sri Lanka (March 31, 2020), item 13.2: Surveillance, arrest and detention of Tamil citizens; recourse available to Tamil citizens (August 2011-January 2015), Immigration and Refugee Board of Canada, LKA105042.E, 4 February 2015. 44 NDP for Sri Lanka (March 31, 2020), item 13.9: Treatment of Tamils by society and authorities; the Eelam People's Democratic Party (EPDP), including relationship with the Tamil population (2014-February 2017), Immigration and Refugee Board of Canada, LKA105756.E,17 March 2017. 45 NDP for Sri Lanka (March 31, 2020), item 2.15: Sri Lanka: And the crackdown begins. International Truth and Justice Project; Journalists for Democracy in Sri Lanka, January 2020. 46 NDP for Sri Lanka (March 31, 2020), item 11.2: Journalists and activists targeted as many fear regression of rights following Sri Lankan elections, CIVICUS, 15 December 2019. 47 Ibid. 48 NDP for Sri Lanka (March 31, 2020), item 1.4: Country Policy and Information Note. Sri Lanka: Tamil separatism. Version 5.0., United Kingdom. Home Office., June 2017. 49 Supra, at endnote 24. 50 Supra, at endnote 37. 51 Ibid. 52 NDP for Sri Lanka (March 31, 2020). item 10.2: Tainted Peace: Torture in Sri Lanka since May 2009, Freedom from Torture, August 2015. 53 Supra, at endnote 46. 54 Ibid; NDP for Sri Lanka (March 31, 2020), item 1.9: DFAT Country Information Report: Sri Lanka., Australia. Department of Foreign Affairs and Trade., 23 May 2018. 55 Supra, at endnote 46. 56 NDP for Sri Lanka (March 31, 2020), item 13.7:Sri Lanka: (1) Information on Tamils who have returned (voluntarily or forced) to Sri Lanka since August 2014 and who were subjected to detention and/or torture and/or ill-treatment; (4) Any information on recent arrest/detention/ ill-treatment/ torture of Tamils within Sri Lanka, and on what grounds since August 2014., Asylum Research Consultancy, 11 March 2016. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-14256 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