TB9-35068

RAD File / Dossier de la SAR : TB9-35068 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX(a.k.a.) XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision December 7, 2020 Date de la décision Panel Ron Liberman Tribunal Counsel for the person who is the subject of the appeal N/A 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, a citizen of Sri Lanka, appeals a decision of the Refugee Protection Division (RPD) dated November 26, 2019, rejecting his claim for refugee protection on the grounds of credibility. I have conducted an independent analysis of all the evidence concerned, including the entire Appellant's Record and the oral testimony. I find that while the RPD erred in making implausibility findings and that it failed to comment on much of the documentary evidence, nevertheless the Appellant is not a Convention1 refugee under section 96 of the Immigration and Refugee Protection Act (IRPA)2 and the Appellant has not provided sufficient evidence of a forward-facing risk to him under section 97(1) of IRPA.3 BACKGROUND [2] The Appellant alleges as follows. He fears persecution in Sri Lanka as he has refused to pay bribes to a Government Minister. The Appellant was a member of the national XXXX team. In August 2012, he began volunteering to coach Tamil children in Jaffna and Trincomalee, as these underprivileged children did not generally have access to sports. In June 2015, one of the locals in Jaffna asked the Appellant about rentals in Colombo. The Appellant offered to rent him a spare room. He stayed for approximately one and a half months. Five weeks later, the police came to the Appellant's home to question him about his tenant. The Appellant was detained for one day, until his father was able to secure his release. The Appellant was dropped from the national team in October 2015. When he appealed the decision, he was told it was the Sports' Minister's decision. Additionally, in October 2015, he received a threatening letter from the Bodhu Bala Sena group (BBS) demanding that he stop coaching Tamil children. His father met with the Minister in December 2015 and was told the next day that, if they paid then lakhs, then the PA could rejoin the team. His father was unable to raise the money. His father arranged a meeting with another Minister on July 17, 2016. When they returned home two days later, the Appellant and his father were beaten and told to stop trying to get the Appellant back on the baseball team. On July 22, the PA and his father were arrested. They were released later that day. The Appellant left Sri Lanka for the United States on XXXX XXXX XXXX 2016. He entered Canada on XXXX XXXX, 2018. RPD findings [3] The RPD found that the Appellant was not credible and that his testimony was evasive, incomplete, and/or unclear and that omissions from his narrative undermine the Appellant's credibility. The RPD found the supporting evidence is not sufficiently persuasive and is insufficient to establish the Appellant's claims. Appellant's arguments [4] The Appellant argues the RPD ignored or misapprehended evidence, and that the RPD erred in its credibility assessment. The Appellant further argues the RPD breached the rules of natural justice or procedural fairness. NEW EVIDENCE [5] The Appellant supplied new evidence, in the form of a letter from his father. [6] To decide whether to admit this new evidence, I must consider the requirements of section 110(4) of the IRPA4 to determine whether this is evidence that arose after the rejection of the claim, or was not reasonably available when the claim was rejected, or is evidence which the Appellant could not reasonably have been expected to present at the time of the rejection. If I find that the evidence meets the test in section 110(4), I must also, in order to admit it, determine that the evidence meets the modified factors of credibility, relevancy and newness as specified in Raza5 and Singh.6 The Appellant is required to explain how the new evidence that has been provided meets the requirements of section 110(4), as is clarified in Tiodumno.7 [7] This letter describes some events that occurred prior to the Appellant's departure from Sri Lanka. It also states that, after the RPD refused the Appellant's claim, the father approached Minister XXXX XXXX for help, but was advised that this person was unable to protect his son. [8] The Appellant has not explained why the parts of this letter that relate to events prior to the departure of the Appellant from Sri Lanka could not have been supplied as evidence to the RPD. As per evidence provided by the Appellant, his father was present at incidents which are central to his claim, and it would have been wholly reasonable to have presented this evidence to the RPD prior to the decision being rendered. I find these parts of the letter do not meet the requirements of section 110(4). In regards to the father's contact with XXXX XXXX, this is also evidence which clearly arose before the RPD rendered its decision, and it does not meet the requirements of section 110(4) for the same reason. Additionally, this evidence was already before the RPD.8 [9] I do not admit this letter as new evidence. ROLE OF THE RAD [10] In accordance with the decision in Huruglica,9 when reviewing the decision of the RPD, I have applied a standard for my review of correctness while conducting an independent assessment of the entirety of the evidence before me. ANALYSIS The latest National Documentation Package (NDP) applies [11] I notified Counsel of my intention to rely on the latest NDP for Sri Lanka, dated September 1, 2020, when making my decision, and invited the Appellant to make submissions. Counsel responded within the deadline that had been established, to the effect that the Appellant instructed him to proceed without making further submissions. I therefore proceed with