TB9-27622

RAD File / Dossier de la SAR : TB9-27622 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 Vancouver, BC Appel instruit / entendu à Date of decision November 4, 2020 Date de la décision Panel Ron Liberman Tribunal Counsel for the person who is the subject of the appeal Jacqueline M. Lewis 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 XXXX, a citizen of Sri Lanka, appeals a decision of the Refugee Protection Division (RPD) dated September 23, 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 Record and the oral testimony. I have determined that the RPD erred in its assessment of the Appellant's credibility, that he faces more than a minimal risk of persecution if returned to Sri Lanka, and that he is a Convention1 refugee. BACKGROUND [2] The Appellant alleges as follows. He fears persecution owing to wanting his money back for applications for Canadian work permits for himself and his brother, which he paid XXXX XXXX XXXX (RDA) XXXX XXXX XXXX rupees to obtain. The Appellant testified RDA worked with XXXX XXXX XXXX (DDS), who is a XXXX XXXX XXXX. After attending the Canadian Embassy and receiving a warning about persons in Sri Lanka who had provided false information and documents in support of immigration applications, the Appellant demanded RDA return the money. He went to the police, who ordered RDA to return the money. In XXXX 2014, the Appellant was visited by five people who ordered him not to pursue RDA for the money, because the matter involved DDS. On XXXX XXXX, 2014, the Appellant by chance encountered RDA and demanded his money back. In the ensuing argument, the Appellant's brother was pushed to the ground, and RDA warned the Appellant he would punish him. After a subsequent complaint to the police on XXXX XXXX XXXX 2014, the Appellant was abducted by three men and taken in a van to an abandoned rural house where he was confronted by DDS and beaten. After XXXX days, he was beaten unconscious by the men, and woke up in a wooded area. When he arrived home, his wife told him she had been threatened with death. RDA spread rumours that the Appellant was a member of the United National Party (UNP), with the result that supporters of RDA and Mahindra Rajapaksa became angry with him. The police arrested the Appellant after election-related skirmishes and held him for XXXX days under harsh conditions before he was released. He was accused of burning posters that supported Mahindra Rajapaksa's election, but he refused to confess. On XXXX XXXX XXXX 2015, the Appellant was beaten by supporters of the Sri Lanka Freedom Party who recognized him. As a result, the Appellant moved with his family to a farmhouse on a XXXX XXXX in the same region. Unfortunately, the property was burned down on XXXX XXXX, 2015. The Appellant suspects supporters of DDS and Mahindra Rajapaksa did this. The Appellant fled Sri Lanka using a valid United States (US) visa in XXXX 2015, and stayed in Staten Island, New York. He entered Canada in XXXX 2018. Since leaving Sri Lanka, the Appellant has been suspected by the authorities and the Bodu Bala Sena (BBS) Buddhist extremist group of aiding the Liberation Tigers of Tamil Eelam (LTTE). This accusation emerged after the Appellant's relative from Qatar was detained in Sri Lanka. Subsequently, a friend was attacked after taking a parcel to the Appellant's family in Sri Lanka. The friend was taken to the police, who told him the Appellant was acting against the army and the government in exchange for money he was receiving from the Tamil diaspora. His friend did not admit that these accusations are true. RPD findings [3] The RPD found the Appellant had not reasonably explained why he abandoned his US asylum claim. There were inconsistencies and omissions in his account. The RPD therefore did not accept that the events of XXXX XXXX, 2014 had occurred or that the subsequent fire at the farmhouse had been caused by the agents of harm. The RPD gave little weight to corroborating documents supplied by the Appellant. Additionally, DDS is in jail. The Appellant is Sinhalese, Buddhist and has no credible ties to the LTTE and as such faces no risks. Appellant's arguments [4] The Appellant argues the RPD failed to deal with one ground of the claim: the risk of harm the Appellant faces as a failed asylum seeker. The Appellant also argues his delay in claiming in the US is reasonably explained, that the RPD erred in its credibility findings, and ignored medical reports and corroborating evidence. ROLE OF THE RAD [5] In accordance with the decision in Huruglica,2 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 [6] I analyze below the findings of the RPD against the claim of the Appellant. US asylum claim [7] The RPD drew a negative inference because the Appellant failed to leave the US within XXXX months of the inauguration of President Trump, and more so especially that he waited XXXX months after learning from a tweet by Prime Minister Justin Trudeau that he might be able to move to Canada. [8] I note the oral testimony reflects that the Appellant stated he became concerned by the Trump administration's