VB9-07946

RAD File / Dossier de la SAR : VB9-07946 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision January 29, 2021 Date de la décision Panel Ron Liberman Tribunal Counsel for the person who is the subject of the appeal Jayaweera Liyange Anita Nalani Perera 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, a citizen of Sri Lanka, appeals a decision of the Refugee Protection Division (RPD) dated September 24, 2019, rejecting his claim for refugee protection on the grounds of the existence of an Internal Flight Alternative (IFA) in Kandy. I have conducted an independent analysis of all the evidence concerned, including the entire Appellant's Record and the oral testimony. I have determined the Appellant is at more than a minimal risk of persecution in the proposed IFA, and that he is a Convention1 refugee. BACKGROUND [2] The Appellant alleges as follows. He is a Sinhalese male, aged XXXX. The Appellant and his late wife travelled to XXXX XXXX Sri Lanka on a holiday in XXXX 2013. During that visit, they befriended a young woman; in XXXX 2014, she visited the Appellant and his wife in Colombo. A few weeks later, the Appellant was detained by Sri Lankan army members and taken to Colombo Fort for questioning by the Criminal Investigation Department (CID). He was interrogated and accused of being a Sinhalese traitor who had helped the young woman they had befriended, who was suspected of being a member of the Liberation Tigers of Tamil Eelam (LTTE). The Appellant was beaten during the interrogation, and then released after his brother-in-law paid a bribe. [3] In XXXX 2014, five men from the CID abducted the Appellant on suspicion of helping his daughter in Canada assist LTTE members to travel to Canada. He was taken blindfolded to a building where he was once again beaten and interrogated. He was again released after his wife's family made bribe payments. Unfortunately, several weeks later, the Appellant's wife suffered a XXXX XXXXand died. The Appellant subsequently travelled to Canada in 2014. He remained in Canada for almost a year before returning to Sri Lanka on XXXX XXXX XXXX 2015. He again travelled to Canada on XXXX XXXX XXXX 2015 and returned to Sri Lanka on XXXX XXXX XXXX 2017. He then returned to Canada on XXXX XXXX XXXX 2017. The Appellant sought refugee protection on XXXX XXXX XXXX 2018. [4] The Appellant fears that, if returned to Sri Lanka, he faces persecution, arrest, detention, and a risk to his life from the government who perceive him to be a sympathizer of the LTTE. He also believes it is unreasonable for him to live in the proposed IFA of Kandi because he has XXXX and cannot live on his own. RPD Findings [5] The RPD noted the Appellant's prior re-availments to Sri Lanka. The RPD found the Appellant did not approach the Sri Lankan police for protection as he claimed, but it did not otherwise make any adverse credibility findings against the Appellant. The RPD found that there was no serious possibility that the police in Colombo would have the ability to locate him in Kandy or a serious possibility of other harm, and that it was reasonable in all the circumstances for him to relocate to Kandy. Appellant's Arguments [6] The Appellant argues the RPD erred in its assessment of risk, particularly as it relates to the forward-facing risk faced by the Appellant. The Appellant also raises an issue of procedural fairness because the Appellant did not have an interpreter at the hearing. ROLE OF THE RAD [7] 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. NEW EVIDENCE [8] The Appellant has requested I admit an unsworn statement dated XXXX XXXX XXXX 2019, in the form of a letter from his daughter. [9] To decide whether to admit this new evidence, I must consider the requirements of section 110(4) of the Immigration and Refugee Protection Act (IRPA)3 to determine whether this is evidence that arose after the rejection of the claim, or was not reasonably available when the claim was rejected, or is evidence which the Appellant could not reasonably have been expected to present at the time of the rejection. If I find that the evidence meets the test in section110(4), I must also, in order to admit it, determine that the evidence meets the modified factors of credibility, relevance and newness as specified in Raza4 and Singh.5 The Appellant is required to explain how the new evidence that has been provided meets the requirements of section 110(4), as is clarified in Tiodunmo.6 [10] Counsel has not clearly explained how this document meets the requirements of section 110(4) of the IRPA. The Memorandum simply states that the Appellant's daughter was an observer at the RPD hearing. [11] The timing in respect of the decision is not entirely clear, because the transcript reflects that at the end of the hearing, the RPD dismissed the Appellant and his daughter, advising them that they would receive a decision in the mail. Nevertheless, the transcript then reflects a decision from the RPD, which I have to assume was rendered orally on the day of the hearing, September 16, 2019, and which was subsequently signed on September 24, 2019 and mailed to the Appellant and his Counsel. The decision that was mailed commences by stating, "This unedited transcript constitutes the member's written reasons for decision."7 [12] In considering all the attendant circumstances, I find the Appellant could not reasonably have become aware of any difficulties that might have been caused by not using an interpreter until the hearing occurred. I find he could not reasonably have been expected to provide this new evidence to the RPD prior to the RPD's decision, which was made on the day of the hearing, but apparently in his absence. I therefore find this item of proposed new evidence meets the requirements of section 110(4). I find it has a measure of credibility sufficient to meet the Raza criterion in that regard, because it appears to have