VB7-04547

RAD File / Dossier de la SAR : VB7-04547 VB7-04548 / VB7-04549 / VB7-04550 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personne(s) en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision March 14, 2019 Date de la décision Panel Daniel Tucci Tribunal Counsel for the person(s) who is(are) the subject of the appeal David Matas Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX XXXXforXXXXXXXX XXXX XXXXXXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Principal Appellant), XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX, citizens of Sri Lanka, appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. They request that the Refugee Appeal Division (RAD) set aside the RPD's decision under section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA)1 and find that the Appellants are Convention2 refugees. The Principal Appellant was appointed as the designated representative for his minor children for the purpose of this appeal. [2] The Appellants filed an appeal of the negative RPD decision. The RAD confirmed the decision of the RPD. The Appellants filed an application for leave to seek judicial review of the RAD decision. The Federal Court set aside the RAD decision on the consent of the parties. The matter was returned to the RAD so that the matter could be heard by a new panel. DETERMINATION OF THE APPEAL [3] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are Convention refuges pursuant to section 96 of the IRPA. BACKGROUND [4] The Appellants are citizens of Sri Lanka. The Principal Appellant was a XXXX in the XXXX XXXX. He became involved in the political process in Sri Lanka. He joined the Sri Lanka Freedom Party (SLFP) in 2005. The Principal Appellant took on a more prominent role within the SLFP. He became a XXXX for the party. He XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX The Principal Appellant's problem began in 2015 when the leader of the SLFP (Rajapaksa) lost the national election. Individuals who challenged the results of the 2015 election held a major protest rally following the election. The Principal Appellant XXXX XXXX to XXXX the rally. [5] The Principal Appellant has detailed a number of incidents where he was threatened and assaulted by unknown assailants. The Principal Appellant and his family left Sri Lanka for Canada in 2015. The Principal Appellant's father was approached by unknown individuals in Sri Lanka while he was in Canada. These individuals were seeking information on the Principal Appellant. The Principal Appellant's father's home was subsequently vandalized by unknown individuals. The Principal Appellant returned to Sri Lanka in 2016 to assist his elderly father with the sale of his home. He then returned to Canada. The Principal Appellant and his family made refugee claims in Canada when it became obvious to the Principal Appellant that the situation in Sri Lanka would not change. ISSUES [6] The RPD Member found that the Principal Appellant was a credible witness. The RPD Member found that the Appellants had a viable Internal Flight Alternative (IFA) in Kandy and as a result rejected their claims. The Appellant's Counsel argues that the RPD Member made an error in her IFA assessment as the agent of harm in this case is the state and therefore the Appellants are at risk throughout the country. NEW EVIDENCE AND ORAL HEARING [7] The Appellant's counsel has not submitted any new evidence under Section 110(4) of the IRPA. He has not asked for an oral hearing. SCOPE OF RAD APPEAL [8] When reviewing the RPD decision, the panel is required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. The panel may defer to the RPD's credibility assessment of oral testimony, if the panel finds that the RPD had a meaningful advantage in the circumstances. Reasons will be provided in the panel's analysis if the panel finds that the RPD had a meaningful advantage. ANALYSIS OF THE MERITS OF THE APPEAL [9] The RPD Member found that the Principal Appellant was a credible witness. The panel has conducted its own independent assessment of the Principal Appellant's credibility and finds that he was a credible witness. He testified in a straightforward manner. His testimony was consistent with the objective evidence he presented in support of these claims. [10] The panel finds that the Principal Appellant was a member of the SLFP from 2005 onwards. The panel finds that the Principal Appellant has established that he began to have problems in Sri Lanka following the 2015 election where Rajapaksa lost the election. The Principal Appellant has been consistent regarding the problems he faced in Sri Lanka. He provided details of the events that led him and his family to make refugee claims in Canada. This information was provided to Canadian officials when he came forward to make his claim. His version of the problems he faced in Sri Lanka is corroborated by the documentary evidence he submitted in the form of police reports. His testimony at the RPD was consistent with the information he provided at his refugee intake as well as in the police report. The panel therefore finds