policies, and did not proceed with his US claim because he was concerned that even if his claim was accepted, a lot of refugee claimants were being deported. He testified that he did not leave right away when he learned of 'an opened invitation' from Prime Minister Justin Trudeau, because he was unsure of the route he needed to follow to come to Canada. The Appellant explained that he was living in Paris, Texas, and then moved to Houston, Texas. It was after about three months in Houston that he was able to find out how to come to Canada, bought an air ticket and came to Canada. [9] Counsel submits that the RPD erred in referring to a tweet by Prime Minister Trudeau, and that this renders the decision unintelligible. I agree with Counsel that the RPD erred by referring to a tweet, because there is no reference to that in the Record. Nevertheless, I find this mistake does not render the RPD decision unintelligible. As per the Supreme Court of Canada decision in the case of Vavilov, a decision will be unreasonable "if the reasons for it, read holistically, fail to reveal a rational chain of analysis." 3 The RPD's error, in my view, does not mean there is a flaw in the RPD's logic in this situation where the RPD correctly apprehended that the Appellant was referring to an invitation, even if the RPD was incorrect that the invitation was contained within a tweet. [10] However, I agree with Counsel's further submission in paragraph 21 of the Memorandum4 that persons without a Canadian visa cannot be expected to just 'hop on a plane' and come to Canada immediately when learning that they might be able to come here. [11] I also agree with Counsel that it is unreasonable to count the Appellant's delay in leaving the US from the date of President Trump's inauguration as his immigration policies unfolded over time, and that the Appellant was not at immediate risk of removal at the time when he left the US. [12] For these reasons I find that the RPD erred in drawing a negative inference against the Appellant's subjective fear because of his delay in leaving the US. Alleged incident on XXXX XXXX, 2014 [13] The RPD found that this incident, in which the Appellant alleged he was abducted, held, and beaten before being released did not occur, because he had indicated in his Basis of Claim (BOC) that DDS was present on the first day of the incident and that he was unable to eat on the first day, but this is contradicted by his statement that he was fed after meeting with DDS. The RPD found the Appellant's explanation for this contradiction - that he was under a lot of pressure at the meeting - was not a reasonable one, because it was unlikely that the Appellant would be unable to remember when the main agent of persecution appeared during this ordeal. [14] I find, on reviewing the oral testimony, that the RPD is misapprehending the evidence. The Appellant did not state he was unable to recall on which day he saw DDS; he stated he could not recall whether he ate anything on the first day. I agree with Counsel that the timing of when the Appellant ate on the first day of his ordeal or whether he ate at all is not sufficiently central to the claim that it merits drawing a negative inference against the credibility of the Appellant. I find that the RPD erred in drawing this inference. Inconsistency as to how the Appellant left detention [15] The RPD found that the Appellant's testimony about how he had returned home after the three-day detention was not credible, based on comparison of the US asylum claim he filed and the Appellant's detailed explanation of events to the RPD. [16] The Appellant testified that the details on his US form were incorrect and that he had asked his US lawyer to correct it, but that his lawyer did not have time to correct this error because of a filing deadline, and told the Appellant he would need to explain the issue to the Court. The RPD found this explanation not to be credible, because the Appellant confirmed having sworn that the details on his US form were true and correct, and because it was unlikely that the US law firm would be unable to correct the error quickly. [17] Counsel submits that the RPD erred by relying on an unedited version of the US asylum claim and points out that in Canada, it is possible to amend a BOC before the hearing, and the US document was not necessarily the final version that would be submitted to a hearing in that country. [18] I find this implausibility finding of the RPD - that it is unlikely that the US attorney would not have had time to amend the Appellant's claim - is not made in the clearest of cases, in view of the explanation that Counsel provides in the Memorandum. I find it is not entirely beyond the realm of reasonable expectation that an error in the Appellant's US claim would not come to his attention until the last moment, and that the US lawyer would be unable to correct it before meeting a deadline, because in order to do that the attorney might need to send the claim back to the Appellant for his signature. I also find that the RPD is assuming that the details of the