MB8-02293

RAD File / Dossier de la SAR : MB8-02293 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision June 11, 2020 Date de la décision Panel Rita Aggarwala Tribunal Counsel for the person who is the subject of the appeal Elyse Korman Barrister and Solicitor Conseil de la|des 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] Ms. XXXX XXXX XXXX XXXX XXXX, a citizen of Sri Lanka, was denied Convention1 refugee protection by the Refugee Protection Division (RPD) in a decision dated December 27, 2017. She was also told that she is not a person in need of protection. She is appealing that decision to the Refugee Appeal Division (RAD). [2] For the reasons that follow, the appeal is allowed. Ms. XXXX is a person in need of protection pursuant to section 97(1)(b) of the Immigration and Refugee Protection Act (IRPA).2 [3] Ms. XXXX claims that if she returns to Sri Lanka, she will face a risk to life or a risk of cruel and unusual treatment or punishment ("Section 97(1)(b) Harm") from the owners of her former employer (the "Owners"). She claims that she angered the Owners after exposing their XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, to the Criminal Investigation Division (CID) of Sri Lanka, which she describes as the Sri Lankan secret police, and which is described in the Sri Lanka National Documentation Package (NDP) as the division of the Sri Lanka Police Service that considers serious and complex criminal investigations, country wide.3 She also claims that because of her political activities with the Sri Lanka Freedom Party (SLFP), she will face persecution from the SLFP's political rivals in the United National Party (UNP) if she returns to Sri Lanka. [4] The determinative issue in this case is whether Ms. XXXX has provided sufficient credible evidence to establish that she is a person in need of protection. I find that she has. Contrary to the findings of the RPD, I agree with Ms. XXXX that her evidence was generally consistent, detailed and spontaneous, and that her explanations when confronted with the RPD in regards to her story were reasonable. DECISION [5] This appeal is allowed. I substitute my own decision that Ms. XXXX is a person in need of protection. [6] My role is to look at all of the evidence and decide if the RPD made the correct decision. I have accordingly reviewed all of the evidence and submissions and listened to the oral recording of the RPD hearing. These reasons are based on my independent assessment of the evidence and submissions. [7] I find that the evidence establishes that the risk faced by Ms. XXXX from the Owners is such that she will face a risk to her life or a risk of cruel and unusual treatment or punishment, on a balance of probabilities, if she returns to Sri Lanka. As such, I have not considered the risk posed by political rivals in the UNP, which Ms. XXXX admitted in oral testimony is the lesser of her concerns. BACKGROUND [8] The following is a summary of the Ms. XXXX's claim against the Owners, as described by Ms. XXXX. As explained below, I find her testimony to be credible and accept her account of the facts. [9] On XXXX XXXX, 2012, prior to leaving Sri Lanka later that year, Ms. XXXX and two of her co-workers, XXXX and XXXX, were questioned by XXXX officials at their place of work. Based on that questioning, they were taken to the CID where they were questioned further. The CID assured Ms. XXXX that any information she provided to them would be kept confidential. The CID told her that XXXX had already provided details of the Owners' XXXX XXXX XXXX Ms. XXXX was told that if she did not provide the details she knew, she would be in trouble. She told the CID everything she knew about the XXXX XXXX, the XXXX XXXX, and XXXX XXXX that occurred at her workplace. [10] That same evening, one of the Owners, XXXX XXXX XXXX, called her and demanded that she report to work immediately. She promised him she would come in the next day. She then called XXXX, who told her XXXX XXXX XXXX was very angry and knew that she had provided information to the CID. She went to another friend's house for the night, and found out that four armed thugs visited her mother's home (where she normally lived) that night and demanded to know where she was. They told Ms. XXXX's mother that Ms. XXXX had provided damaging information to the CID, and that they would kill her when they found her. Ms. XXXX stayed at her friend's house until she found care-giving employment with a former employer in XXXX XXXX She left Sri Lanka in XXXX 