TB4-03284

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 : TB4-03284 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 4, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane 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 (de la) ministre REASONS FOR DECISION [1] 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. [2] The Appellant submitted two new documents to be considered as new evidence pursuant to s. 110(4) of the Act, and made two applications to submit late disclosures. The Appellant suggests that the RPD's credibility assessment is not reasonable. The Appellant requests a new hearing before the RAD pursuant to s.110(6) of the Act. DETERMINATION [3] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA or the Act), the Refugee Appeal Division (RAD) confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a persons in need of protection. This appeal is dismissed. Background [4] The claims of the Appellant and his brother were heard together and both claims were denied by the RPD. This appeal is regarding only one of the two brothers. [5] The RPD found the Appellant lacking in credibility and subjective fear of persecution. [6] The Appellant alleged before the RPD that he fears the State Authorities due to his membership in the political party National Unity Alliance (NUA) and his perceived connection to the LTTE. Moreover, he alleged that he is afraid of the violence directed toward Muslims by Sinhalese extremists groups; in particular, the Bodu Bala Sena (BBS). The BBS came to his father's store and told him to close the store as Sri Lanka belonged to the Sinhalese. After this incident, he joined the NUA led by XXXX XXXX and started receiving threats accusing him of working together with the LTTE supporters. [7] He also alleged that in XXXX 2013, he was arrested and questioned by police and they told him that they had information that he and his brother XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX after the war ended in May 2009. They also alleged that the NUA is pro-LTTE. While in police custody, he was beaten and pressured to confess to being involved in anti-government activities. He was released after two days with a warning. [8] He went to the US on XXXX XXXX, 2013. In XXXX 2013, authorities visited his parents' home and told his mother that he is to report to the police station upon his return to Sri Lanka. He left USA arrived in Canada and claimed protection. New Documents [9] On appeal the Appellant submitted two documents - a letter from his father, and some extracts from US DOS report. Both of these postdate the rejection of the claims. Late Disclosures (Rule 29 and 37) [10] The Appellant also submitted two applications to file documents after the date of perfection. I will decide whether to allow these applications before assessing whether documents submitted on appeal are admissible pursuant to s. 110(4) of the Immigration and Refugee Protection Act (the Act). [11] The evidence Appellant submitted late is in the application of July 8, 2014 and includes: A. Letter from father dated XXXX XXXX, 2014 discussing an incident that occurred on XXXX XXXX, 2014; B. Letter from the father's lawyer dated XXXX XXXX, 2014; C. Documentary evidence post-dating the RPD rejection. [12] The late evidence in the application of May 25, 2014 is a letter from his father dated XXXX XXXX, 2014 including the envelope. [13] Late Disclosures Rules 29 and 37 Rule 29 reads: (2) If a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37. (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. (4) In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. Rule 37 is regarding How to Make an Application, and states: (4) Unless these Rules provide otherwise, any evidence that the party wants the Division to consider with a written application must be given in an affidavit or statutory declaration that accompanies the application. [14] The late disclosure of May 26 could have been provided earlier. The application states that the cause for the delay in relaying the alleged events is that the father-in-law of the counsel (apparently of Appellant's father) was ill. I do not have a statement from the counsel whose father in law was ill that caused the delay in submitting this document; I don't know where this counsel is and why this letter, which is not attested to or a declaration could not be written and sent, or why another counsel could not be asked to prepare such a letter. The Appellant's father is a successful businessman with business operations in more than one country and I cannot understand why he could not get another counsel to prepare a letter. Moreover, the document is a letter and it does not meet the RAD rule 37 that requires that the document submitted to be either as an affidavit or a statutory declaration. For the foregoing reasons, the application dated May 25 is denied. [15] The Application of July 8 also is denied for the reasons cited above. In addition, the letter from the father is regarding police questioning him about a friend of