TB4-12714

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 File No. / N° de dossier de la SAR : TB4-12714 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX(A.K.A. XXXX XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 23, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Manuel A Jesudasan (Barrister and Solicitor) Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Sri Lanka, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to substitute that decision with a determination that the Appellant is a Convention refugee or a person in need of protection; or to refer the matter back to the RPD for re-determination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he suffered persecution beginning in 2013 because of his political affiliations during an election. The persecutor was a man named XXXX with whom the Appellant had a bad history going back to 2006 due to a dispute over a woman. The Appellant alleges that XXXX used his political position to persecute the Appellant and even after the Appellant's political Party lost the election in question, XXXX continued to persecute the Appellant. The Appellant was basically forced out of business and threatened. The Appellant used a Canadian visitor's visa he had legally obtained to flee to Canada, where he applied for protection. The details of the claim can be found in the Appellant's "Basis of Claim" (BOC) form which is part of the Record of Appeal. [4] The Appellant's application for refugee protection was heard on October 21, 2014 and a negative decision written on November 24, 2014. The RPD rejected the claim based on its perceived lack of credibility of the witness and upon an available Internal Flight Alternative (IFA). [5] The Appellant submits that the RPD erred in the following ways: [6] The RPD assessed the claim entirely as a Section 97 claim having found no nexus to a Convention ground when it is clear that the ground of political opinion exists. [7] The RPD misapprehended the Appellant's counsel's written submissions by adding the word "social" into the submissions when that word was not there. The Appellant submits that the RPD then referred to counsel's submission that the Appellant belonged to a particular social group without counsel identifying which particular social group the Appellant belonged to. Using this analysis, the RPD then found that the Appellant did not belong to any particular social group and therefore ruled out further Section 96 analyses. [8] The Appellant submits that the RPD erred in its credibility findings. The RPD found it implausible that the Appellant failed to report a personal attack upon him from XXXX; to the police although he did report to police earlier that XXXX had thrown stones at the Appellant's home. [9] The Appellant submits that the RPD erred when it gave little or no weight to documentary evidence disclosed, specifically a letter from the leader of the political Party for which the Appellant volunteered. The RPD gave this letter little weight because it did not mention XXXX as the persecutor when the author was aware that XXXX was the persecutor in question. [10] The RPD erred, it is submitted, when it found that there was nothing linking a photo of a bus and a damaged structure alleged to be the Appellant's property damaged by XXXX, to the Appellant or to the letter disclosed which was written to the local Transport Authority as a complaint. The Appellant submits that was the Appellant's oral testimony and documentary evidence which included the Certificate of Registration of XXXX XXXX which certified the Appellant's partnership in XXXX XXXX. [11] The Appellant submits that the RPD erred in discounting an email from XXXX XXXX simply because that email failed to mention XXXX by name. It is submitted that nowhere was evidence presented that indicated that XXXX saw who the attackers were in this incident therefore rendering the RPD observation to be wrong and based on an unreasonable assumption. The RPD also found it odd that the email was in English (to the Appellant) when the BOC indicates that the Appellant only speaks a little bit of English. It is submitted that the RPD failed to question the Appellant in regards to his ability to read or to write English rendering the RPD's finding on this matter as unreasonable. [12] Finally, the Appellant submits that the RPD erred in dealing with the issue of an IFA. The Appellant refers to the National Documentation Package (NDP), item 2.1, contained in the Record of Appeal at pages 54-56 as being contrary to and not supporting of the RPD's findings. ANALYSIS Admissibility of Evidence Submitted on Appeal [13] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [14] Even where a document meets the test in Section 110(4), this does not require the RAD to admit it into evidence without any further consideration. [15] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.1 [16] The Appellant has submitted one document requested it be admitted as new evidence. This document is downloaded and photocopied article from the internet, apparently from a website called "Tamilwin.com" and dated January 15, 2015.2 The article speaks about the President of the private bus owner's union complaining about a monthly ransom being collected from bus owners. In the article, the President is demanding the ransoms be stopped and that officials take legal action. [17] There is nothing in this article which is material to this claim. That is, even if accepted, the article does not support a decision of one way or another for this Appellant as it had little bearing on the basis of the claim alleged by the Appellant. If accepted as credible, the article could show that there is a very general risk of extortion by all private bus owners which could have included the Appellant however; such a general risk of criminal extortion is not supportive in either a Section 96 or Section 97 claim. [18] The article has no credibility to it, either. It is something from a website which has no internationally known reputation of credibility such Freedom House or Amnesty International and therefore the RAD can give it little weight as a credible document. Either way, as it is not material to this claim, it will not be accepted as new evidence. Role of the RAD [19] In regards to the role that the RAD plays in the review of an RPD decision, the RAD finds that the recent Federal Court decision, in Huruglica,3 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [20] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RAD's Findings [21] The RAD has analysed the claim, read the documents presented and listened to an audio copy of the hearing. [22] Although the Appellant submits an account of many perceived errors made by the RPD, the RAD has decided to deal with only one, which is itself, determinative and that is the issue of IFA. [23] The RPD conducted a thorough analysis of the IFA, referring to the two prong test established by Rasaratnam.4 The RPD looked at three possible IFA's being the cities or towns of Colombo (XXXX kilometres (km) away from the Appellant's hometown), Trincomalee (XXXX km away) and Jaffna (XXXX km away). [24] It is true, as the RPD found, that all three of these locations could be suitable as none would present any unreasonable conditions or unduly harsh circumstances for the Appellant in which to establish himself; and there is no serious possibility of persecution in any of these three places for the Appellant so the Appellant would not be, on a balance of probabilities subjected to a risk to life or a risk of cruel or unusual treatment of punishment or to a danger of torture. [25] The Appellant submits that the RPD erred in this assessment and that the documents presented by the Appellant in his Record of Appeal at page 54-56 is contrary to and unsupportive of the RPD's finding on IFA. The RAD has read these documents; thoroughly along with other documents in the NDP5 indicate that persons of Sinhalese background have never been forced to register with the police, in Colombo regardless of where they have come from. However; even if registration is necessary in order for the Appellant to educate his children, as pointed out by the RPD, there is no reasonable excuse for the Appellant not to obtain the registration by presenting one of many alternative forms of documentation, none of which indicate his current address. These include his National Identity Card, his passport, or a letter from the Grama Seveka from his home town (which could be obtained by his family members on his behalf). It is therefore the finding of the RAD that there is no reasonable chance, on a balance of probabilities that, even if XXXX was interested in searching for the Appellant throughout the entire country and even if XXXX had the resources to do so, that he would be able find the Appellant. This is a country of over 20,000,000 population. The Appellant is a man of very low, provincial or local political profile who was being persecuted by an individual who happened to be in a position of local power and who had a previous vendetta against the Appellant. The Appellant, once removed from the sphere of influence of the persecutor is very unlikely to face any persecution. As the RPD mentioned in its finding, the Appellant no longer has any political affiliations in Sri Lanka, no longer owns his business in XXXX ( a small city of about XXXX XXXX XXXX population) and there has been no evidence disclosed which would reasonably suggest that XXXX has the means to chase the Appellant all over Sri Lanka. [26] The RAD finds that the IFA, as discussed thoroughly by the RPD does exist and as it is determinative, the RAD will not analyse the other issues submitted by the Appellant. Disposition [27] The RAD has found that the RPD decision will stand based on the availability of an IFA. CONCLUSION [28] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe April 23, 2015 Date 1 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 2 Exhibit P-2, Appellant's Record, pp.69-70. 3 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 4 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 5Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Sri Lanka (March 14, 2014), item 14.2, p. 100. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-12714