the decision on this basis and apply the latest NDP in respect of country conditions in Sri Lanka. Appellant's testimony [12] The RPD found that the Appellant had graduated from high school, had work experience, and he was "not unsophisticated."10 The RPD found the Appellant's testimony was evasive and unclear and that the Appellant failed to completely answer some questions that were posed. The RPD did not accept that the Appellant's memory was impaired during his testimony. [13] Counsel submits that the RPD's reasons for finding the Appellant to be sophisticated - namely that he was a high school graduate, had volunteered to coach a baseball team, and had been working as a XXXX XXXX - do not establish that he was sophisticated. [14] I disagree with this argument, because it appears to me that the RPD's reasoning in this regard relates to a finding that the Appellant had some level of sophistication, such that the RPD had a reasonable expectation the Appellant would be able to answer questions put to him. Successful completion of high school, and the ability to work, even in a volunteer capacity, coaching a baseball team and to be able to maintain employment as a XXXX XXXX are, in my opinion, ordinarily adequate to establish that a person would be able to apprehend what questions were asked of him and to be able to answer them. Medical report [15] Counsel suggests however that the RPD failed to correctly assess the medical report on file,11 which report states that the Appellant was suffering from symptoms such as post-traumatic stress disorder, psychological problems, and symptoms of concussion including memory loss."12 Counsel also points out that the RPD's attention was drawn to a summary of the Appellant's prescription. [16] I note the medical report (doctor's letter) is dated November 4, 2019 and the Appellant's prescriptions are dated from May 21, 2019 until November 4, 2019 and that the Appellant's hearing was held on November 26, 2019. There is no evidence that the Appellant was still taking the prescription medication at the time of the hearing, since the prescription records indicate tablets were prescribed to be taken for eight days. [17] The RPD did not accept that the medical report, or his undergoing counselling, explained the vague and incomplete manner in which the Appellant testified, noting that the Appellant did not express difficulty in testifying at the hearing, and when asked for an explanation for the manner of his testimony, did not ascribe it to his medical condition. Counsel notes that the RPD did not question the Appellant directly on the medical report, however Counsel also had an opportunity to do so. [18] I accept the qualifications of the Appellant's doctor to assess his medical condition. I therefore find the Appellant's recall may have been affected to some extent by his medical condition, including post-traumatic stress disorder. However, there is insufficient evidence before me to conclude, on a balance of probabilities, that the concussion the Appellant sustained was still affecting him at the time of the hearing, or that he was still taking prescription medication at that time, such that his ability to understand the questions posed by the RPD and to answer them completely was significantly impaired. In listening to the Appellant's testimony, it appears to me that he was able to understand the RPD's questions, was coherent and that he was capable of answering questions. [19] Therefore, I concur with the RPD's findings that the Appellant's answers were vague and evasive. Corroborating evidence [20] I also need to address the corroborating evidence in the RPD Record, some of which was not addressed by the RPD, which is an error on the part of the panel. [21] The RPD found a newspaper article13 from "economynext" does not support the position that the Sri Lankan Minister of Sport had him removed from team, or that he tried to extort his father for money in order to have him reinstated. [22] In this newspaper article, the Minister admits to receiving large previously undisclosed amounts of cash. The allegations in the article appear from a close reading to arise because the Minister received cash donations in the context of an election. Although the Minister admits accepting donations, in the article he denies ever giving out any favours in exchange for these donations. I agree with the RPD that this article, which contains unproven allegations relating to the character of the Minister of Sport, is unrelated to the specific claims of the Appellant, because it does not establish that the Minister of Sport was accepting bribes in return for specific actions. I give this article no weight in regards to the allegations of the Appellant. [23] There is a further article, together with an article accompanied by a sworn affidavit of translation into English,14 which refers to the Appellant and which alleges he was removed because of the Minister's "personal matter" and "for vengeance."15 It is not clear what the source of this articles is. This article also states that previously, resulting from a "personal dispute", an outstanding cricketer was removed from the national team which is "a well-known secret."16 The article does not explain who it was that removed the cricketer or give details which would indicate that the "dispute" was related to non-payment of a bribe. I accept that journalists have their sources, which they are entitled to protect, but this article does not amount to proof of the allegations made in it. In the circumstances, I give this article very limited weight. [24] Additionally, as pointed out by Counsel, the documentary evidence in the Record contains a newspaper article17 to which the RPD does not refer to in its decision, and which confirms the main allegations of the Appellant. This document, dated September 4, 2016, was