the Appellant's father, someone named "XXXX." Police suspected the Appellant's father to be involved with XXXX activities. XXXX was apprehended by the police and the car owned by the Appellant's father was also impounded. The police also asked the Appellant's father six questions, whether XXXX helped the Appellant leave Sri Lanka. None of these questions on pages 3 and 4 of the Application are relevant or material to the appeal. Similarly, page 5 is regarding car released on bond and other articles are about clashes between Muslims and Buddhists. [16] For the reasons cited above, the application of July 8 is also dismissed. Documents submitted on Appeal. [17] In order for the RAD to consider the documents submitted on appeal as new evidence, they must meet the criteria set out in subsection 110(4) of the Act which provides that the evidence proffered must not have been reasonably available at the time of the hearing, and states: S.110 (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [18] Additionally, if the evidence meets the statutory criteria, it must also be assessed against the factors set out in Raza,1 which is the leading case on "new" evidence. Even though the Raza case was specific to the Pre-Removal Risk Assessment (PRRA) process, I consider it relevant to the RAD because the wording in s. 113(a) of the Act, which is regarding PRRA provisions, and ss. 110(4) of the IRPA regarding the RAD are similarly worded. [19] In Raza, the court posed the following questions that need to be asked in deciding whether to accept new evidence for a Pre-Removal Risk Assessment case. These, as summarized by the Court, are: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or, (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or, (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. [20] The Appellant submits that the letter from the father of the Appellant, dated XXXX XXXX XXXX 2014, could not reasonably be obtained. The letter states that the author (father of the Appellant) was travelling and dealing with his business issues thus could not write the letter. I do not consider this to be a reasonable explanation for not sending an affidavit or a sworn declaration stating that the state authorities are harassing the family and making serious allegations against the two Appellants. He states that he is a successful businessman and appears to have international business connections and/or offices and thus it would not be difficult to send a proper document outlining the issues prior to the rejection of the claims. Therefore, this document is not accepted as new evidence. [21] The second document submitted by the Appellant is some extracts from the US DOS report which was published post-rejection. According to the Appellant, this report "corroborates the objective conditions that continue (and worsen)." This document, while it meets the express statutory conditions of s. 100(4) of the Act, it fails the Raza Newness test particularly 3b and c above. Therefore, this document also is not accepted as new evidence. [22] Therefore, this Appeal will be considered based on the Appellant's Record, the RPD record and the Appellant's memorandum. [23] The Appellant submitted that "the RAD should not defer to the RPD," and "the standard of review is that the review by the RAD is de novo subject to the evidentiary rules regarding new evidence" and "If there are errors of fact, the case must be re-determined by the RPD". [24] In Huruglica2 the most recent case that considered the issues relating appeals to the RAD, the Federal Court stated that the RAD is to conduct its own independent assessment of the evidence and decide if the person is in need of refugee protection, and that the RAD is to show deference to RPD credibility findings and findings in areas where the RPD has a particular advantage (over the RAD). Merits of the Appeal [25] The RPD identified number of issues with the Appellant's testimony and rejected the claim. The Appellant submits that "the RPD was being disingenuous" in credibility assessment while considering a contradiction due to Appellant's statements regarding when the alleged threats began. The RPD stated that the Appellant testified that threats started "a week after he joined the party"; however, in his Basis of Claim form (BOC), he stated "a couple of days after he joined the party." The Appellant submits that "This was a major finding by the RPD". [26] I am not persuaded. After reviewing the record, it is clear that the alleged threatening calls are central to the claim and thus the RPD was expected to question the Appellant as to when these calls started. I note that the RPD provided cogent reasons for stating that "this discrepancy was not adequately explained." [27] I also note that the RPD did not reject the claim solely on this issue; this is just one of the many issues raised by the RPD in its reasons. The RPD also noted material omissions. For example, the RPD noted that, while the Appellant's narrative stated that the alleged accusation against the Appellant