that the Appellant is credible with respect to the problems he had in Sri Lanka. [11] The Principal Appellant returned to Sri Lanka in 2016. This is after the problems he faced in 2015 where he was threatened and assaulted by unknown assailants. The panel finds that the Principal Appellant provided a reasonable explanation for his return to Sri Lanka. He returned to Sri Lanka to aid his ailing father with the sale of his home. The Principal Appellant kept a low profile during the three week period he remained in Sri Lanka. The panel finds that his return to Sri Lanka was reasonable given his circumstances and the panel does not find that his return shows a lack of subjective fear on his part. [12] The panel finds that the Principal Appellant was targeted by the unknown assailants because of his political activity in Sri Lanka. Although he was unable to specifically identify the assailants, the panel finds that he has established on a balance of probabilities that he was targeted because of his support for Rajapaksa in general and his financial support for the rally challenging the 2015 election results. The panel finds that the RPD did not provide adequate reasons for finding that the unknown assailants could be distinguished from the Sri Lanka state agents. The panel finds that the Principal Appellant has established on a balance of probabilities that the unknown assailants who targeted, threatened and assaulted him were acting in concert with agents of the state who wanted Rajapaksa supporters silenced or eliminated. [13] The panel finds that the Appellants face a well-founded risk of persecution throughout Sri Lanka as a result of the Principal Appellant's political activity. The panel finds that the RPD Member was not correct in concluding that the Principal Appellant will not be at risk because he will no longer be involved in politics in Sri Lanka. The panel agrees with the Principal Appellant's Counsel that he should not have to stop/ hide his political activities in Sri Lanka in order to remain safe in the country. [14] The RPD Member noted that the Principal Appellant was able to leave Sri Lanka for Canada with his family and then returned there for three weeks and left the country once again. The RPD Member concluded that the Principal Appellant would have been intercepted by the authorities if he was being targeted by the Sri Lankan authorities. The panel finds this to be speculative. The panel acknowledges that there are entry and exit controls in Sri Lanka but that does not necessarily mean that he would be intercepted upon his return to the country. It would appear from the Principal Appellant's evidence that he was targeted by unknown individuals who were acting on the instructions of the Sri Lankan authorities. It appears that the authorities were targeting the Principal Appellant while trying to distance themselves officially from it by using unknown assailants. As the panel finds that the agent of harm in this case is the Sri Lankan authorities, the panel finds that the Appellants do not have a viable IFA in the country. [15] The panel has reviewed the objective evidence on the file regarding the country conditions in Sri Lanka. The panel agrees with the RPD Member that the situation regarding the political discourse in the country has improved. That being said, the panel finds that the evidence also shows that political opponents in Sri Lanka still face problems. The Principal Appellant played a significant role in SLFP. He was more than a mere member as he was a XXXX who XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He has established on a balance of probabilities, with credible evidence that he had contact with the upper echelon of the party. The panel finds that he would continue to be of interest to the authorities in Sri Lanka as he would continue to be perceived as an important individual that could have an impact by assisting the political opposition. [16] Having considered all the evidence, the panel finds that the Appellants have established that they face a serious risk of persecution in Sri Lanka. The panel therefore finds that they have established their claims under section 96 of the IRPA. Having found that they have established their claim under section 96 of the IRPA, the panel does not need to assess their claim under section 97 of the IRPA. REMEDIES [17] For all these reasons, the panel sets aside the determination of the RPD and substitutes its own by finding that the Appellants have established their claims under section 96 of the IRPA. The panel therefore finds that they are Convention refugees. CONCLUSION [18] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are Convention refugees. (signed) "Daniel Tucci" Daniel Tucci March 14, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). 2 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. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB7-04547 VB7-04548 / VB7-04549 / VB7-04550 RAD.25.02 (September 18, 2018) Disponible en français 6 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 (September 18, 2018) Disponible en français