2012. [11] About two weeks after her questioning with the CID, in XXXX 2012, Ms. XXXX learned that XXXX had been severely beaten and left in XXXX XXXX XXXX. XXXX survived and fled to XXXX. [12] Ms. XXXX, now distrusting the CID, consulted a lawyer as to her options. The lawyer, who has provided a letter in support of Ms. XXXX's refugee claim, opined that Ms. XXXX would not be able to obtain any sort of justice against the Owners, given their positions of power in the country. THE RPD ERRED IN ITS CREDIBILITY FINDINGS [13] I find Ms. XXXX's testimony to be credible. It was spontaneous, detailed, consistent and reasonable. [14] The Minister of Citizenship and Immigration (the "Minister") intervened in writing at the RPD Hearing. The Minister submitted that Ms. XXXX's testimony ought to be found not credible, because of her failure to seek police protection or to relocate prior to leaving Sri Lanka (I will address these submissions later in these reasons), and because of her delay in applying for Convention refugee status in Canada. [15] The RPD Member rejected Ms. XXXX's claim, because he found that she did not behave like a person who fears persecution. The RPD Member found that Ms. XXXX's delays in applying for refugee status in Canada, along with her failure to claim asylum in Israel, a Convention signatory, without explanation, and her decision not to tell the Canadian visa consultant she hired about the dangers she faces in Sri Lanka were such that she did not fear persecution when she left Sri Lanka in 2012. [16] Ms. XXXX's explanation when asked about these matters was that she did not apply for asylum in Israel in 2012/2013 because she knew people who had applied, been denied, and had been sent back to Sri Lanka. She did not apply for asylum immediately upon reaching Canada in 2013 because she had a work visa and she had signed an agreement with the agent she was dealing with in Israel that she would not claim asylum in Canada. She did not know how long that agreement was binding for. She did not tell her visa consultant in 2014/2015 about the dangers she faces in Sri Lanka because the consultant told her that once she had worked in Canada for two years, she could apply for permanent resident status, so she thought everything would be okay. She also thought, at that point, that she was still bound by the agreement she had signed in Israel. It was only when she met someone at her church in 2015, who assured her she could apply for asylum in Canada and who connected her with a lawyer, that Ms. XXXX finally applied for refugee status. [17] I find these explanations fully explain Ms. XXXX's delays in making claims. I find them to be reasonable and to benefit from the presumption of truth. Ms. XXXX cannot be expected to know who is and who is not a signatory of the Convention and to make decisions accordingly. Contrary to the RPD Member's findings, she did provide an explanation about why she did not claim asylum in Israel. I find her explanations on this issue and the others outlined above to be both reasonable and credible. [18] The RPD found that Ms. XXXX's explanation for not simply quitting her job after finding XXXX on the premises was "not coherent because if she felt threatened for having seen the XXXX and wanted to leave her job because of this, she could have. She was not forced to stay there."4 This completely ignores MsXXXX XXXX's evidence. In fact, Ms. XXXX explained that she did submit a letter of resignation, but the Owners refused to accept it, were very angry, and told her that she was required to provide six months' notice. She continued working out of fear. I accept this testimony as credible. [19] The RPD Member then found that it was unreasonable that Ms. XXXX was required to provide six months' notice, as her job was not such that it would require that. It is an error to require Ms. XXXX to explain the rationale for her employer's requirement of six months' notice. The RPD similarly erred in requiring her to establish that she had a position that required six months' notice, or to establish why she would have been forced to give six months' notice of resignation. [20] Furthermore, the RPD Member found it unreasonable that Ms. XXXX did not provide any documentation with respect to her employment in Sri Lanka, and that she did not provide a copy of the agreement she claims to have signed in Israel, stating that she would not claim asylum in Canada if she was permitted a temporary visa. [21] I find that these documentary omissions on their own are not