was that he was working with the LTTE; however, he did not mention this in his testimony despite repeated attempts by the Panel to ask whether there was anything else mentioned by the alleged caller. [28] The RPD also noted that the Appellant's testimony was vague about when the calls were received as well as the contradictions regarding what information was conveyed to him in the alleged phone calls. Moreover, the RPD noted that the alleged call messages was changing through the testimony. Moreover, the Appellant testified that the number of calls were from the same caller, and he is from the extremist Sinhalese group Bodu Bala Sena (BBS). The Appellant statement that the caller was from BBS is speculation on his part. He provided no evidence that the calls were from BBS. Based on the foregoing, I cannot find that the RPD was either disingenuous or unreasonable or erred in finding that "on a balance of probabilities, he did not receive phone calls as alleged." [29] The Appellant also suggests that the RPD's finding, regarding the Appellant's failure to seek asylum when XXXX XXXX was arrested, and that fear of persecution is subjective and "people should not assume that people make refugee claims at the drop of a hat." The RPD noted that the Appellant travelled to the USA on XXXX XXXX, 2013, stayed there for approximately XXXX months and XXXX XXXX was arrested on XXXX XXXX, 2013; and BBS also attacked a mosque in Sri Lanka during the time he was in the USA, yet he did not claim protection. The RPD was correct in drawing an adverse inference due to the Appellant's failure to claim protection at the first opportunity3 which was in fact several months. Regarding failure to claim after his party leader was arrested, the RPD was not incorrect in considering that it was one of the factors in its finding that the Appellant lacked subjective fear because his claim is also based on political opinion. [29] The Appellant takes issue with the RPD's finding that found that the smuggler took his passport even though he did not help in procuring any travel documents. Having heard the audio recording and a careful review of the record, I support the RPD's implausibility finding. The court in Lin4 stated: [69] The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole. The RPD does not necessarily have to accept a witness's testimony simply because it was not contradicted. [70] Questions of credibility and weight of evidence are within the jurisdiction of the RPD as the trier of fact. [30] The Federal Court in Huruglica (above) directs the RAD to consider totality of evidence before it. In that light, I have several other concerns about the Appellant's story regarding his entry into Canada. The Appellant stated that the alleged smuggler was arranged by the Appellant's father, the same father who did not have time to write a letter or affidavit about the problems his son faced from the Sri Lankan authorities. Moreover, he was able to arrange a smuggler in the USA from somewhere in a far off land. (It is not clear whether he arranged the smuggler while he was in Saudi Arabia, UAE or China). The RPD has the claimant before it and heard from him directly and thus has an advantage over the RAD. Therefore, the RPD is owed deference on its credibility findings. Thus, I find that the RPD's finding that the Appellant's story was implausible is supportable. [31] I also note that the Appellant applied to enter Canada legally twice but was denied a visa. On this issue the RPD stated in its reasons: "From his history, the panel can surmise that the claimant had a pre-existing desire and motivation to come to Canada. When looked at in conjunction with all other concerns present in his case, the panel finds that the claimant is not a credible witness and events in Sri Lanka did not take place as alleged". The RPD is in its right to consider the Appellant's history of his attempts to enter Canada in its credibility finding. [32] The Appellant also "submitted that the RPD erred in failing the MP's letter for what it stated." I am not persuaded. The RPD provided cogent reasons for assigning little weight to the letter. Moreover, this letter, in fact, states the concerns of the father, who has not sought refuge anywhere. The letter does not mention anything about a serious chance of persecution or harm for the Appellant in Sri Lanka. Moreover, the RPD did not state that the MP is a liar. [33] Based on the foregoing and a thorough review of all of the evidence before me I find that the Appellant is neither a Convention refugee nor a protected person. DISPOSITION [34] 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. [25] This appeal is dismissed. (signed) 'Atam Uppal' Atam Uppal September 4, 2014 Date 1 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 3 Bello v Canada (Minister of Citizenship and Immigration) (1997), 70 ACWS (3d) 888, [1997] FCJ No 446 (QL/Lexis) (TD). 4 Lin v. Canada (Citizenship and Immigration), 2011 FC 1235 (CanLII), --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03284