identified by the Appellant's Counsel at the RPD as based upon a report which the Appellant's father made to the media before leaving the country. I find the RPD erred by failing to deal with this document. There is a sworn translation of this article into English. It indicates that a local politician, XXXX XXXX, has provided information that the UDP Minister of Sport Dayasiri Jayasekara demanded ten lakhs in cash, sent his secretary to meet the father of the player of the national basketball team, and that, although the Minister agreed after being informed that it was hard to pay such a large summer of money to reinstate the player, that thugs who are suspected as associated with Minister Dayasiri beat the player up. The article states that XXXX learned this information from the father, days before he left the country. [25] The RPD may accept hearsay evidence, but in my view the weight of the evidence is reduced because it is not based on first-hand knowledge of events. I do give some small weight to this evidence as establishing the possibility that the Minister may have asked for a bribe, as stated by the father, and the possibility that the thugs who attacked the Appellant were associated with the Minister. I accept also that it will normally be very difficult to prove that a bribe was requested. [26] There is clear evidence in the Record that the Appellant was attacked in the form of photographs of injuries,18 an affidavit from a passer-by,19 and a police report.20 The Appellant's family doctor in Canada confirms he has scars.21 I give this evidence significant weight as confirming that the Appellant was attacked by unknown thugs. [27] There is also documentary evidence in the Record in the form of an affidavit22 that, on the following day, the Appellant and his father were arrested by the police. Although I have not had an opportunity to question the affiant, I give some weight to this evidence. [28] The father's affidavit in the Record23 confirms all the allegations of the Appellant. Although I have not had the opportunity to examine the affiant, I give this affidavit some weight. [29] There is also information in the NDP for Sri Lanka which states that in a newspaper interview "the Sri Lanka Freedom Party (SLFP) General Secretary and Member of Parliament Dayasiri Jayasekara admitted he took the arrested rioters in his personal car from one police station to another police station, where they were later released on bail."24 Counsel's Memorandum refers to a newspaper report in this regard, and Counsel submits that this is inappropriate behaviour on the part of the Minister. I agree. Implausibility findings of the RPD are in error [30] The RPD argues that removing the Appellant from the team would be contrary to the Minister's interest. [31] This determination of the RPD is an implausibility finding to the effect that the Minister would be unlikely to do anything to remove a good player from the team. The Federal Court has held that implausibility findings should only be made in the clearest of cases. I find this implausibility finding is not made in the clearest of cases, because it is not entirely outside the realm of possibility, given this documentary evidence, that the Minister would seek to remove the Appellant from the baseball team in order to replace him with another player who was able to pay a bribe. I therefore do not hold this specific implausibility finding against the credibility of the Appellant. [32] The RPD also found it implausible that the Minister would seek to extort a large sum of money from the Appellant because his family had limited means. Counsel submits that the Appellant could not know why the Minister would ask him to pay monies which he could not afford, and I note the Appellant did state in the testimony that he did not know. I again find this is an implausibility finding which is not made in the clearest of cases. Since it is not beyond the realm of reasonable possibility that the Minister might have believed the Appellant could perhaps raise the money and was giving him a chance to do so, I do not hold this issue against the credibility of the Appellant. Omissions from narrative [33] The RPD also found that the omission from the narrative associated with the Appellant's Basis of Claim (BOC) form of his father's threat to go to the media, combined with fact that his father's affidavit is the only documentary evidence of this threat, undermine the Appellant's credibility. I agree with the RPD that the omission of this matter from the Appellant's BOC form narrative is a concern. Nevertheless, it does appear to me that there is further documentary evidence in the Record, in the form of the father's affidavit that the father did subsequently go to the media. Allegations of bias and Procedural Fairness issues [34] Counsel's Memorandum alleges that the RPD's decision exhibits bias. Although I have found that the RPD failed to deal with much of the documentary evidence and I disagree with its implausibility findings, I find there is no evidence in the Record, including in the transcript of the hearing, to support such a serious accusation. Counsel also alleges that the format in which the RPD's decision was provided is procedurally unfair, because it is not provided in numbered paragraphs. I find that, while it makes the task of Counsel more difficult, the way in which the RPD has provided the decision is far from rising to the level of procedural unfairness, because Counsel has been able to respond by quoting page numbers and paragraph (line) numbers within that page. Forward-facing risks [35] The RPD found that the Appellant's allegations of his detention in summer of 2015, receiving a threatening letter in October of that year, and the events that allegedly occurred in 2016 did not support his claim on a forward-looking basis. The RPD found