Court process for US asylum claims correspond with those of a hearing before the RPD, and while no doubt there are similarities, there is no evidence that they are identical. [19] With regard to the Appellant having sworn under penalty of perjury that the US form was correct, the Appellant explained at the RPD hearing that he did not understand himself to be swearing that the form was true and correct, because he assumed the lawyer would correct it, as he had undertaken to do before sending it. [20] While I can understand why the RPD had concerns about this explanation, I agree with Counsel that this discrepancy is insufficient in itself to conclude that the incident of XXXX XXXX, 2014 did not occur, when it is weighed against the testimony of the Appellant and the affidavits of his father and wife in the RPD Record,5 which both confirm this incident, and which the RPD erroneously did not discuss in its Reasons. I have not had the opportunity to examine either of these affiants, but since there is no indication that the affidavits are not authentic, I give these documents some weight. I note that the sworn testimony of an Appellant is presumed to be true unless the presumption is rebutted.6 In view of the above, I accept the explanation of the Appellant on this point, and I do not hold it against his credibility. Fire at residence [21] The RPD drew a negative inference against the credibility of the Appellant because of a failure to mention in his BOC, his US claim, his wife's affidavit, and in his initial conversation with the US police, that his wife had seen someone running away after the fire. The RPD consequently found that the fire was not set by the alleged agents of persecution. [22] Counsel responds to this finding in the Memorandum by stating firstly that the Appellant never testified that he called the police a second time; instead the Appellant went to the police station. Counsel also points out that because the RPD did not have an opportunity to question the Appellant's wife about this matter, it cannot hold her affidavit against his credibility. Although the RPD confronted the Appellant with the omission from his wife's affidavit, I agree with Counsel that it cannot be held against the credibility of the evidence she provided, because of the fact that she has not had an opportunity to explain the omission. [23] I agree with Counsel, having studied the transcript of the oral testimony, that the Appellant did not call the police - he testified that he went to the police and was told because it was Independence Day, they were too busy to take his complaint, that they investigated the matter the following day, but that their investigation has not led to any results. [24] In my view there is insufficient evidence to establish that this fire was set by the agents of persecution. The fire is therefore, from my perspective, a neutral factor in this claim. [25] The Appellant gave a detailed explanation of what happened, and I do not count it against his credibility that his wife omitted seeing a man running away after the fire from her affidavit, or that the Appellant omitted this information from his BOC and his US asylum claim documents. I regard those omissions as peripheral matters because, although I find there is sufficient evidence in the form of sworn testimony from the Appellant and in his wife's affidavit that the fire occurred, it does not appear from the evidence that they are certain that the fire was initiated by the agents of harm. Appellant's involvement with the LTTE [26] The RPD drew a further negative credibility inference against the Appellant because his wife's affidavit mentioned that a friend of the Appellant had delivered a package to her home at the Appellant's request and had been arrested, but failed to mention that the police had subsequently questioned her. [27] The Appellant explained at the RPD hearing, when questioned by the RPD on this omission, that his wife had perhaps forgotten to include this detail. Counsel's Memorandum again points out that the RPD did not question the Appellant's wife as to why this information had been omitted from her affidavit, and that therefore this issue cannot be used to impugn the Appellant's credibility. I agree with Counsel's position, for reasons analogous to those stated previously. [28] The RPD also found that the Appellant was not credible because while he disclosed that a letter from the Sri Lankan Criminal Investigation Department (CID) had been addressed to his wife, the affidavit of the Appellant's father stated that "we" had received the letter,7 and the father and the Appellant's mother live separately from the Appellant's wife. The RPD stated the Appellant explained that his father had also received a copy of the letter. The RPD did not accept this explanation, finding that it was unlikely that the Appellant would not have provided the second copy of this letter, and that he had omitted the second letter from his BOC and initial testimony. [29] Owing to this, and because the letter only indicated that the police wished to question the Appellant and did not