been provided by a person who had a first-hand opportunity to observe the proceedings, that it meets the Raza criterion of relevance, because it is potentially capable of proving that the Appellant did not understand some of the proceedings, and it meets the Raza criterion of newness because it is potentially capable of contradicting credibility findings made by the RPD on the basis of questions which the Appellant did not understand. I admit this new evidence. ORAL HEARING [13] The Appellant has requested that the Refugee Appeal Division (RAD) hold an oral hearing in these circumstances, where new evidence has been admitted. [14] Section 110(6) of the IRPA8 states that the RAD may hold a hearing if there is new evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, that is central to the decision with respect to the refugee protection claim and that, if accepted, would justify allowing or rejecting the refugee protection claim. In view of my further analysis below, I find the new evidence that has been admitted is insufficient on its own to justify allowing or rejecting the claim. The RAD therefore will not hold a hearing in this case. ANALYSIS Was the Appellant afforded procedural fairness? [15] I find, despite the new evidence that has been admitted, that in this instance, the hearing was fair overall. I give some weight to the letter of the Appellant's daughter, however she is an interested party in this matter and I find, having examined the transcript of the hearing, and as explained below, that she has exaggerated the difficulties her father experienced in understanding the proceedings. [16] I note that, perhaps unbeknownst to the Appellant's daughter, her father and his Counsel indicated in response to section 10(b) of the Appellant's Basis of Claim (BOC) form9 that no interpreter was required for the hearing. Furthermore, the Appellant signed his Schedule A form without the signature of an interpreter on it to indicate that the contents had been interpreted to him,10 and he signed to confirm that his BOC form was complete, true, and correct without needing to use an interpreter. [17] The Appellant could have requested an interpreter be provided by the government for the hearing, but he did not do so, and in making this decision, he had the assistance of Legal Counsel. Neither did Legal Counsel object at the RPD hearing to the effect that his client was unable to properly understand the proceedings. I have taken note of the legal arguments contained in the daughter's letter when making my decision, and am conscious of the overall difficulties attendant to a hearing, but I find in this case, based on the evidence before me, the lack of an interpreter did not interfere significantly with the Appellant's ability to answer questions such that there is an issue of procedural fairness or a breach of natural justice. To the extent that the Appellant may have struggled a little at times to properly understand the questions posed by the RPD, I have made allowance for that that when making my decision. However, in this case, I do not find that the Appellant not having an interpreter amounts in these circumstances amounts to a breach of procedural fairness or natural justice, because I find that to a large extent he was able to understand the questions the RPD asked, and to respond. The RAD therefore declines to remit this matter to the RPD for re-determination owing to a lack of procedural fairness. IFA [18] Nevertheless, I find that the RPD erred in determining that there was an IFA for the Appellant in Kandy. The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal decision in Rasaratnam:11 The Immigration and Refugee Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA. Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claim, for him to seek refuge there. [19] To establish that there is a viable IFA, both prongs of the test must be satisfied. [20] The RPD, because it made only one negative credibility finding against the Appellant, effectively accepted the balance of his testimony was true, in accordance with the presumption of truthfulness for sworn testimony established in Maldonado.12 The negative credibility finding relates to the omission from the Appellant's BOC form of his visit to the police. The issue of the omission from the BOC form is not contested on appeal, and I find no reason, in my independent examination of the totality of the evidence, to depart from these findings of the RPD. [21] The RPD noted the Appellant's multiple journeys to Sri Lanka after visiting his daughter in Canada, and that the authorities had not detained him on the multiple occasions when he entered and exited Sri Lanka. The RPD did not however make a specific finding as to whether the Appellant is on a watch-list, but it noted that those on the watch-list are likely to be monitored. [22] I find that the fact that the Appellant was able to leave Sri Lanka previously without any problems occurring is not an accurate indicator of whether he faces a serious possibility of persecution upon return. There is undisputed evidence that the Appellant was detained by the Sri Lankan authorities on two occasions. [23] The RPD also noted the Appellant's testimony that the police approached his neighbours in 2017 to ask about him, but found that, later, when the Appellant and his neighbours became worried about the presence of unknown motor vehicles in the area, that there was no evidence that these cars were connected to the Sri Lankan authorities. I agree with the RPD that there is no direct evidence to that effect. For that reason, I am unable to conclude, on a balance of probabilities, that the unknown motor vehicles were so connected. [24] Despite this, I must examine the forward-facing risk to the Appellant. I note that the Appellant's Sri Lankan passport13 expired in 2019, and that, as is standard procedure, it was seized by the Canadian authorities. He is therefore in my view likely to be treated as a failed refugee Claimant if returned to Sri Lanka. I find, as per the objective evidence, that an individual such as the Appellant who has been twice detained by the Sri Lankan authorities and who is returned as a failed refugee Claimant from a Western country such as Canada would likely be closely monitored.14 The objective evidence indicates that returnees are interrogated at the airport (for between a few hours to several days) and that the returnee may be visited by the police, usually by the CID, at their home.15 [25] Furthermore, the situation in Sri Lanka has altered since the accession to power in that country of the Rajapaksa family. 