sufficient to rebut the presumption of truth that applies to Ms. XXXX's testimony. Her testimony with respect to these issues was consistent and detailed and I find it was credible on a balance of probabilities. I agree with Ms. XXXX that the RPD's finding that her testimony was "very hesitant" and contained several inconsistencies and omissions is simply incorrect. I agree with Ms. XXXX that the RPD's finding that she did not indicate in the Basis of Claim (BOC) form that she had seen XXXX at her place of employment is not a serious omission given that she did mention in her BOC form that she learned the Owners were using her place of employment for drug dealing. [22] Ms. XXXX's testimony was very direct and remarkably consistent given the number of times the RPD Member questioned her on the same matters during the course of the RPD Hearing, even after she had provided an answer. She did not embellish her testimony, even when given the opportunity to do so. The one long pause in her testimony was following a question where she mistakenly named one agent of persecution when she meant to name another, and she immediately corrected her mistake. This happened a few times in her testimony. The RPD Member asked her, "how could you be mistaken about that name?"5 She did not respond to the question. Again, I do not find this impugns her credibility in the least. I find she was not mistaken about any names. Mistakenly saying one name and immediately correcting it is something that occurs frequently in human discourse, even when events are current, let alone when events happened several years ago. [23] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status6 explains at paragraph 190 that refugee claimants are often in "particularly vulnerable situation[s]," in "alien environments" where they do not know the language. Indeed, Ms. XXXX testified at the RPD Hearing with an interpreter. I found the RPD Member to be unnecessarily harsh in his tone and adversarial with Ms. XXXX. Yet, to her credit, I find Ms. XXXX still managed to provide clear, comprehensive and credible testimony. [24] In summary, I find MsXXXX XXXX's testimony to be a credible. I accept her account of the facts leading to the RPD Hearing. I will now examine whether these facts provide a basis for a declaration that Ms. XXXX is a person in need of protection. MS. XXXX IS A PERSON IN NEED OF PROTECTION [25] In order to establish that she is a person in need of protection under section 97(1)(b) of the IRPA, Ms. XXXX must prove that, based on the evidence and findings of fact, she is more likely than not to face a risk to her life or a risk of cruel and unusual treatment or punishment if she returns to Sri Lanka. This risk must be one that is not faced generally by others in Sri Lankan society. Agents of Persecution [26] Ms. XXXX says she fears she will be killed by the Owners of the company she worked for if she returns to Sri Lanka, specifically by XXXX XXXX, who was a XXXX XXXX XXXX and XXXX XXXX in 2012 when she left Sri Lanka, and XXXX XXXX. She fears them because she told the CID that they were engaged XXXX XXXX XXXX and XXXX XXXX, and this angered them greatly. Mrs. XXXX Faces Section 97(1)b) Harm from the Owners if She Returns to Sri Lanka [27] As explained above, I have found Ms. XXXX to be credible, and accept her testimony as to the facts of this case. [28] Ms. XXXX was still in touch with her mother at the time of the RPD Hearing. She was told that Mr. XXXX's thugs had come looking for her, as recently as XXXX XXXX, 2017.7 They threatened her mother and said they would kill Ms. XXXX if she ever returned to Sri Lanka. She did not submit any new evidence to the RAD regarding threats that may have happened after XXXX XXXX, 2017. The RPD Hearing was on November 22, 2017. The RAD analysis is a forward-looking one, from the date of this decision. [29] Ms. XXXX submitted a number of articles to the RPD which date back to the period around 2012, which I find establish, on a balance of probabilities, that Mr. XXXX was involved in drug dealing, intimidation and police corruption. These articles describe the police's inability or failure to investigate Mr. XXXX regarding a number of criminal events because of his position and connections;8 MrXXXX XXXX's links to drug trafficking9; and Mr. XXXX's history of intimidation of those he perceives as traitors to Sri Lanka.10 I note that recent presidential elections in Sri Lanka have resulted in the election of a head of state from the same political party as was in