the detention in 2015 appeared to be related to a former Tamil tenant and was no longer of interest to the authorities, that the threatening letter is not mentioned in the Appellant's BOC form narrative and the Appellant is speculating when he claims it was not written by the BBS but by the Minister, and that his detentions by the police in 2016 do not appear to be related to attempts by the Minister to remove the Appellant from the team. [36] Counsel has not opposed the findings of the RPD as they relate to the former tenant of the Appellant, addressed the omission from the BOC form, or the RPD's finding that there is no evidence that the threatening letter was written by the Minister. While Counsel submits that it is inappropriate to apply North American standards when evaluating matters, and I am cognizant of that, I must proceed based on the evidence before me, and I agree with these points made by the RPD, and after a careful scrutiny of the evidence, I adopt its reasoning in that regard. [37] Although I have found the testimony of the Appellant was vague and unclear, I find the documentary evidence in the form of newspaper articles, affidavits, evidence of the Appellant's injuries, and his Canadian doctor's medical report, are sufficient to establish, on a balance of probabilities, that the Appellant was removed from his place in a national team and that his father was asked for money before he would be reinstated. However, there is minimal evidence that the attack on the Appellant, after the Minister of Sport agreed to reinstate him without money changing hands, was made on the orders of the Minister. On a balance of probabilities, I agree with the RPD that this attack was not initiated by the Minister. [38] I agree with the RPD that this case falls under section 97(1) of the IRPA - this is because of my finding that the Appellant is not suspected of being associated with the LTTE. To succeed in the claim, the onus is on the Appellant to demonstrate, firstly, that he faces a danger of torture, believed on substantial grounds to exist, or a risk to his life, or of cruel or unusual treatment or punishment. [39] The allegations of the Appellant relate to events that occurred in 2016. Since then, numerous political changes have occurred in Sri Lanka. In November of 2019, Gotabaya Rajapksa of the Sri Lanka Podujana Peramuna was elected as President, and he has appointed his brother, Mahinda Rajapksa, as Prime Minister.25 Although he was invited to make submissions on the latest NDP, the Appellant has not done so. There is insufficient evidence that Dayasiri Jayasekara is still the Minister of Sport, or that he plays a significant role in running the country, and that he would be motivated to pursue the Appellant were he to return to Sri Lanka, and seek to rejoin the national baseball team. Counsel's Memorandum also suggests that the Appellant cannot return to Sri Lanka because he has now exposed Dayasiri Jayasekara for taking bribes. However, there is insufficient evidence before me to demonstrate, on a balance of probabilities, that Dayasiri Jaysekera has, or will, resort to violence based on a vendetta against the Appellant. [40] The Appellant has not alleged that he is at risk in Sri Lanka purely as a failed refugee Claimant, and the country conditions documentation does not establish that a non-Tamil who is not suspected of membership in the LTTE would be subject to a risk other than being carefully questioned at the airport.26 CONCLUSION [41] I conclude that the Appellant is credible overall, but that he has provided insufficient evidence for me to conclude, on a balance of probabilities, that he faces forward-facing risks under section 97(1) of the IRPA. For that reason, the appeal fails. DETERMINATION [42] Pursuant to section 111(1)(a) of the IRPA,27 the Refugee Appeal Division confirms the decision of the RPD that the Appellant is neither a Convention refugee under section 96 of IRPA nor a person in need of protection under section 97(1) of IRPA. (signed) "Ron Liberman" Ron Liberman December 7, 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 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 96. 3 Ibid, section 97(1). 4 IRPA, section 110(4). 5 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 6 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 7 Tiodunmo v. Canada (Citizenship and Immigration), 2019 FC 1489. 8 Exhibit RPD-1, RPD Record, at p. 204. 9 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, [2014] 4 RCF 811. 10 Exhibit RPD-1, RPD Record, RPD Decision, at p. 3, at lines 40-41. 11 Exhibit RPD-1, RPD Record, at p. 200. 12 Exhibit P-2, Appellant's Record, at pp. 32-33. 13 Exhibit RPD-1, RPD Record, at p.174. 14 Exhibit RPD-1, RPD Record, at pp. 171-173. 15 Exhibit P-2, Appellant's Record, at p. 20; Exhibit RPD-1, RPD Record, at p. 173. 16 Ibid. 17 Exhibit RPD-1, RPD Record, at pp. 202-204. 18 Exhibit RPD-1, RPD Record, at pp. 175-178, and at pp. 193-198. 19 Exhibit RPD-1, RPD Record, at p. 182. 20 Exhibit RPD-1, RPD Record, at p. 119. 21 Exhibit RPD-1, RPD Record, at p. 200. 22 Exhibit RPD-1, RPD Record, at p. 187. 23 Exhibit RPD-1, RPD Record, at pp. 205-207. 24 National Documentation Package (NDP) for Sri Lanka (September 1, 2020), item 12.1: Sri Lanka. International Religious Freedom Report for 2019, United States. Department of State, 10 June 2020. 25 NDP for Sri Lanka (September 1, 2020), item 1.1: Sri Lanka, United Nations. Cartographic Section, March 2008; item 1.2: Sri Lanka. The World Factbook, United States. Central Intelligence Agency, 17 August 2020. 26 NDP for Sri Lanka (September 1, 2020), item 14.1: Sri Lanka: 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, 10 November 2017. 27 IRPA, section 111(1)(a). --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-35068 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