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."16 [26] In these circumstances, I find that, as a perceived supporter of the LTTE who has already been twice detained, and is returning from Canada as failed refugee Claimant that, even though he is Sinhalese, the objective evidence confirms that the Appellant is likely to be of considerable interest to the authorities. I find, on a balance of probabilities, they would know where he is located both because of the requirements to register his address, which the Appellant points out on appeal, and also because of the interrogation he would need to undergo at the airport. [27] The objective evidence confirms that persons arrested by the Sri Lankan police are often "roughed up" to extract confessions and denied access to lawyers and family members.17 I therefore agree with the Appellant's daughter that, because he would be living on his own, were the Appellant to be detained again, it is unlikely that his detention would quickly become known by his family or his deceased wife's family in Sri Lanka. The Appellant's age already exceeds the life expectancy of the average Sri Lankan male, which is XXXX years,18 and I agree with the Appellants that, on a balance of probabilities, his health would be an additional concern if he were detained and interrogated by the Sri Lankan police, given their known methods and also given the poor prison conditions noted in the objective evidence.19 His return from Canada is, in my view, also likely to be of particular interest to the Sri Lankan authorities because they previously detained him on suspicion of helping LTTE members go to Canada through his daughter.20 [28] Based on the objective evidence and on a consideration of the totality of the evidence before me, including the profile of this Appellant, I find if returned to Sri Lanka, he faces more than a minimal risk of harm by the Sri Lankan authorities in the proposed IFA of Kandy because of his imputed support of the LTTE. The proposed IFA therefore fails the first prong of the test, and it is unnecessary in this context for me to analyze the second prong of the IFA. State Protection [29] It is however necessary in this context for me to analyze whether the Appellant would enjoy state protection in Sri Lanka. I accept the finding of the RPD that the Appellant likely did not approach the police for protection. Sri Lankan is however, as is general knowledge, not a highly-functioning democracy, and since the agent of persecution in the case of a person suspected of membership in the LTTE is the Sri Lankan government, I find it would be reasonable for such a person not to have dealings with the police of their own volition. I find in consequence, and because the Sri Lankan police operate nationally across the country, there is no state protection available to the Appellant in Sri Lanka CONCLUSION [30] For the preceding reasons, I find that the Appellant meets all the requirements under section 96 of the IRPA21 to be a Convention refugee. DETERMINATION [31] Pursuant to section 111(1)(b) of the IRPA,22 the RAD 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 January 29, 2021 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 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 110(4). 4 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 5 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 6 Tiodunmo v. Canada (Citizenship and Immigration), 2019 FC 1489. 7 Exhibit RPD-1, RPD Record, at p. 4. 8 IRPA, section 110(6). 9 Exhibit RPD-1, RPD Record, at p. 17 10 Exhibit RPD-1, RPD Record, at p. 34 11 Rasaratnam v. Canada (Minister of Employment and Immigration) [1992] 1 FC 706 (FCA). 12 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (FCA). 13 Exhibit RPD-1, RPD Record, at p. 40. 14 National Documentation Package (NDP) for Sri Lanka (September 1, 2020), item 14.1: Entry and exit procedures at international airports, including security screening and documents required for citizens to enter and leave the country; treatment of returnees upon arrival at international airports, including failed asylum seekers and people who exited the country illegally; factors affecting the treatment, including ethnicity and religion (2015-November 2017), Immigration and Refugee Board of Canada, 10 November 2017. 15 Ibid, at item 14.6: Treatment by authorities of returnees to Sri Lanka, including failed refugee claimants and family members of persons who have left Sri Lanka and claimed refugee status (2017-August 2020), Immigration and Refugee Board of Canada, at para. 2.1. 16 Ibid, at 2.15: Sri Lanka: And the crackdown begins, International Truth and Justice Project; Journalists for Democracy in Sri Lanka, January 2020. 17 Ibid, at item 2.1: Sri Lanka. Country Reports on Human Rights Practices for 2019, United States. Department of State, 11 March 2020, at para. 4. 18 Ibid, at item 1.2: Sri Lanka. The World Factbook, United States. Central Intelligence Agency, 17 August 2020. 19 Ibid, at item 2.1. 20 Exhibit RPD-1, RPD Record, Narrative of the Appellant, at p. 20. 21 IRPA, section 96. 22 IRPA, section 111(1)(c). --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-07946 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