power in 2012, being the party that Mr. XXXX supported. There are widespread fears and evidence of renewed police and government corruption, including in the CID.11 [30] MsXXXX XXXX's mother received threats connected with Mr. XXXX shortly before the RPD Hearing in 2017. I find Mr. XXXX is a powerful and connected person with connections to the drug trade, who has threatened those he sees as traitors and who has not been pursued or even investigated by Sri Lankan police for a number of crimes to which he has connections. That police force is now directed by the same head-of-state as existed at the time of Ms. XXXX's troubles with Mr. XXXX and her departure from Sri Lanka. Ms. XXXX is likely to be viewed by Mr. XXXX as a traitor to him personally, not just to Sri Lanka. Given the evidence of Mr. XXXX's history of intimidation and his apparent immunity from prosecution, I find Ms. XXXX faces a forward-facing likelihood of Section 97(1)(b) Harm if she is returned to Sri Lanka. Police Protection is not adequate [31] The Minister argued in his written submissions to the RPD that Ms. XXXX had an obligation to seek police protection in Sri Lanka prior to leaving in 2012, I disagree with the Minister's submission. Given the particular facts of this case, including the profile of Mr. XXXX and the information Ms. XXXX had obtained from XXXX on the night of the CID questioning, along with the news of what happened to her co-worker XXXX and the opinion she later received from a lawyer, Ms. XXXX was not obliged to seek police protection prior to leaving Sri Lanka in 2012. Her fear that the police would harm rather than help her was reasonable. [32] One of the agents of persecution, Mr. XXXX, is a powerful figure and XXXX XXXX XXXX XXXX XXXX XXXX government of Sri Lanka. I find that he has influence throughout Sri Lanka given his profile. There is additional forward-looking risk at this point in time, because Mr. XXXX's political party XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Sri Lanka. Mr. XXXX has been insulated from police investigation. The police force, including the CID, is a national force. It follows that Ms. XXXX will not have adequate state protection if she returns to Sri Lanka. There is no Internal Flight Alternative (IFA) [33] I disagree with the Minister that Ms. XXXX ought to have made an attempt to relocate to another area in Sri Lanka. As stated above, the police force is a national force in Sri Lanka, and Mr. XXXX is a powerful figure who has not been pursued by police despite his notorious record. Effectively, Ms. XXXX's agent of persecution is so connected to the state that IFA is not available to her. [34] Accordingly, I find, on a balance of probabilities, that Ms. XXXX is at risk of facing Section 97(1)(b) Harm everywhere in Sri Lanka, if she returns there. CONCLUSION [35] The appeal is allowed. MsXXXX XXXX XXXX XXXX XXXX XXXX is a person in need of protection. (signed) "Rita Aggarwala" Rita Aggarwala June 11, 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, S.C. 2001, c. 27. 3 National Documentation Package (NPD) for Sri Lanka, 31 March 2020, Item 7.4: ?Sri Lanka. 2019 Crime & Safety Report. United States. Overseas Security Advisory Council. 28 February 2019, at p. 7. 4 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 7. 5 RPD Hearing: Oral recording. 6 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, UNHCR 1979. Reedited: Geneva, January 1992. 7 RPD Hearing: Oral recording. 8 Exhibit RPD-1, RPD Record, Claiment's Evidence: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2013, XXXX,XXXXt p. 162; Exhibit RPD-1, RPD Record, Claiment's Evidence: XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2013, XXXX, at p. 183. 9 Ibid, and Exhibit RPD-1, RPD Record, Claiment's Evidence: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX, 2011, XXXX XXXX, at p. 167; Exhibit RPD-1, RPD Record, Claiment's Evidence: XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2012, XXXX XXXX XXXX p. 182. 10 Exhibit RPD-1, RPD Record, Claiment's Evidence: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2012, XXXX XXXX at p. 168; Exhibit RPD-1, RPD Record, Claiment's Evidence: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2013, XXXX, at p. 171. 11 NDP for Sri Lanka, 31 March 2020, Item 2.15: Sri Lanka: And the crackdown begins. International Truth and Justice Project; Journalists for Democracy in Sri Lanka. January 2020. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-02293 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