explain why, the RPD gave the letter little weight. [30] I agree with Counsel's submissions that the oral testimony does not establish that there were two copies of the letter, or that the Appellant stated that his father had received a copy of the letter. I accept Counsel's submission that 'we' in the father's affidavit could refer to a single letter which had been received by the family. I also agree that the Appellant was not asked why he did not produce both letters, and that even if one assumes that two identical letters had been received, that it would have been reasonable for the Appellant to have produced only one letter to the RPD. [31] I find that the RPD's conclusion that based on the above issues the Appellant did not face any threats because he was suspected of being a member of the LTTE or associated with the Tamil diaspora, or a threat from the BBS, is not a reasonable conclusion to draw based on the evidence, and that these matters do not impugn the credibility of the Appellant. [32] I note the translation of the letter from the CID indicates that it is from the Terrorist Investigative Unit of the CID.8 I have given some weight to the affidavits of the Appellant's wife and father, and I find together with the sworn testimony of the Appellant this is sufficient to establish the Appellant's claim that he is suspected of being a member of the LTTE. Overall conclusion on credibility and subjective fear [33] Since I find that the negative credibility findings of the RPD are in error, the presumption of truthfulness which attaches to the Appellant's BOC and his sworn testimony have not been rebutted. I find the Appellant's allegations are credible, and that the evidence establishes he is suspected of being a member of the LTTE. I find the Appellant's subjective fear of the agents of persecution as stated in his claim must also be accepted, because the RPD erred in its findings in this regard. Risk to the Appellant on return to Sri Lanka [34] I find circumstances have worsened for the Appellant. I note that as per the National Documentation Package for Sri Lanka, Gotabaya Rajapaksa was elected as President of Sri Lanka on November 16, 2019. He was a key figure in the war against the LTTE, during which the United Nations states war crimes and crimes against humanity were committed by soldiers who would have been under his direct command. Mr. Rajapaksa's return to power was "premised on the notion that Sri Lanka needed a strong man to take on terrorism and bring back security after the Easter Sunday bombings in Sri Lanka", and his intention to "crush any opposition and suppress dissent." 9 I note the Appellant was accused by the police of having burned posters supporting Mahindra Rajapaksa, who the country documentation establishes is now the Prime Minister of Sri Lanka, and is Gotabaya Rajapaksa's brother. [35] I accept that, as a perceived supporter of the LTTE who has already been detained by the police and is accused of being opposed to the current Prime Minister, even though he is Sinhalese and Buddhist, based on the objective evidence the Appellant faces more than a minimal risk of persecution by the Sri Lankan authorities if returned to Sri Lanka. It is unnecessary in this context for me to examine the additional risks the Appellant will face - whether there is a link between RDA, DDS and Mahindra Rajapaksa or to examine the role of the BBS - when assessing the probability that the Appellant will be persecuted. State Protection and IFA [36] These issues were not addressed by the RPD decision because it decided the claim on the matter of credibility. The agent of persecution in the case of a person suspected of membership in the LTTE is the Sri Lankan government. I find in consequence there is no state protection for the Appellant, and that there is no viable Internal Flight Alternative available to him anywhere in Sri Lanka. CONCLUSION [37] For the preceding reasons, I find that the Appellant meets all the requirements under section 96 of Immigration and Refugee Protection Act (IRPA)10 to be a Convention refugee. DETERMINATION [38] Pursuant to paragraph 111(1)(b) of the IRPA,11 the Refugee Appeal Division allows the appeal and substitutes the decision of the RPD with a determination that the Appellant is a Convention refugee. (signed) "Ron Liberman" Ron Liberman November 4, 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 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 3 Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65. 4 Exhibit P-2, Appellant's Record, Memorandum, at p. 10. 5 Exhibit RPD-1, RPD Record, Affidavit of father and wife, at pp. 217-220. 6 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (FCA). 7 Supra, at endnote 5, p. 218. 8 Exhibit RPD-1, RPD Decision p. 208. 9 National Documentation Package for Sri Lanka (March 31, 2020), item 2.15: Sri Lanka: And the crackdown begins, January 2020. 10 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 96. 11 IRPA, section 111(1)(c). --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-27622 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